-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JYkXLhB/7jz1H6PIVixFGDtkDW0yIS1arf0DMG071/SBswMYpaateCNGinIl7H6T DU5uEsuEZVTHUE0tsXWJzw== 0000950123-10-047272.txt : 20100510 0000950123-10-047272.hdr.sgml : 20100510 20100510165340 ACCESSION NUMBER: 0000950123-10-047272 CONFORMED SUBMISSION TYPE: S-4 PUBLIC DOCUMENT COUNT: 15 FILED AS OF DATE: 20100510 DATE AS OF CHANGE: 20100510 FILER: COMPANY DATA: COMPANY CONFORMED NAME: US BANCORP \DE\ CENTRAL INDEX KEY: 0000036104 STANDARD INDUSTRIAL CLASSIFICATION: NATIONAL COMMERCIAL BANKS [6021] IRS NUMBER: 410255900 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4 SEC ACT: 1933 Act SEC FILE NUMBER: 333-166706 FILM NUMBER: 10817060 BUSINESS ADDRESS: STREET 1: U.S.BANCORP STREET 2: 800 NICOLLET MALL CITY: MINNEAPOLIS STATE: MN ZIP: 55402 BUSINESS PHONE: (651)466-3000 MAIL ADDRESS: STREET 1: U.S.BANCORP STREET 2: 800 NICOLLET MALL CITY: MINNEAPOLIS STATE: MN ZIP: 55402 FORMER COMPANY: FORMER CONFORMED NAME: FIRST BANK SYSTEM INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FIRST BANK STOCK CORP DATE OF NAME CHANGE: 19720317 S-4 1 c58008sv4.htm FORM S-4 sv4
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As filed with the Securities and Exchange Commission on May 10, 2010
Registration No. 333-      
 
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
 
 
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
 
 
 
 
U.S. Bancorp
(Exact name of registrant as specified in its charter)
 
 
 
 
         
Delaware
(State or other jurisdiction of
incorporation or organization)
  6711
(Primary Standard Industrial
Classification Code Number)
  41-0255900
(I.R.S. Employer
Identification Number)
 
800 Nicollet Mall
Minneapolis, Minnesota 55402
(651) 446-3000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
 
Lee R. Mitau, Esq.
800 Nicollet Mall
Minneapolis, Minnesota 55402
(651) 466-3000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
 
 
 
 
Copies to:
 
     
James J. Barresi, Esq.
Aaron A. Seamon, Esq.
Squire, Sanders & Dempsey L.L.P.
221 E. 4th Street, Suite 2900
Cincinnati, Ohio 45202
(513) 361-1200
  Michael J. Schiavone, Esq.
Lona Nallengara, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-4000
 
 
 
 
Approximate date of commencement of proposed sale of the securities to the public:  As soon as practicable after this registration statement becomes effective.
 
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.  o
 
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o
 
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  o
 
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
 
             
Large accelerated filer þ
  Accelerated filer o   Non-accelerated filer o   Smaller reporting company o
        (Do not check if a smaller reporting company)    
 
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
 
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  o
 
Exchange Act Rule 14d-1(d) (Cross-Border Third Party Tender Offer)  o
 
CALCULATION OF REGISTRATION FEE
 
                                         
              Proposed Maximum
      Proposed Maximum
      Amount of 
 
Title of Each Class of
    Amount to be
      Offering Price
      Aggregate
      Registration 
 
Securities to be Registered     Registered(1)       per Share(2)       Offering Price(2)       Fee(3)  
Depositary Shares, representing interests in shares of Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share
      1,250,000       $ 1,000       $ 1,250,000,000       $ 89,125  
Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share(4)
      12,500                          
                                         
(1) This Registration Statement registers the estimated maximum number of depositary shares, representing interests in shares of Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share (the “Preferred Stock”), of U.S. Bancorp (the “Registrant”), that may be issued in connection with the exchange offer (“Exchange Offer”) by the Registrant for 6.189% Fixed-to-Floating Rate Normal ITS issued by USB Capital IX (the “Normal ITS”).
 
(2) Estimated solely for purpose of calculating the registration fee pursuant to Rule 457(f)(2) under the Securities Act of 1933, as amended (the “Securities Act”).
 
(3) Computed in accordance with Section 6(b) of the Securities Act by multiplying .00007130 by the proposed maximum aggregate offering price.
 
(4) Each depositary share represents a 1/100th ownership interest in a share of Preferred Stock. Because no separate consideration will be received by the Registrant for the Preferred Stock, no registration fee is required with respect to these securities.
 
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
 


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The information in this Prospectus and Consent Solicitation Statement is not complete and may be changed. We may not complete the exchange offer or issue these securities until the registration statement filed with the Securities and Exchange Commission is effective. This Prospectus and Consent Solicitation Statement is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
 
SUBJECT TO COMPLETION, DATED MAY 10, 2010
 
PRELIMINARY PROSPECTUS AND CONSENT SOLICITATION STATEMENT
 
(COMPANY LOGO)
 
Offer to Exchange
Up to 1,250,000 Depositary Shares, Each Representing a 1/100th Interest in a Share of Series A
Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share (the “Depositary Shares”)
for
Any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal ITS issued by USB Capital IX,
each with a liquidation amount of $1,000 (the “Normal ITS”) CUSIP No. 91731K AA 8
and
Solicitation of Consents for Proposed Amendments to the Related Trust Agreement and
Junior Subordinated Indenture
 
THE EXCHANGE OFFER AND THE CONSENT SOLICITATION WILL EXPIRE AT 11:59 P.M., NEW YORK CITY
TIME, ON JUNE 7, 2010, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED BY US (THE
“EXPIRATION DATE”). TENDERS MAY BE WITHDRAWN, AND CONSENTS MAY BE REVOKED, AT ANY TIME AT OR PRIOR TO THE EXPIRATION DATE.
 
 
We are offering to exchange up to 1,250,000 Depositary Shares for any and all of the 1,250,000 outstanding Normal ITS issued by USB Capital IX (the “Trust”), on the terms and subject to the conditions set forth in this Prospectus and Consent Solicitation Statement and in the accompanying letter of transmittal and consent (the “Letter of Transmittal and Consent”). We refer to this offer as the “Exchange Offer.”
 
For each Normal ITS that we accept for exchange in accordance with the terms of the Exchange Offer, the tendering holder will receive one Depositary Share. Each Depositary Share represents a 1/100th ownership interest in a share of our Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share (the “Preferred Stock”). We will also pay cash in an amount equal to any accrued and unpaid distributions on each Normal ITS accepted in the Exchange Offer up to, but excluding, the settlement date (defined below). Each share of Preferred Stock will be identical in all respects to the Preferred Stock to be issued upon settlement of the stock purchase contracts forming part of the Normal ITS, except that non-cumulative dividends, if declared, will accrue on the Preferred Stock underlying the Depositary Shares at a rate of 7.189% per annum until the later of April 15, 2011 and the stock purchase date (defined below). During that same period, holders of the Normal ITS will be entitled to receive distributions at a rate of 6.189% per annum.
 
In conjunction with the Exchange Offer, we are also hereby soliciting (the “Consent Solicitation”) consents (the “Consents”) from holders of at least a majority in liquidation amount of the Normal ITS (which corresponds to at least a majority of the Normal ITS) to the Proposed Amendments (defined below). Holders of Normal ITS may deliver Consents in respect of their Normal ITS in the Consent Solicitation without also tendering such Normal ITS into the Exchange Offer. Such holders will be eligible to receive a cash consent fee of $1.25 (the “Consent Fee”) for each Normal ITS for which a Consent is properly received and not properly withdrawn at or prior to the Expiration Date. However, such holders will not receive the Depositary Shares to be issued in the Exchange Offer and will only receive the Consent Fee. The Consent Fee is equal to 0.125% of the liquidation amount of each Normal ITS.
 
We encourage you to read and carefully consider this Prospectus and Consent Solicitation Statement in its entirety, in particular the risk factors beginning on page 24.
 
The Normal ITS are listed on the New York Stock Exchange under the symbol “USBTP.” We intend to apply for listing of the Depositary Shares on the New York Stock Exchange under the symbol “USB Pr A.” If approved for listing, we expect trading of the Depositary Shares on the New York Stock Exchange to commence within a 30-day period after the initial delivery of the Depositary Shares.
 
None of U.S. Bancorp, the trustees of the Trust, the Dealer Managers, the Information and Exchange Agent or any other person is making any recommendation as to whether you should tender your Normal ITS or consent to the Proposed Amendments. You must make your own decision after reading this Prospectus and Consent Solicitation Statement and the documents incorporated by reference herein and consulting with your advisor.
 
The Depositary Shares are not savings accounts, deposits or other obligations of any of our bank or non-bank subsidiaries and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency.
 
Neither the Securities and Exchange Commission (the “SEC”), any state securities commission, the Federal Deposit Insurance Corporation, nor any other regulatory body has approved or disapproved of the Exchange Offer or of the securities to be issued in the Exchange Offer or determined if this Prospectus and Consent Solicitation Statement is truthful or complete. Any representation to the contrary is a criminal offense.
 
Lead Dealer Manager and Structuring Advisor Co-Dealer Manager                    
 
Deutsche Bank Securities U.S. Bancorp Investments, Inc.
 
, 2010


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Normal ITS validly tendered and not withdrawn will be subject to proration as described in this Prospectus and Consent Solicitation Statement if we determine there is any likelihood that the New York Stock Exchange continued-listing condition described below may not be satisfied based on consultation with the New York Stock Exchange. Any proration will not revoke a holder’s Consents to the Proposed Amendments. If proration occurs, a holder will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration.
 
In the Consent Solicitation, upon the terms and subject to the conditions specified in this Prospectus and Consent Solicitation Statement, we are soliciting Consents from holders of at least a majority in liquidation amount of the Normal ITS (which corresponds to at least a majority of the Normal ITS) to the following proposed amendments (the “Proposed Amendments”):
 
  •  proposed amendments to the trust agreement of the Trust that would allow us to retire the Normal ITS that we acquire in the Exchange Offer and authorize the trustees of the Trust to approve the proposed amendments to the collateral agreement and stock purchase contract agreement described below,
 
  •  proposed amendments to the indenture pursuant to which the junior subordinated notes which currently underlie the Normal ITS were issued that we believe will facilitate the remarketing of the junior subordinated notes, and
 
  •  proposed amendments to the collateral agreement and stock purchase contract agreement relating to the Normal ITS that would allow for the settlement of the Exchange Offer and the related cancellation of the junior subordinated notes and stock purchase contracts that correspond to the Normal ITS acquired in the Exchange Offer.
 
For more information on the Consent Solicitation and the Proposed Amendments, see “The Exchange Offer and the Consent Solicitation — The Consent Solicitation.”
 
Holders that validly tender their Normal ITS pursuant to the Exchange Offer will be required to, and will be deemed to have, validly delivered their Consents. Holders of Normal ITS may validly deliver their Consents without tendering the related Normal ITS. If the requisite Consents are received and the Proposed Amendments become operative, we will pay each holder of Normal ITS that validly delivers and does not validly revoke Consents in respect of such Normal ITS, without also tendering its Normal ITS into the Exchange Offer, the Consent Fee of $1.25 for each Normal ITS for which a Consent is properly received and not properly withdrawn at or prior to the Expiration Date. Such holders, however, will not receive the Depositary Shares to be issued in the Exchange Offer and will only receive the Consent Fee. The Consent Fee is equal to 0.125% of the liquidation amount of each Normal ITS.
 
The purpose of the Exchange Offer is to improve our capital structure by replacing the Normal ITS, which are hybrid securities, with the Preferred Stock, which is a more traditional form of equity capital. In addition, by retiring the junior subordinated notes that correspond to the Normal ITS that we acquire in the Exchange Offer, we believe we will facilitate any future remarketing of the junior subordinated notes. We aim to further facilitate any such remarketing by adopting the Proposed Amendments in the Consent Solicitation.
 
The Exchange Offer and the Consent Solicitation will expire at 11:59 p.m., New York City time, on June 7, 2010 (unless we extend it). We refer to such date and time (as it may be extended) as the “Expiration Date.” You may withdraw any Normal ITS that you tender at any time prior to the Expiration Date (and, if not previously accepted for exchange, after the expiration of 40 business days commencing on May 10, 2010). A valid withdrawal of the Normal ITS will be deemed a revocation of any related Consents. Consents delivered that are accompanied by a tender of Normal ITS may only be validly revoked by validly withdrawing the corresponding previously-tendered Normal ITS at or prior to the Expiration Date. Any Consents delivered that are not accompanied by a tender of Normal ITS may be revoked at any time at or prior to the Expiration Date.
 
The Depositary Shares will be issued, and Consent Fees will be paid, on the “settlement date” for the Exchange Offer, assuming that the conditions to such payments are satisfied. Subject to the terms and conditions of the Exchange Offer, the settlement date for the Exchange Offer will occur promptly following the Expiration Date. Assuming that the Exchange Offer and Consent Solicitation are not extended, we expect that the settlement date will be on or about the third business day following the Expiration Date.


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The Exchange Offer is subject to the conditions set forth below in the section entitled “The Exchange Offer and the Consent Solicitation — Conditions of the Exchange Offer,” including, among other things:
 
  •  the SEC having declared effective the registration statement of which this Prospectus and Consent Solicitation Statement forms a part (which condition cannot be waived by us),
 
  •  the receipt of valid Consents from holders of at least a majority in aggregate liquidation amount of the outstanding Normal ITS approving the Proposed Amendments, and
 
  •  the continued listing of the Normal ITS on the New York Stock Exchange after the settlement date (which condition cannot be waived by us).
 
Our obligation to consummate the exchange of Depositary Shares for Normal ITS is not subject to any minimum tender condition. We reserve the right, subject to applicable law, to terminate or extend the Exchange Offer and the Consent Solicitation if any condition of the Exchange Offer is not satisfied or waived by the Expiration Date and otherwise to amend the terms of the Exchange Offer in any respect.


 

 
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 EX-1
 EX-4.9
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 EX-4.11.1
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 EX-8.1
 EX-10.1.1
 EX-23.1
 EX-24.1
 EX-99.1
 EX-99.2
 
This Prospectus and Consent Solicitation Statement is part of a registration statement on Form S-4 that we have filed with the SEC. You should carefully read this Prospectus and Consent Solicitation Statement, together with the registration statement, the exhibits thereto and the additional information described below under “Where You Can Find More Information,” prior to deciding whether or not to tender your Normal ITS.
 
This Prospectus and Consent Solicitation Statement incorporates by reference important business and financial information about us that is not included in or delivered with this Prospectus and Consent Solicitation Statement. This information is available without charge to you upon written or oral request. If you would like a copy of any of this information, please submit your request to U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402, Attention: Investor Relations Department ((612) 303-0799 or (866) 775-9668). In order to ensure timely delivery of such documents, you must request this information no later than five business days before the date you must make your investment decision. Accordingly, you should make any request for documents by May 28, 2010 to ensure timely delivery of documents prior to the Expiration Date.
 
We have not authorized anyone to provide any information or to make any representations other than those contained in this Prospectus and Consent Solicitation Statement. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. You should assume that the information contained or incorporated by reference in this Prospectus and Consent Solicitation Statement is accurate only as of the date hereof or as of the date of the document incorporated by reference, as applicable. We are not making an offer of these securities in any jurisdiction where such offer is not permitted.


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IMPORTANT
 
All of the Normal ITS were issued in book-entry form, and all of the Normal ITS are currently represented by one or more global certificates held for the account of The Depository Trust Company (“DTC”). You may tender your Normal ITS by transferring the Normal ITS through DTC’s Automated Tender Offer Program (“ATOP”) or following the other procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation.”
 
We are not providing for guaranteed delivery procedures and therefore you must allow sufficient time for the necessary tender procedures to be completed during normal business hours of DTC at or prior to the Expiration Date of the Exchange Offer. If you hold your Normal ITS through a broker, dealer, commercial bank, trust company or other nominee, you should consider that such entity may require you to take action with respect to the Exchange Offer a number of days before the Expiration Date in order for such entity to tender Normal ITS on your behalf at or prior to the Expiration Date. Tenders not received by D.F. King & Co., Inc., as information and exchange agent for the Exchange Offer (the “Information and Exchange Agent”), at or prior to the Expiration Date will be disregarded and of no effect.
 
Unless otherwise indicated or unless the context requires otherwise, all references to “we,” “us,” “our” or similar references mean U.S. Bancorp.
 
WHERE YOU CAN FIND MORE INFORMATION
 
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file at the SEC’s public reference room at 100 F Street, N.E., Washington, D.C. 20549. You can also request copies of the documents, upon payment of a duplicating fee, by writing the Public Reference Section of the SEC. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. These SEC filings are also available to the public from the SEC’s web site at http://www.sec.gov.
 
The SEC allows us to “incorporate by reference” the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information we incorporate by reference is considered to be part of this Prospectus and Consent Solicitation Statement. Information that we file later with the SEC will automatically update information in this Prospectus and Consent Solicitation Statement. In all cases, you should rely on the later information over different information included in this Prospectus and Consent Solicitation Statement. We incorporate by reference the documents listed below and any documents subsequently filed (but not documents that are furnished, unless expressly incorporated herein by a reference in such furnished document) with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this Prospectus and Consent Solicitation Statement and before the completion of the Exchange Offer:
 
  •  Annual Report on Form 10-K for the year ended December 31, 2009;
 
  •  Quarterly Report on Form 10-Q for the quarter ended March 31, 2010; and
 
  •  Current Reports on Form 8-K filed on January 20, 2010 (two reports), February 4, 2010, February 18, 2010, March 10, 2010, April 20, 2010 (two reports) and April 22, 2010.
 
You may request a copy of these filings, at no cost, by writing or telephoning us at the following address:
 
U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota 55402
Attention: Investor Relations Department
(612) 303-0799 or (866) 775-9668


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FORWARD-LOOKING STATEMENTS
 
This Prospectus and Consent Solicitation Statement contains or incorporates by reference forward-looking statements about U.S. Bancorp. Statements that are not historical or current facts, including statements about beliefs and expectations, are forward-looking statements and are based on the information available to, and assumptions and estimates made by, management as of the date made. These forward-looking statements cover, among other things, anticipated future revenue and expenses and the future plans and prospects of U.S. Bancorp. Forward-looking statements involve inherent risks and uncertainties, and important factors could cause actual results to differ materially from those anticipated. Global and domestic economies could fail to recover from the recent economic downturn or could experience another severe contraction, which could adversely affect our revenues and the values of our assets and liabilities. Global financial markets could experience a recurrence of significant turbulence, which could reduce the availability of funding to certain financial institutions and lead to a tightening of credit, a reduction of business activity, and increased market volatility. Stress in the commercial real estate markets, as well as a delay or failure of recovery in the residential real estate markets, could cause additional credit losses and deterioration in asset values. In addition, our business and financial performance could be impacted as the financial industry restructures in the current environment, by increased regulation of financial institutions or other effects of recently enacted or future legislation, and by changes in the competitive landscape. Our results could also be adversely affected by continued deterioration in general business and economic conditions; changes in interest rates; deterioration in the credit quality of our loan portfolios or in the value of the collateral securing those loans; deterioration in the value of securities held in our investment securities portfolio; legal and regulatory developments; increased competition from both banks and non-banks; changes in customer behavior and preferences; effects of mergers and acquisitions and related integration; effects of critical accounting policies and judgments; and management’s ability to effectively manage credit risk, market risk, operational risk, legal risk, and regulatory and compliance risk.
 
For discussion of these and other risks that may cause actual results to differ from expectations, refer to our Annual Report on Form 10-K for the year ended December 31, 2009, which is incorporated herein by reference, including the sections entitled “Risk Factors” and “Corporate Risk Profile” contained in Exhibit 13, and all subsequent filings with the Securities and Exchange Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934. Forward-looking statements speak only as of the date they are made, and we undertake no obligation to update them in light of new information or future events.


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QUESTIONS AND ANSWERS ABOUT THE EXCHANGE OFFER
AND THE CONSENT SOLICITATION
 
The following are certain questions regarding the Exchange Offer and the Consent Solicitation that you may have as a holder of the Normal ITS and the answers to those questions. To fully understand the Exchange Offer and the Consent Solicitation and the considerations that may be important to your decision whether to participate, you should carefully read this Prospectus and Consent Solicitation Statement in its entirety, including the section below entitled “Risk Factors,” as well as the information incorporated by reference herein. For further information about us, see the section above entitled “Where You Can Find More Information.”
 
Who is making the Exchange Offer?
 
U.S. Bancorp, the issuer of the Preferred Stock that will underlie the Depositary Shares, is making the Exchange Offer to holders of Normal ITS issued by the Trust.
 
What is the purpose of the Exchange Offer and the Consent Solicitation?
 
We are conducting the Exchange Offer in order to improve our capital structure by replacing the Normal ITS, which are hybrid securities, with the Preferred Stock, which is a more traditional form of equity capital. In addition, by retiring the junior subordinated notes that correspond to the Normal ITS that we acquire in the Exchange Offer, we believe we will facilitate any future remarketing of the junior subordinated notes underlying the Normal ITS. We intend to further facilitate any future remarketing by adopting the Proposed Amendments in the Consent Solicitation.
 
The Normal ITS represent undivided beneficial interests in the Trust. The sole assets and only source of funds to make payments on the Normal ITS are junior subordinated notes that we issued to the Trust, which we refer to as the “Underlying Notes,” and certain stock purchase contracts, which we refer to as the “stock purchase contracts,” pursuant to which the Trust is obligated to purchase shares of Preferred Stock from us on a date, which we refer to as the “Stock Purchase Date,” that we expect to be April 15, 2011 but which could be deferred for quarterly periods until as late as April 15, 2012. In order to provide the Trust with the funds necessary to pay the purchase price of the Preferred Stock under the stock purchase contracts, the Trust is obligated to attempt to sell the Underlying Notes in a process referred to as “remarketing.”
 
Pursuant to a remarketing agreement, the Trust must first attempt to remarket the Underlying Notes approximately one month prior to the Stock Purchase Date and must continue to attempt to remarket the Underlying Notes on a quarterly basis until the earlier of a successful remarketing and March 15, 2012, subject to certain limitations, conditions and other requirements. As a result of the Exchange Offer, we expect to reduce the number of Normal ITS that are outstanding and to retire the Underlying Notes corresponding to the Normal ITS that are accepted for exchange. This will reduce the aggregate principal amount of Underlying Notes that the Trust will be required to remarket, which we believe will facilitate the remarketing. A successful remarketing would benefit us because it would result in our receiving cash payments upon the settlement of the stock purchase contracts that correspond to the Normal ITS. If an attempted remarketing fails, our receipt of any cash proceeds from the sale of the remarketed Underlying Notes would be delayed, and if all remarketing attempts fail, the Underlying Notes would be returned to us in full satisfaction of the Trust’s obligation to pay the purchase price for the Preferred Stock and we would not receive any cash proceeds from a sale of the remarketed Underlying Notes.
 
The purpose of the Consent Solicitation is to obtain Consents from the holders of Normal ITS to certain amendments, which we refer to as the “Proposed Amendments,” to the amended and restated trust agreement of the Trust, which we refer to as the “Trust Agreement,” the junior subordinated indenture governing the Underlying Notes, which we refer to as the “Indenture,” and the collateral agreement and stock purchase contract agreement relating to the Normal ITS. The proposed amendments to the Trust Agreement would allow us to retire the Normal ITS that we acquire in the Exchange Offer and would authorize the trustees of the Trust to approve the amendments and modifications to the collateral agreement and stock purchase contract agreement. The proposed amendments to the Indenture would permit additional flexibility in the


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terms, conditions and requirements applicable to the remarketing, which we believe will further facilitate a remarketing. The proposed amendments to the collateral agreement would allow the Underlying Notes corresponding to the Normal ITS acquired by us in the Exchange Offer to be released from their pledge and delivered to us for cancellation, and the proposed amendments to the stock purchase contract agreement would allow the cancellation of the stock purchase contracts corresponding to the Normal ITS acquired by us in the Exchange Offer and for the future issuance of Preferred Stock upon settlement of the Exchange Offer and the stock purchase contracts as a result of the Exchange Offer. Pursuant to the terms of the Trust Agreement and the Indenture, the Proposed Amendments require the receipt of Consents in respect of at least a majority in aggregate liquidation amount of the outstanding Normal ITS (which corresponds to at least a majority of the outstanding Normal ITS). For a more detailed description of the Consent Solicitation and the Proposed Amendments, see the sections below entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation” and “— The Proposed Amendments.”
 
What securities are subject to the Exchange Offer and the Consent Solicitation?
 
We are offering to exchange the Normal ITS in the Exchange Offer and are soliciting Consents with respect to Normal ITS in the Consent Solicitation.
 
Each Normal ITS represents a beneficial interest in $1,000 principal amount of Underlying Notes and a 1/100th interest in a stock purchase contract, under which the Trust agrees to purchase, and we agree to sell, for $100,000, a share of Preferred Stock on the Stock Purchase Date. The Trust has pledged the Underlying Notes to secure the Trust’s obligations under the stock purchase contracts.
 
We are not offering to exchange any Stripped ITS or Capital ITS (each as defined below) in the Exchange Offer and are not seeking the Consents of holders of Stripped ITS or Capital ITS in the Consent Solicitation. As of the date hereof there were no Stripped ITS or Capital ITS outstanding.
 
What are the key terms of the Exchange Offer and the Consent Solicitation?
 
In the Exchange Offer, we are offering to exchange up to 1,250,000 Depositary Shares, each representing a 1/100th ownership interest in a share of our Preferred Stock, for any and all of our 1,250,000 outstanding Normal ITS, on the terms and subject to the conditions set forth in this Prospectus and Consent Solicitation Statement and in the accompanying Letter of Transmittal and Consent. You will receive one Depositary Share for each Normal ITS that is validly tendered and accepted for exchange in the Exchange Offer.
 
In the Consent Solicitation, we are soliciting the Consents of holders of Normal ITS to the Proposed Amendments. The Consent Solicitation is being conducted upon the terms and subject to the conditions specified in this Prospectus and Consent Solicitation Statement, as more particularly described in “The Exchange Offer and the Consent Solicitation — The Consent Solicitation” and “— The Proposed Amendments.”
 
What consideration are we offering in exchange for the Normal ITS tendered in the Exchange Offer?
 
For each Normal ITS that we accept for exchange in accordance with the terms of the Exchange Offer, the tendering holder will receive one Depositary Share, representing a 1/100th ownership interest in a share of our Preferred Stock. A Depositary Share represents the same fraction of a share of Preferred Stock that the Trust would receive upon settlement of the stock purchase contract underlying each Normal ITS that you tender into the Exchange Offer. We will also pay cash in the amount of any accrued and unpaid distributions on each Normal ITS accepted in the Exchange Offer up to, but excluding, the settlement date of the Exchange Offer.
 
What are the terms of the Preferred Stock?
 
Each share of Preferred Stock will be identical in all respects to the Preferred Stock to be issued upon settlement of the stock purchase contracts forming part of the Normal ITS, except that non-cumulative dividends, if declared, will accrue on the Preferred Stock underlying the Depositary Shares at a rate of 7.189%


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per annum until the later of April 15, 2011 and the Stock Purchase Date. During that same period, holders of the Normal ITS will be entitled to receive distributions at a rate of 6.189% per annum. See “Description of Preferred Stock.”
 
In connection with the Exchange Offer, we will amend the terms of the Preferred Stock to provide that if dividends on any shares of the Preferred Stock or any other class or series of preferred stock that ranks on parity with the Preferred Stock as to payment of dividends with similar voting rights have not been declared or paid for the equivalent of six dividend payments, whether or not for consecutive dividend periods, holders of the outstanding shares of Preferred Stock, together with holders of any other series of our preferred stock ranking equal with the Preferred Stock with similar voting rights, will be entitled to vote for the election of two additional directors to our board, subject to the terms and to the limited extent described under “Description of Preferred Stock — Voting.” We will also amend the terms of the Preferred Stock to provide voting rights with respect to authorizing or increasing the authorized amount of senior stock, or to making certain changes in the terms of the Preferred Stock. These amendments are being made to facilitate the listing of the Depositary Shares on the New York Stock Exchange.
 
What consideration are we offering in exchange for the Consents delivered in the Consent Solicitation?
 
If you validly tender your Normal ITS pursuant to the Exchange Offer you will be required to, and will be deemed to have, validly delivered your Consents to the Proposed Amendments. If the Exchange Offer is consummated, you will receive one Depositary Share for each Normal ITS accepted by us for exchange, and you will not receive the Consent Fee or any other separate consideration for your Consent. If, however, proration occurs, you will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration, but you will still be deemed to have delivered a Consent to the Proposed Amendments with respect to all such Normal ITS.
 
Alternatively, you may validly deliver your Consents without tendering your related Normal ITS. If the requisite Consents are received and the Proposed Amendments become operative, we will pay each holder of Normal ITS that validly delivers and does not validly revoke Consents in respect of such Normal ITS without also tendering its Normal ITS into the Exchange Offer, the Consent Fee of $1.25 for each Normal ITS for which a Consent is properly received and not properly withdrawn at or prior to the Expiration Date. However, you will not receive the Depositary Shares to be issued in the Exchange Offer and, if the Exchange Offer is consummated, would only receive the Consent Fee. The Consent Fee is equal to 0.125% of the liquidation amount of each Normal ITS.
 
What amount of Normal ITS must Consent to the Proposed Amendments in order for the Proposed Amendments to be adopted?
 
In order to be adopted, the Proposed Amendments must be consented to by the holders of at least a majority of the outstanding aggregate liquidation amount of the Normal ITS, which corresponds to at least a majority of the Normal ITS outstanding.
 
Will we exchange all of the Normal ITS tendered?
 
We may not accept for exchange all of the Normal ITS that you tender in the Exchange Offer. It is a condition to the Exchange Offer that the Normal ITS continue to be listed on the New York Stock Exchange, and, therefore, if accepting all of the Normal ITS would cause the Normal ITS to be de-listed, we will reduce the number of Normal ITS sought and accept a pro rata amount of the Normal ITS tendered in the Exchange Offer by all holders in the aggregate to ensure that the Normal ITS continue to be listed on the New York Stock Exchange after the consummation of the Exchange Offer. Any Normal ITS tendered but not accepted because of proration will be returned to you promptly after the Expiration Date. For a more detailed description of the proration procedures and the listing condition, see the sections below entitled “The Exchange Offer and the Consent Solicitation — Proration” and “— Conditions of the Exchange Offer.”


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How will proration affect my Consents to the Proposed Amendments?
 
We intend that the Normal ITS continue to be listed on the New York Stock Exchange, and, therefore, if accepting all of the Normal ITS would cause the Normal ITS to be de-listed, we will reduce the number of Normal ITS sought and accept a pro rata amount of the Normal ITS tendered in the Exchange Offer by all holders in the aggregate to ensure that the Normal ITS continue to be listed on the New York Stock Exchange after the consummation of the Exchange Offer. The New York Stock Exchange will consider de-listing the outstanding Normal ITS if (1) the aggregate market value of the Normal ITS is less than $4 million (which would occur if greater than 99% of the outstanding Normal ITS were tendered into the Exchange Offer, based on the $1,000 liquidation amount per Normal ITS) or (2) for any other reason based on the suitability for the continued listing of the Normal ITS in light of all pertinent facts as determined by the New York Stock Exchange.
 
Proration will not revoke Consents to the Proposed Amendments. Therefore, if we do not accept all of your validly tendered Normal ITS due to proration, you will still be deemed to have delivered your Consents with respect to all of your validly tendered Normal ITS, even those that are not accepted for exchange. If proration occurs, you will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration.
 
May I tender only a portion of the Normal ITS that I hold?
 
Yes. You do not have to tender all of your Normal ITS to participate in the Exchange Offer. However, you must tender whole numbers of Normal ITS.
 
Are we making a recommendation regarding whether you should tender in the Exchange Offer?
 
None of us, the trustees of the Trust, the Dealer Managers, the Information and Exchange Agent, or any other person are making any recommendation regarding whether you should tender or refrain from tendering your Normal ITS in the Exchange Offer or deliver your Consents pursuant to the Consent Solicitation. Accordingly, you must make your own determination as to whether to tender your Normal ITS in the Exchange Offer or deliver your Consents pursuant to the Consent Solicitation and, if so, the number of Normal ITS to tender or for which to deliver a Consent. Before making your decision, we urge you to carefully read this Prospectus and Consent Solicitation Statement in its entirety, including the information set forth in the section entitled “Risk Factors,” and the other documents incorporated by reference. The value of the Depositary Shares issued in the Exchange Offer may not equal or exceed the value of the Normal ITS tendered. You must make your own independent decision regarding your participation in the Exchange Offer and the Consent Solicitation.
 
Will the Depositary Shares to be delivered in the Exchange Offer be freely tradable and listed for trading?
 
Yes, the Depositary Shares you receive upon settlement of the Exchange Offer will be freely tradable, unless you are considered an “affiliate” of ours, as that term is defined in the Securities Act of 1933, as amended. We intend to apply to list the Depositary Shares on the New York Stock Exchange, and we expect trading on the New York Stock Exchange to begin within 30 days of the initial issuance of the Depositary Shares.
 
What are the conditions to the Exchange Offer?
 
The Exchange Offer is conditioned upon:
 
  •  the SEC having declared effective the registration statement of which this Prospectus and Consent Solicitation Statement forms a part (which condition cannot be waived by us);
 
  •  the receipt of valid Consents from holders of a majority in aggregate liquidation amount of the outstanding Normal ITS approving the Proposed Amendments;


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  •  the continued listing of the Normal ITS that remain outstanding after the Exchange Offer on the New York Stock Exchange (which condition cannot be waived by us);
 
  •  the accuracy of representations and warranties, and the compliance with certain covenants, contained in the dealer manager agreement, in each case, as of the Expiration Date; and
 
  •  the satisfaction of the other conditions described below in the section entitled “The Exchange Offer and the Consent Solicitation — Conditions of the Exchange Offer.”
 
Our obligation to consummate the exchange of Depositary Shares for Normal ITS is not subject to any minimum tender condition. We may waive certain conditions of the Exchange Offer. If any of the conditions are not satisfied or waived by the Expiration Date, we will not accept any validly tendered Normal ITS for exchange. See “The Exchange Offer and Consent Solicitation — Conditions of the Exchange Offer.”
 
When does the Exchange Offer and the Consent Solicitation expire?
 
The Exchange Offer and the Consent Solicitation will expire at 11:59 p.m., New York City time, on June 7, 2010 (unless we extend it). We refer to such date and time (as it may be extended) as the “Expiration Date.”
 
How do I participate in the Exchange Offer?
 
You may tender your Normal ITS by transferring the Normal ITS through ATOP or following the other procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation.”
 
How do I participate in the Consent Solicitation?
 
You may deliver your Consent to the Proposed Amendments by validly tendering your Normal ITS into the Exchange Offer, in which case you will be deemed to have validly delivered your Consents to the Proposed Amendments by such tender. You may also deliver Consents to the Proposed Amendments without tendering your Normal ITS by following the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Providing Consent without Tendering.”
 
May I withdraw Normal ITS that I have previously tendered and Consents that I have previously delivered?
 
You may withdraw any Normal ITS that you tender at any time prior to the Expiration Date (and, if not previously accepted for exchange, after the expiration of 40 business days commencing on May 10, 2010). You may withdraw any Normal ITS in accordance with the terms of the Exchange Offer by following the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Withdrawal of Tenders.” A valid withdrawal of Normal ITS shall be deemed a revocation of any related Consent.
 
Consents delivered that are accompanied by a tender of Normal ITS may only be validly revoked by validly withdrawing the corresponding previously-tendered Normal ITS at or prior to the Expiration Date. If you have not tendered Normal ITS but have Consented to the Proposed Amendments, you may withdraw such Consent at any time at or prior to the Expiration Date by following the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Withdrawal of Consents with Respect to Normal ITS that were not Tendered.”
 
Under what circumstances can the Exchange Offer and the Consent Solicitation be extended, amended or terminated?
 
Subject to applicable law, we reserve the right to (1) extend the Exchange Offer or the Consent Solicitation, (2) waive any and all conditions to or amend the Exchange Offer or the Consent Solicitation in any respect (except the requirements that the registration statement, of which this Prospectus and Consent


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Solicitation Statement forms a part, be declared effective by the SEC, and that the remaining Normal ITS will continue to be listed on the New York Stock Exchange after the settlement date) or (3) terminate or withdraw the Exchange Offer or the Consent Solicitation if any condition to the Exchange Offer is not satisfied or waived by the Expiration Date.
 
In the event that we terminate or withdraw the Exchange Offer at or prior to the Expiration Date or the Exchange Offer is otherwise not completed, no consideration will be paid or become payable to holders who have tendered their Normal ITS pursuant to the Exchange Offer or delivered their Consents in the Consent Solicitation. In any such event, (1) Normal ITS previously tendered pursuant to the Exchange Offer will be promptly returned to the tendering holders and (2) the Proposed Amendments will not become operative. See “The Exchange Offer and the Consent Solicitation — Expiration Date; Extension; Termination; Amendment.”
 
How will I be notified if the Exchange Offer and the Consent Solicitation is extended, amended or terminated?
 
If the Exchange Offer and the Consent Solicitation are extended, we will make a public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. If we terminate or amend the Exchange Offer or the Consent Solicitation, we will issue a timely public announcement regarding the termination or amendment. Upon termination of the Exchange Offer for any reason, any Normal ITS previously tendered in the Exchange Offer will be promptly returned to the tendering holders.
 
If we make a material change in the terms of the Exchange Offer or the information concerning the Exchange Offer, or waive a material condition of the Exchange Offer, we will promptly disseminate disclosure regarding the change or waiver, and extend the Exchange Offer and the Consent Solicitation, if required by law, so that the Exchange Offer remains open a minimum of five business days from the date we disseminate that disclosure. For more information regarding notification of extensions, amendments or the termination of the Exchange Offer, see the section below entitled “The Exchange Offer and the Consent Solicitation — Expiration Date; Extension; Termination; Amendment.”
 
Without limiting the manner in which we may choose to make such announcement, we will not, unless otherwise required by applicable law, have any obligation to publish, advertise or otherwise communicate any such announcement other than by making a release to a U.S. news agency or another means of announcement that we deem appropriate.
 
What do you intend to do with the Normal ITS that are acquired in the Exchange Offer?
 
Following the completion of the Exchange Offer and the Consent Solicitation, and the effectiveness of the Proposed Amendments, (1) the Trust will retire the Normal ITS we acquire in the Exchange Offer, (2) the corresponding Underlying Notes will be transferred to us by the Trust and surrendered by us to the Indenture trustee for cancellation and (3) the corresponding stock purchase contracts will be terminated in connection with the delivery of Depositary Shares to the exchanging holders of Normal ITS in the Exchange Offer.
 
What risks should I consider in deciding whether or not to tender my Normal ITS or to Consent to the Proposed Amendments?
 
In deciding whether to participate in the Exchange Offer and the Consent Solicitation, you should carefully consider the discussion of risks and uncertainties affecting our business, the Normal ITS, the Depositary Shares and our Preferred Stock described in the section below entitled “Risk Factors,” and the documents incorporated by reference, and consult with your advisors.
 
What are the federal income tax consequences of my participating in the Exchange Offer?
 
Please see the section below entitled “Material U.S. Federal Income Tax Consequences.” The tax consequences to you of the Exchange Offer will depend on your individual circumstances. You should consult your own tax advisor for a full understanding of the tax consequences of participating in the Exchange Offer.


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What must I do to participate if my Normal ITS are held of record by a broker, dealer, commercial bank, trust company or other nominee?
 
If you wish to tender your Normal ITS or deliver separate Consents with respect thereto and they are held of record by a broker, dealer, commercial bank, trust company or other nominee, you should contact such entity promptly and instruct it to tender Normal ITS or deliver Consents on your behalf. In some cases, the nominee may request submission of such instructions on a Beneficial Owner’s Instruction Form. Please check with your nominee to determine the procedures for such form.
 
You are urged to instruct your broker, dealer, commercial bank, trust company or other nominee at least five business days prior to the Expiration Date in order to allow adequate processing time for your instruction.
 
In order to validly tender your Normal ITS in the Exchange Offer or deliver Consents in the Consent Solicitation, you or your broker, dealer, commercial bank, trust company or other nominee must follow the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation” or “The Exchange Offer and the Consent Solicitation — Procedures for Providing Consent without Tendering,” as the case may be.
 
WE ARE NOT PROVIDING FOR GUARANTEED DELIVERY PROCEDURES AND THEREFORE YOU MUST ALLOW SUFFICIENT TIME FOR THE NECESSARY TENDER PROCEDURES TO BE COMPLETED DURING NORMAL BUSINESS HOURS OF DTC ON OR PRIOR TO THE EXPIRATION DATE. IF YOU HOLD YOUR NORMAL ITS THROUGH A BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE, YOU SHOULD CONSIDER THAT SUCH ENTITY MAY REQUIRE YOU TO TAKE ACTION WITH RESPECT TO THE EXCHANGE OFFER OR THE CONSENT SOLICITATION A NUMBER OF DAYS BEFORE THE EXPIRATION DATE IN ORDER FOR SUCH ENTITY TO TENDER NORMAL ITS OR DELIVER CONSENTS ON YOUR BEHALF AT OR PRIOR TO THE EXPIRATION DATE. TENDERS AND CONSENTS NOT RECEIVED BY THE INFORMATION AND EXCHANGE AGENT AT OR PRIOR TO THE EXPIRATION DATE WILL BE DISREGARDED AND OF NO EFFECT.
 
Will I have to pay any fees or commissions if I tender my Normal ITS?
 
If your Normal ITS are held through a broker or other nominee who tenders the Normal ITS on your behalf (other than those tendered through one of the Dealer Managers), your broker may charge you a commission for doing so. You should consult with your broker or nominee to determine whether any charges will apply.
 
What are Stripped ITS and Capital ITS? Are they also subject to the Exchange Offer and the Consent Solicitation?
 
A holder of Normal ITS is permitted to submit Normal ITS and certain qualifying U.S. treasury securities for Stripped ITS and Capital ITS, in which case the Trust will pledge qualifying U.S. treasury securities to secure its obligations under the stock purchase contracts corresponding to the Stripped ITS and pledged Underlying Notes will be released from the pledge securing the Trust’s obligations under the stock purchase contracts. Each Stripped ITS represents a beneficial interest in 1/100th interest in a stock purchase contract and qualifying U.S. treasury securities. Each Capital ITS represents a beneficial interest in the Underlying Notes with a principal amount of $1,000, which are not pledged to secure the Trust’s obligations under the stock purchase contracts.
 
We are not offering to exchange any Stripped ITS or Capital ITS in the Exchange Offer and are not seeking the Consents of holders of Stripped ITS or Capital ITS in the Consent Solicitation. As of the date hereof there were no Stripped ITS or Capital ITS outstanding. If you hold Stripped ITS or Capital ITS and desire to participate in the Exchange Offer or the Consent Solicitation, you must recreate Normal ITS from your Stripped ITS and Capital ITS, in accordance with the terms of the Trust Agreement, and then tender the recreated Normal ITS in the Exchange Offer or deliver your Consent with respect to such Normal ITS.


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With whom may I talk if I have questions about the Exchange Offer and the Consent Solicitation?
 
If you have questions about the terms of the Exchange Offer and the Consent Solicitation, please contact the lead Dealer Manager, Deutsche Bank Securities Inc., or the co-Dealer Manager, U.S. Bancorp Investments, Inc. You may call Deutsche Bank Securities Inc. or U.S. Bancorp Investments, Inc. at their respective telephone numbers set forth on the back cover of this Prospectus and Consent Solicitation Statement. If you have questions regarding the procedures for tendering your Normal ITS, please contact your broker, dealer, commercial bank, trust company or other nominee, or D.F. King & Co., Inc., the Information and Exchange Agent. You can contact the Information and Exchange Agent at the address and telephone numbers set forth on the back cover of this Prospectus and Consent Solicitation Statement.


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SUMMARY
 
The following summary highlights selected information contained in this Prospectus and Consent Solicitation Statement. It may not contain all of the information that is important to you and is qualified in its entirety by the more detailed information included or incorporated by reference in this Prospectus and Consent Solicitation Statement. You should carefully consider the information contained in and incorporated by reference, including the information set forth below under the section entitled “Risk Factors” and the information set forth under “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2009.
 
U.S. Bancorp and USB Capital IX
 
We are a multi-state financial holding company headquartered in Minneapolis, Minnesota. We were incorporated in Delaware in 1929 and operate as a financial holding company and a bank holding company under the Bank Holding Company Act of 1956. We provide a full range of financial services through our subsidiaries, including lending and depository services, cash management, foreign exchange and trust and investment management services. Our subsidiaries also engage in credit card services, merchant and automated teller machine processing, mortgage banking, insurance, brokerage and leasing services. We are the parent company of U.S. Bank National Association and U.S. Bank National Association ND.
 
USB Capital IX, which we refer to as the Trust, is a Delaware statutory trust. We are the sole holder of all the common securities of the Trust. The sole assets and only source of funds to make payments on the Normal ITS are the Underlying Notes and the stock purchase contracts pursuant to which the Trust is obligated to purchase shares of Preferred Stock from us on the Stock Purchase Date. We expect the Stock Purchase Date to be April 15, 2011, but it could be deferred for quarterly periods until as late as April 15, 2012. To the extent that the Trust receives interest payments on the relevant Underlying Notes and contract payments pursuant to the stock purchase contracts, it is obligated to distribute those amounts to the holders of Normal ITS in the form of distributions. We have provided holders of Normal ITS a guarantee in support of the Trust’s obligation to make distributions on the Normal ITS, but only to the extent the Trust otherwise has funds available for such distributions.
 
Following the completion of the Exchange Offer and the Consent Solicitation, and the effectiveness of the Proposed Amendments, (1) the Trust will retire the Normal ITS we acquire in the Exchange Offer, (2) the corresponding Underlying Notes will be transferred to us by the Trust and surrendered by us to the Indenture trustee for cancellation and (3) the corresponding stock purchase contracts will be terminated in connection with the delivery of Depositary Shares to the exchanging holders of Normal ITS in the Exchange Offer. We currently expect to continue making distributions on the Normal ITS that are not acquired by us in the Exchange Offer in accordance with their terms.
 
Our principal executive offices and the principal executive offices of the Trust are located at 800 Nicollet Mall, Minneapolis, Minnesota 55402. Our telephone number and the Trust’s telephone number is (612) 303-0799.
 
Purpose of the Exchange Offer and the Consent Solicitation
 
We are conducting the Exchange Offer in order to improve our capital structure by replacing the Normal ITS, which are hybrid securities, with the Preferred Stock, which is a more traditional form of equity capital. In addition, by retiring the Underlying Notes that correspond to the Normal ITS that we acquire in the Exchange Offer, we believe we will facilitate any future remarketing of the Underlying Notes. We aim to further facilitate any future remarketing by adopting the Proposed Amendments in the Consent Solicitation.
 
Pursuant to a remarketing agreement, the Trust must first attempt to remarket the Underlying Notes approximately one month prior to the Stock Purchase Date and must continue to attempt to remarket the Underlying Notes on a quarterly basis until the earlier of a successful remarketing and March 15, 2012, subject to certain limitations, conditions and other requirements. As a result of the Exchange Offer, we expect to reduce the number of Normal ITS that are outstanding and to retire the Underlying Notes corresponding to


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the Normal ITS that are accepted for exchange. This will reduce the aggregate principal amount of Underlying Notes that the Trust will be required to remarket, which we believe will facilitate a remarketing. A successful remarketing would benefit us because it would result in our receiving cash payments upon the settlement of the stock purchase contracts that correspond to the Normal ITS. If an attempted remarketing fails, our receipt of any cash proceeds from the sale of the remarketed Underlying Notes would be delayed, and if all remarketing attempts fail, the Underlying Notes would be returned to us in full in satisfaction of the Trust’s obligation to pay the purchase price for the Preferred Stock and we would not receive any cash proceeds from a sale of the remarketed Underlying Notes.
 
The purpose of the Consent Solicitation is to obtain Consents from the holders of Normal ITS to certain amendments, which we refer to as the “Proposed Amendments,” to the amended and restated trust agreement of the Trust, which we refer to as the “Trust Agreement,” the junior subordinated indenture governing the Underlying Notes, which we refer to as the “Indenture,” and the collateral agreement and stock purchase contract agreement relating to the Normal ITS. The proposed amendments to the Trust Agreement would allow us to retire the Normal ITS that we acquire in the Exchange Offer and would authorize the Trust to approve the amendments and modifications to the collateral agreement and stock purchase contract agreement. The proposed amendments to the Indenture would permit additional flexibility in the terms, conditions and requirements applicable to the remarketing, which we believe will further facilitate a remarketing. The proposed amendments to the collateral agreement would allow for the Underlying Notes corresponding to the Normal ITS acquired by us in the Exchange Offer to be released from their pledge and delivered to us for cancellation, and the proposed amendments to the stock purchase contract agreement would allow for the cancellation of the stock purchase contracts corresponding to the Normal ITS acquired by us in the Exchange Offer and for the future issuance of Preferred Stock upon settlement of the Exchange Offer and the stock purchase contracts as a result of the Exchange Offer. Pursuant to the terms of the Trust Agreement and the Indenture, the Proposed Amendments require the receipt of Consents in respect of a majority in aggregate liquidation amount of the outstanding Normal ITS (which corresponds to a majority of the outstanding Normal ITS). For a more detailed description of the Consent Solicitation and the Proposed Amendments, see below under the sections entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation” and “— The Proposed Amendments.”


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Summary Terms of the Exchange Offer and the Consent Solicitation
 
Exchange Offer
We are offering to exchange up to 1,250,000 Depositary Shares, each representing a 1/100th ownership interest in a share of our Preferred Stock, for any and all of the 1,250,000 outstanding Normal ITS, on the terms and subject to the conditions set forth in this Prospectus and Consent Solicitation Statement and in the accompanying Letter of Transmittal and Consent.
 
We will accept validly tendered Normal ITS for exchange on the terms and conditions of the Exchange Offer. We will promptly return any Normal ITS that are not accepted for exchange following the Expiration Date.
 
Exchange Offer Consideration
For each Normal ITS that we accept for exchange in accordance with the terms of the Exchange Offer, we will deliver one Depositary Share. We will also pay cash in an amount equal to any accrued and unpaid distributions on each Normal ITS accepted in the Exchange Offer up to, but excluding, the settlement date of the Exchange Offer.
 
Non-cumulative dividends, if declared, will accrue on the Preferred Stock underlying the Depositary Shares at a rate of 7.189% per annum until the later of April 15, 2011 and the Stock Purchase Date. During that same period, holders of the Normal ITS will be entitled to receive distributions at a rate of 6.189% per annum. Otherwise, each share of Preferred Stock underlying the Depositary Shares will be identical in all respects to the Preferred Stock to be issued upon settlement of the stock purchase contracts forming part of the Normal ITS, including with respect to dividend payments following the later of April 15, 2011 and the Stock Purchase Date. See “Description of Preferred Stock.”
 
Consent Solicitation
In connection with the Exchange Offer, we are conducting the Consent Solicitation to obtain Consents to the Proposed Amendments from holders of Normal ITS, as more particularly described below under the section entitled “The Exchange Offer and the Consent Solicitation — The Proposed Amendments.” Holders who have validly tendered their Normal ITS will be deemed to have validly delivered their Consents to the Proposed Amendments by such tender. Holders of Normal ITS may also deliver Consents to the Proposed Amendments without tendering their Normal ITS.
 
Consent Fee
Holders who validly tender their Normal ITS pursuant to the Exchange Offer will be required to, and will be deemed to have, validly delivered their Consents to the Proposed Amendments. If the Exchange Offer is consummated, each such holder will receive one Depositary Share for each Normal ITS accepted by us for exchange, and will not receive the Consent Fee or any other separate consideration for their Consent. If, however, proration (as described under ‘‘— Proration of Tendered Normal ITS”) occurs, such holders will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration, but they will still be


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deemed to have delivered a Consent to the Proposed Amendments with respect to such Normal ITS.
 
Alternatively, a holder may validly deliver its Consents without tendering their related Normal ITS. If the requisite Consents are received and the Proposed Amendments become operative, we will pay each holder of Normal ITS that validly delivers and does not validly revoke Consents in respect of such Normal ITS without also tendering its Normal ITS into the Exchange Offer the Consent Fee of $1.25 for each Normal ITS for which a Consent is properly received and not properly withdrawn at or prior to the Expiration Date. However, any such holder will not receive the Depositary Shares to be issued in the Exchange Offer and may only receive the Consent Fee. The Consent Fee is equal to 0.125% of the liquidation amount of each Normal ITS.
 
Proration of Tendered Normal ITS
It is a condition to the Exchange Offer, which we cannot waive, that the Normal ITS continue to be listed on the New York Stock Exchange following the settlement date, and, therefore, if accepting all of the tendered Normal ITS would cause the Normal ITS to be de-listed, we will reduce the number of Normal ITS sought and accept a pro rata amount of the Normal ITS tendered in the Exchange Offer by all holders in the aggregate to ensure that the Normal ITS continue to be listed on the New York Stock Exchange after the consummation of the Exchange Offer. The New York Stock Exchange will consider de-listing the outstanding Normal ITS if (1) the aggregate market value of the Normal ITS is less than $4 million (which would occur if greater than 99% of the outstanding Normal ITS were tendered into the Exchange Offer, based on the $1,000 liquidation amount per Normal ITS) or (2) for any other reason based on the suitability for the continued listing of the Normal ITS in light of all pertinent facts as determined by the New York Stock Exchange.
 
Any Normal ITS tendered but not accepted because of proration will be returned to you promptly after the Expiration Date.
 
Proration will not revoke Consents to the Proposed Amendments. Therefore, if we do not accept all of your validly tendered Normal ITS due to proration, you will still be deemed to have delivered your Consents with respect to all of your validly tendered Normal ITS, even those that are not accepted for exchange. If proration occurs, you will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration.
 
For a more detailed description of the proration procedures and the listing condition, see the sections below entitled “The Exchange Offer and the Consent Solicitation — Proration” and “— Conditions of the Exchange Offer.”
 
Certain Consequences to Non-Tendering Holders
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outstanding Normal ITS may be less liquid and more sporadic than it has been in the past, and market prices may fluctuate significantly depending on the volume of trading in Normal ITS. See “Risk Factors.”
 
Following the completion of the Exchange Offer and the Consent Solicitation, and the effectiveness of the Proposed Amendments, (1) the Trust will retire the Normal ITS we acquire in the Exchange Offer, (2) the corresponding Underlying Notes will be transferred to us by the Trust and surrendered by us to the Indenture trustee for cancellation and (3) the corresponding stock purchase contracts will be terminated in connection with the delivery of Depositary Shares to the exchanging holders of Normal ITS in the Exchange Offer. We currently expect to continue making distributions on the Normal ITS that are not acquired by us in the Exchange Offer in accordance with their terms.
 
Treatment of Stripped ITS and Capital ITS
No Stripped ITS or Capital ITS are outstanding as of the date hereof, and we are not offering to exchange any Stripped ITS or Capital ITS in the Exchange Offer and are not seeking the Consents of holders of Stripped ITS or Capital ITS in the Consent Solicitation. However, if you hold Stripped ITS or Capital ITS and desire to participate in the Exchange Offer or the Consent Solicitation, you must recreate Normal ITS from your Stripped ITS and Capital ITS, in accordance with the terms of the Trust Agreement, and tender those recreated Normal ITS in the Exchange Offer or deliver your Consent with respect to such Normal ITS.
 
Expiration Date and Withdrawal Rights; Revocation of Consents
The Exchange Offer will expire at 11:59 p.m., New York City time, on June 7, 2010 (unless we extend it). The term “Expiration Date” means such date and time or, if the Exchange Offer is extended, the latest date and time to which the Exchange Offer is so extended.
 
You may withdraw any Normal ITS that you tender or revoke any Consent at any time at or prior to the Expiration Date (and, if not previously accepted for exchange, after the expiration of 40 business days commencing on May 10, 2010). You may withdraw any Normal ITS in accordance with the terms of the Exchange Offer by following the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Withdrawal of Tenders.”
 
Consents delivered that are accompanied by a tender of Normal ITS may only be validly revoked by validly withdrawing the corresponding previously-tendered Normal ITS at or prior to the Expiration Date. If you have not tendered Normal ITS but have Consented to the Proposed Amendments, you may withdraw such Consent at any time at or prior to the Expiration Date by following the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Withdrawal of Consents with Respect to Normal ITS that were not Tendered.”


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Extensions; Waivers and Amendments; Termination
Subject to applicable law, we reserve the right to (1) extend the Exchange Offer or the Consent Solicitation, (2) waive any and all conditions to or amend the Exchange Offer or the Consent Solicitation in any respect (except the requirements that the registration statement, of which this Prospectus and Consent Solicitation Statement forms a part, be declared effective by the SEC, and that the remaining Normal ITS will continue to be listed on the New York Stock Exchange after the settlement date) or (3) terminate or withdraw the Exchange Offer or the Consent Solicitation if any condition to the Exchange Offer is not satisfied or waived by the Expiration Date.
 
In the event that we terminate or withdraw the Exchange Offer at or prior to the Expiration Date or the Exchange Offer is otherwise not completed, no consideration will be paid or become payable to holders who have tendered their Normal ITS pursuant to the Exchange Offer or delivered their Consents in the Consent Solicitation. In any such event, (1) Normal ITS previously tendered pursuant to the Exchange Offer will be promptly returned to the tendering holders and (2) the Proposed Amendments will not become operative.
 
Any extension, waiver, amendment or termination will be followed as promptly as practicable by a public announcement thereof, such announcement in the case of an extension to be issued no later than 9:00 a.m., New York City time, on the next business day after the last previously scheduled Expiration Date. For more information regarding notification of extensions, waivers, amendments or the termination of the Exchange Offer and the Consent Solicitation, see the section below entitled “The Exchange Offer and the Consent Solicitation — Expiration Date; Extension; Termination; Amendment.”
 
Conditions to the Exchange Offer
Our obligation to exchange Depositary Shares for Normal ITS in the Exchange Offer is subject to a number of conditions that must be satisfied or waived by us, including, among other things:
 
• the SEC having declared effective the registration statement of which this Prospectus and Consent Solicitation Statement forms a part (which condition cannot be waived by us);
 
• the continued listing of the Normal ITS that remain outstanding after the Exchange Offer on the New York Stock Exchange (which condition cannot be waived by us);
 
• the receipt of valid Consents from holders of at least a majority in aggregate liquidation amount of the outstanding Normal ITS approving the Proposed Amendments;
 
• the accuracy of representations and warranties, and the compliance with certain covenants, contained in the dealer manager agreement, in each case, as of the Expiration Date; and
 
• the other conditions described below in the section entitled “The Exchange Offer and the Consent Solicitation Statement — Conditions of the Exchange Offer.”


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Our obligation to consummate the exchange of Depositary Shares for Normal ITS is not subject to any minimum tender condition. We may waive certain conditions of the Exchange Offer. If any of the conditions are not satisfied or waived by the Expiration Date, we will not accept any validly tendered Normal ITS for exchange. See “The Exchange Offer and the Consent Solicitation — Conditions of the Exchange Offer.”
 
Settlement Date
The Depositary Shares will be issued, and Consent Fees will be paid, on the “settlement date” for the Exchange Offer, assuming that the conditions to such payments are satisfied. Subject to the terms and conditions of the Exchange Offer, the settlement date for the Exchange Offer will occur promptly following the Expiration Date. Assuming that the Exchange Offer and Consent Solicitation are not extended, we expect that the settlement date will be on or about the third business day following the Expiration Date.
 
Procedures for Tendering Normal ITS or Delivering Consents
You may tender your Normal ITS and deliver a Consent with respect thereto by transferring the Normal ITS through ATOP, following the procedures set forth below and described in more detail under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation.” Alternatively, you may complete and sign the accompanying Letter of Transmittal and Consent in accordance with the instructions set forth therein, have the signature thereon guaranteed, if required, and send or deliver the manually signed Letter of Transmittal and Consent, together with any required documents, to the Information and Exchange Agent at its address set forth in the Letter of Transmittal and Consent.
 
You may also deliver Consents to the Proposed Amendments without tendering your Normal ITS by following the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Providing Consent without Tendering.”
 
Any beneficial owner whose Normal ITS are held of record by a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender Normal ITS or deliver Consents should contact such nominee promptly and instruct such nominee to tender Normal ITS or deliver Consents on such owner’s behalf. In some cases, the nominee may request submission of such instructions on a Beneficial Owner’s Instruction Form. Please check with your nominee to determine the procedures for such form.
 
You are urged to instruct your broker, dealer, commercial bank, trust company or other nominee at least five business days prior to the Expiration Date in order to allow adequate processing time for your instruction.
 
Should you have any questions as to the procedures for tendering your Normal ITS or delivering your Consents, please call your broker, dealer, commercial bank, trust company or other nominee,


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or call our Information and Exchange Agent at its telephone number set forth on the back cover page of this Prospectus and Consent Solicitation Statement.
 
In order to validly tender your Normal ITS in the Exchange Offer or deliver Consents in the Consent Solicitation, you or your broker, dealer, commercial bank, trust company or other nominee must follow the procedures described below under the section entitled “The Exchange Offer and the Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation” or “The Exchange Offer and the Consent Solicitation — Procedures for Providing Consent without Tendering,” as the case may be.
 
WE ARE NOT PROVIDING FOR GUARANTEED DELIVERY PROCEDURES AND THEREFORE YOU MUST ALLOW SUFFICIENT TIME FOR THE NECESSARY TENDER PROCEDURES TO BE COMPLETED DURING NORMAL BUSINESS HOURS OF DTC AT OR PRIOR TO THE EXPIRATION DATE. TENDERS AND CONSENTS NOT RECEIVED BY THE INFORMATION AND EXCHANGE AGENT ON OR PRIOR TO THE EXPIRATION DATE WILL BE DISREGARDED AND OF NO EFFECT.
 
In accordance with the terms of the amended and restated trust agreement, only holders of Normal ITS who are United States persons may deliver a Consent to the Proposed Amendments. Therefore, a holder of Normal ITS who is not a United States person must irrevocably appoint a United States person with discretionary powers to act as their agent in order to participate in the Exchange Offer and Consent Solicitation. By participating in the Exchange Offer and the Consent Solicitation, a holder of Normal ITS will be deemed to have represented that it is a United States person or, if it is not a United States person, that it has appointed a United States person to act as such holder’s agent as set forth above. See “The Exchange Offer and the Consent Solictation — Procedures for Participating in the Exchange Offer and the Consent Solicitation.”
 
U.S. Federal Income Tax Consequences
The treatment of the Exchange Offer for U.S. federal income tax purposes is not entirely clear. We intend to treat the exchange of Normal ITS for Depositary Shares pursuant to the Exchange Offer as (i) an exchange of Depositary Shares for a portion of the Underlying Notes and (ii) the surrender of the remaining Underlying Notes to us in termination of the stock purchase contract. Under this characterization, we believe the exchange of Depositary Shares for Underlying Notes should be treated as a recapitalization pursuant to which you would not recognize any gain or loss. We believe that you should not recognize any gain (but may recognize a capital loss) on the termination of the stock purchase contract if you previously allocated all of your purchase price to the Underlying Notes upon your purchase of Normal ITS (for example, an initial purchaser of Normal ITS), other than


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potential recognition of income in connection with market discount on a portion of the Underlying Notes.
 
There exist alternative characterizations of the Exchange Offer, however, under which you would not recognize any gain or loss by reason of exchanging your Normal ITS for Depositary Shares. Because the treatment of the Exchange Offer is unclear, we urge you to consult your tax advisor about the U.S. federal income tax consequences of an exchange of Depositary Shares for Normal ITS pursuant to the Exchange Offer.
 
For more information, see the section below entitled Material U.S. Federal Income Tax Consequences.”
 
Comparison of the Rights of Depositary Shares and Normal ITS
Although each share of Preferred Stock underlying the Depositary Shares will generally be identical in all respects to the Preferred Stock to be issued upon settlement of the stock purchase contracts forming part of the Normal ITS, there are some differences between the rights of a holder of the Depositary Shares and a holder of the Normal ITS. For example, non-cumulative dividends, if declared, will accrue on the Preferred Stock underlying the Depositary Shares at a rate of 7.189% per annum until the later of April 15, 2011 and the Stock Purchase Date whereas during that same period, holders of the Normal ITS will be entitled to receive distributions at a rate of 6.189% per annum.
 
See the section below entitled “Comparison of Rights Between the Normal ITS and the Depositary Shares.”
 
Brokerage Commissions
You will not be required to pay brokerage commissions to the Dealer Managers, the Exchange Agent, the Information Agent or us in connection with the Exchange Offer.
 
No Appraisal Rights
You will have no appraisal rights in connection with the Exchange Offer.
 
Regulatory Approvals
We have obtained the required approval of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”) required for the repurchase of the Normal ITS. We are not required to obtain any other regulatory approvals.
 
Lead Dealer Manager
Deutsche Bank Securities Inc.
 
Co-Dealer Manager
U.S. Bancorp Investments, Inc.
 
Conflicts of Interest
Because U.S. Bancorp Investments, Inc. is our affiliate, the Exchange Offer is being conducted in compliance with the NASD Rule 2720, as administered by the Financial Industry Regulatory Authority (“FINRA”). Pursuant to that rule, the appointment of a qualified independent underwriter is not necessary in connection with this offering, as the offering is of a class of securities rated Baa3 or better by Moody’s rating service or BBB- or better by Standard & Poor’s rating service or rated in a comparable category by another rating service acceptable to FINRA.
 
Information and Exchange Agent
D.F. King & Co., Inc.


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Further Information
If you have questions about the terms of the Exchange Offer and the Consent Solicitation, please contact Deutsche Bank Securities Inc., the lead Dealer Manager or U.S. Bancorp Investments, Inc., the co-Dealer Manager. If you have questions regarding the procedures for tendering your Normal ITS, please contact the Information and Exchange Agent. The contact information for Deutsche Bank Securities Inc., U.S. Bancorp Investments, Inc. and the Information and Exchange Agent are set forth on the back cover page of this Prospectus and Consent Solicitation Statement.
 
As required by the Securities Act, we filed a registration statement relating to the Exchange Offer and the Consent Solicitation with the SEC. This Prospectus and Consent Solicitation Statement is a part of that registration statement. See also the section above entitled “Where You Can Find More Information.”


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Summary Terms of the Preferred Stock and Depositary Shares
 
Issuer
U.S. Bancorp
 
Securities Offered
Up to 1,250,000 Depositary Shares, each representing a 1/100th ownership interest in a share of our Preferred Stock. Each holder of a Depositary Share will be entitled, through the depositary, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption and liquidation rights).
 
We may from time to time elect to issue additional Depositary Shares representing shares of Preferred Stock, and all the additional Depositary Shares would be deemed to form a single series with the Depositary Shares issued upon settlement of the Exchange Offer.
 
Dividends
Dividends on the Preferred Stock, when, as and if declared by our board of directors or a duly authorized committee of the board, will accrue and be payable on the liquidation preference of $100,000 per share (1) from the settlement date of the Exchange Offer to but not including the later of April 15, 2011 and the Stock Purchase Date, semi-annually at a rate per annum equal to 7.189%, and (2) thereafter for each related quarterly dividend period at a rate per annum equal to the greater of (1) Three-Month LIBOR plus 1.02% or (2) 3.50%.
 
“Three-Month LIBOR” will be the offered rate per annum for three-month deposits in U.S. dollars as that rate appears on Reuters’ LIBOR01 page as of 11:00 a.m., London time, on the second London business day immediately preceding the first day of the Dividend Period, except as otherwise determined in the manner described below in the section entitled “Description of Preferred Stock — Dividends.” Any such dividends will be distributed to holders of Depositary Shares in the manner described below in the section entitled “Description of Depositary Shares — Dividends and Other Distributions.”
 
When dividends are not paid in full upon the shares of Preferred Stock and any parity stock, all dividends declared upon shares of Preferred Stock and any parity stock will be declared on a proportional basis so that the amount of dividends declared per share will bear to each other the same ratio that accrued dividends for the then-current dividend period per share on Preferred Stock, and accrued dividends, including any accumulations, on any parity stock, bear to each other.
 
Subject to the foregoing, and not otherwise, dividends (payable in cash, stock or otherwise), as may be determined by the board of directors or a duly authorized committee of the board, may be declared and paid on our common stock and any other securities ranking equally with or junior to the Preferred Stock from time to time out of any assets legally available for such payment, and the holders of the Preferred Stock shall not be entitled to participate in any such dividends.


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Dividend Payment Dates
Prior to the later of April 15, 2011 and the Stock Purchase Date, dividends on the Preferred Stock will be paid semi-annually in arrears on each April 15 and October 15 through the later of April 15, 2011 and (i) the Stock Purchase Date (if the Stock Purchase Date is also a Dividend Payment Date) or (ii) the Dividend Payment Date immediately preceding the Stock Purchase Date (if the Stock Purchase Date is not a Dividend Payment Date), and from and including the later of April 15, 2011 and the Stock Purchase Date, dividends on the Preferred Stock will be paid quarterly in arrears on each January 15, April 15, July 15 and October 15. If any portion of a declared semi-annual dividend payment has accrued but has not been paid as of the Stock Purchase Date, such accrued amount shall be paid on the Stock Purchase Date. If any date on which dividends would otherwise be payable is not a business day, then the dividend payment date will be the next succeeding business day.
 
Redemption
We may not redeem the Preferred Stock prior to the later of April 15, 2011 and the Stock Purchase Date. Thereafter, the Preferred Stock will be redeemable at our option, in whole at any time or in part from time to time, at a redemption price equal to $100,000 per share (equivalent to $1,000 per Depositary Share), plus any declared and unpaid dividends, without accumulation of any undeclared dividends. Neither the holders of Preferred Stock nor holders of Depositary Shares will have the right to require the redemption or repurchase of the Preferred Stock.
 
Under the Federal Reserve’s risk-based capital guidelines applicable to bank holding companies, any redemption of the Preferred Stock is subject to prior approval of the Federal Reserve. Moreover, we have agreed with the Federal Reserve that, unless it authorizes us to do otherwise in writing, we will redeem the Preferred Stock only if it is replaced with other tier 1 capital that is not a restricted core capital element — for example, common stock or another series of non-cumulative perpetual preferred stock.
 
Limitation on Payments on Junior Stock
So long as any share of Preferred Stock remains outstanding, (1) no dividend shall be declared or paid or set aside for payment and no distribution shall be declared or made or set aside for payment on any junior stock, as defined in our certificate of incorporation (other than a dividend payable solely in junior stock), (2) no shares of junior stock shall be repurchased, redeemed or otherwise acquired for consideration by us, directly or indirectly (other than as a result of a reclassification of junior stock for or into other junior stock, or the exchange or conversion of one share of junior stock for or into another share of junior stock, and other than through the use of the proceeds of a substantially contemporaneous sale of other shares of junior stock), nor shall any monies be paid to or made available for a sinking fund for the redemption of any such securities by us and (3) no shares of parity stock, as defined in our certificate of incorporation, shall be repurchased, redeemed or otherwise acquired for consideration by us otherwise than pursuant to pro rata offers to purchase all, or a


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pro rata portion, of the Preferred Stock and such parity stock except by conversion into or exchange for junior stock, during a dividend period, unless, in each case, the full dividends for the then-current dividend period on all outstanding shares of Preferred Stock have been declared and paid or declared and a sum sufficient for the payment thereof has been set aside.
 
Replacement Capital Covenant
On or about the time of the initial issuance of the Preferred Stock, we will enter into a Replacement Capital Covenant (as defined below in the section entitled “Certain Terms of the Replacement Capital Covenant”) relating to the Preferred Stock. The Replacement Capital Covenant only benefits holders of “Covered Debt,” as defined below in the section entitled “Certain Terms of the Replacement Capital Covenant,” and is not enforceable by holders of the Preferred Stock or of the Depositary Shares. However, the Replacement Capital Covenant could preclude us from redeeming or repurchasing shares of Preferred Stock at a time we might otherwise wish to redeem or repurchase shares of Preferred Stock.
 
In the Replacement Capital Covenant, we will covenant to redeem or repurchase shares of Preferred Stock prior to the termination date of the Replacement Capital Covenant only if and to the extent that (1) we have obtained the prior approval of the Federal Reserve, if such approval is then required by the Federal Reserve, and (2) the total redemption or repurchase price is equal to or less than the sum, as of the date of redemption or repurchase, of
 
• 133.33% of the aggregate net cash proceeds we or our subsidiaries have received during the 180 days prior to the date of such repurchase or the date we give notice of such redemption from the issuance and sale of common stock and rights to acquire common stock of U.S. Bancorp; plus
 
• 100% of the aggregate net cash proceeds we or our subsidiaries have received during the 180 days prior to the date of such repurchase or the date we give notice of such redemption from the issuance and sale of certain other specified securities that have equity-like characteristics that satisfy the requirements of the Replacement Capital Covenant, which means generally that such other securities have characteristics that are the same as, or more equity-like than, the applicable characteristics of the Preferred Stock at that time.
 
Liquidation Rights
Upon our voluntary or involuntary liquidation, dissolution or winding up, holders of shares of Preferred Stock are entitled to receive out of our assets available for distribution to stockholders, before any distribution of assets is made to holders of our common stock or of any other shares of our stock ranking junior as to such a distribution to the Preferred Stock, a liquidating distribution in the amount of the liquidation preference of $100,000 per share (equivalent to $1,000 per Depositary Share) plus any declared and unpaid dividends, without accumulation of any undeclared dividends. Distributions will be made only to the extent of our assets that are available after satisfaction of all liabilities to


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creditors and subject to the rights of holders of any securities ranking senior to the Preferred Stock (pro rata as to the Preferred Stock and any other shares of our stock ranking equally as to such distribution).
 
Voting Rights
None, except with respect to:
 
• authorizing or increasing the authorized amount of senior stock,
 
• authorizing certain changes in the terms of the Preferred Stock, and
 
• if dividends on any shares of the Preferred Stock or any other class or series of preferred stock that ranks on parity with the Preferred Stock as to payment of dividends with similar voting rights have not been declared or paid for the equivalent of six dividend payments, whether or not for consecutive dividend periods, the right to elect, together with holders of any other series of our preferred stock ranking equal with the Preferred Stock with similar voting rights, two additional directors to our board.
 
See below under the section entitled “Description of Preferred Stock — Voting.” Holders of Depositary Shares must act through the depositary to exercise any voting rights, as described below under the section entitled “Description of Depositary Shares — Voting the Preferred Stock.”
 
Ranking
Shares of the Preferred Stock will rank senior to our common stock, equally with our Series B Non-Cumulative Perpetual Preferred Stock (“Series B Preferred Stock”) and Series D Non-Cumulative Perpetual Preferred Stock (“Series D Preferred Stock”) and at least equally with each other series of our preferred stock we may issue (except for any senior series that may be issued with the requisite consent of the holders of the Preferred Stock and all other parity stock), with respect to the payment of dividends and distributions upon liquidation, dissolution or winding up. See below under the section entitled “Description of Preferred Stock — Authorized Preferred Stock” for a discussion of the Series B Preferred Stock and the Series D Preferred Stock. We will generally be able to pay dividends and distributions upon liquidation, dissolution or winding up only out of lawfully available assets for such payment (i.e., after taking account of all indebtedness and other non-equity claims).
 
Maturity
The Preferred Stock does not have a maturity date, and we are not required to redeem the Preferred Stock. Accordingly, the Preferred Stock will remain outstanding indefinitely, unless and until we decide to redeem it.
 
Preemptive and Conversion Rights
None.
 
Listing
We intend to apply for listing of the Depositary Shares on the New York Stock Exchange. If approved for listing, we expect trading of the Depositary Shares on the New York Stock Exchange to commence within a 30-day period after the initial delivery of the Depositary Shares.


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Tax Consequences
Distributions constituting dividend income received by an individual U.S. holder in respect of the Depositary Shares before January 1, 2011 will generally represent “qualified dividend income,” which will be subject to taxation at a maximum rate of 15% (or a lower rate for individuals in certain tax brackets), subject to certain exceptions for short-term and hedged positions. In addition, subject to similar exceptions for short-term and hedged positions, distributions on the Depositary Shares constituting dividend income paid to holders that are U.S. corporations will generally qualify for the 70% dividends-received deduction. For further discussion of the tax consequences relating to the Preferred Stock, see below under the section entitled “Material U.S. Federal Income Tax Consequences.”
 
Expected Ratings
We expect that the Depositary Shares will be rated A3, BBB+ and A by Moody’s Investor Service, Standard & Poor’s and Fitch Ratings, respectively. None of these securities ratings is a recommendation to buy, sell or hold these securities. Each rating may be subject to revision or withdrawal at any time, and should be evaluated independently of any other rating.
 
Registrar
U.S. Bank National Association
 
Depositary
U.S. Bank National Association
 
Calculation Agent
U.S. Bank National Association


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RISK FACTORS
 
You should carefully consider the risks described below and all of the information contained and incorporated by reference in this Prospectus and Consent Solicitation Statement before you decide whether to participate in the Exchange Offer and the Consent Solicitation. In particular, you should carefully consider, inter alia, the matters discussed below and under “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2009 which is incorporated by reference herein.
 
Risks Related to the Exchange Offer and the Consent Solicitation
 
The Normal ITS may be acquired by us other than through the Exchange Offer in the future, on more favorable terms and for more favorable consideration.
 
From time to time in the future, with regulatory approval and to the extent permitted by applicable law, we may acquire Normal ITS that remain outstanding following the consummation of the Exchange Offer, whether or not such acquisitions are consummated through tender offers, exchange offers or otherwise. Any such acquisitions may be effected upon such terms and at such prices as we may determine, which could be for cash or other consideration. There can be no assurance as to which, if any, of these alternatives (or combinations thereof) we might pursue. The consideration we may pay or the terms that we may offer in any such acquisition may be more favorable than we are offering in the Exchange Offer.
 
The consummation of the Exchange Offer and the Consent Solicitation may be delayed or may not occur.
 
We are not obligated to complete the Exchange Offer and the Consent Solicitation under certain circumstances and unless and until certain conditions are satisfied, as described more fully below in the section entitled “The Exchange Offer and the Consent Solicitation — Conditions of the Exchange Offer.” Even if the Exchange Offer and the Consent Solicitation are completed, they may not be completed on the schedule described in this Prospectus and Consent Solicitation Statement. Accordingly, participating holders may have to wait longer than expected to receive their Depositary Shares.
 
If you do not follow the procedures, your tender and Consent may not be accepted.
 
We will only deliver Depositary Shares in the Exchange Offer for Normal ITS that are timely and properly tendered, or alternatively, we will only pay a Consent Fee in the Consent Solicitation for Consents that are timely and properly delivered. Therefore, you should allow sufficient time to ensure timely delivery of the Normal ITS or of your Consents and you should carefully follow the instructions on how to tender your Normal ITS or deliver your Consent. Neither we nor the Information and Exchange Agent are required to tell you of any defects or irregularities with respect to your tender of Normal ITS or your delivery of your Consent.
 
We have not obtained a third-party determination that the Exchange Offer is fair to holders of Normal ITS.
 
We are not making a recommendation as to whether you should exchange your Normal ITS in the Exchange Offer. We have not retained, and do not intend to retain, any unaffiliated representative to act on behalf of the holders of Normal ITS for purposes of negotiating the Exchange Offer or preparing a report concerning the fairness of the Exchange Offer. You must make your own independent decision regarding your participation in the Exchange Offer and the Consent Solicitation.
 
Holders of Normal ITS who participate in the Exchange Offer will lose their rights under the Trust Agreement and the other agreements governing the Normal ITS that they tender.
 
Upon acceptance of Normal ITS tendered in the Exchange Offer after the Expiration Date, holders of Normal ITS will lose the contractual and legal rights they currently have under the Trust Agreement and the other agreements governing the Normal ITS and will have different rights as holders of Depositary Shares. For example, the holders of Normal ITS who tender their Normal ITS in the Exchange Offer will lose their right


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to receive distributions on the Normal ITS and any other rights they have under the Trust Agreement or the Indenture governing the Underlying Notes.
 
We may not accept all of the Normal ITS tendered in the Exchange Offer and as a result you may not realize the full economic benefit of holding the Depositary Shares in lieu of the Normal ITS.
 
Depending on the amount of Normal ITS tendered in the Exchange Offer, we may not accept all of the Normal ITS tendered. We intend that the Normal ITS continue to be listed on the New York Stock Exchange, and, therefore, if accepting all of the Normal ITS would cause the Normal ITS to be de-listed, we will reduce the number of Normal ITS sought and accept a pro rata amount of the Normal ITS tendered in the Exchange Offer by all holders in the aggregate to ensure that the Normal ITS continue to be listed on the New York Stock Exchange after the consummation of the Exchange Offer. The New York Stock Exchange will consider de-listing the outstanding Normal ITS if (1) the aggregate market value of the Normal ITS is less than $4 million (which would occur if greater than 99% of the outstanding Normal ITS were tendered into the Exchange Offer, based on the $1,000 liquidation amount per Normal ITS) or (2) for any other reason based on the suitability for the continued listing of the Normal ITS in light of all pertinent facts as determined by the New York Stock Exchange. Any Normal ITS not accepted will be returned to tendering holders promptly after the Expiration Date. Therefore, holders of such tendered Normal ITS that are returned will not be able to realize the economic benefit of holding the Depositary Shares. Non-cumulative dividends, if declared, will accrue on the Preferred Stock underlying the Depositary Shares at a rate of 7.189% per annum until the later of April 15, 2011 and the Stock Purchase Date. During that same period, holders of the Normal ITS will be entitled to receive distributions at a rate of 6.189% per annum.
 
Furthermore, holders who have validly tendered their Normal ITS will be deemed to have validly delivered their Consents to the Proposed Amendments by such tender. Therefore, if we do not accept all of your validly tendered Normal ITS due to proration, you will still be deemed to have delivered your Consents with respect to all of your validly tendered Normal ITS, even those that are not accepted for exchange.
 
Additionally, a holder will not know what portion of its Normal ITS will be accepted for exchange in the Exchange Offer at the time such holder tenders its Normal ITS. Therefore, a holder that tenders all of its Normal ITS in the Exchange Offer may continue to own a portion of such holder’s Normal ITS if not all of such Normal ITS are accepted for exchange in the Exchange Offer.
 
Risks Related to Holding Normal ITS After the Expiration of the Exchange Offer and Consent Solicitation
 
If the Exchange Offer is successful, the trading market for Normal ITS may be limited and the market price for the Normal ITS may be significantly depressed and more volatile.
 
Depending on the amount of Normal ITS that are accepted for exchange in the Exchange Offer, the trading market for the Normal ITS that remain outstanding after the Exchange Offer may be significantly limited. A reduced trading volume may decrease the price and increase the volatility of the trading price of the Normal ITS that remain outstanding following the Exchange Offer.
 
If you do not participate in the Exchange Offer, your pledged securities will remain encumbered.
 
Although you are the beneficial owner of the securities underlying your Normal ITS, if you do not participate in the Exchange Offer, those securities will remain pledged to secure payment of the purchase price under the stock purchase contracts. Thus, your rights to the pledged securities will remain subject to our security interest. Additionally, notwithstanding the automatic termination of the stock purchase contracts in the event that we become the subject of a case under the U.S. Bankruptcy Code, the delivery of the pledged securities to you may be delayed by the imposition of the automatic stay of Section 362 of the U.S. Bankruptcy Code.


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Risks Related to the Preferred Stock and the Depositary Shares After the Exchange Offer
 
You are making an investment decision with regard to the Depositary Shares as well as the Preferred Stock.
 
As described in this Prospectus and Consent Solicitation Statement, we will deliver fractional interests in shares of Preferred Stock, in the form of the Depositary Shares, in connection with the Exchange Offer. Accordingly, the depositary will rely on the payments it receives on the Preferred Stock to fund all payments on the Depositary Shares. You should carefully review the information in this Prospectus and Consent Solicitation Statement regarding both of these securities.
 
We may not declare dividends on the Preferred Stock and dividends on the Preferred Stock are non-cumulative. If we do not declare dividends on the Preferred Stock, holders of Depositary Shares will not be entitled to receive related distributions on their Depositary Shares.
 
Dividends on shares of Preferred Stock will not be mandatory. Holders of the Preferred Stock, including the depositary, will only be entitled to receive dividends for any given dividend period if, when and as declared by our board of directors out of legally available assets. Consequently, if our board of directors or a duly authorized committee of the board does not authorize and declare a dividend for any dividend period, the depositary would not be entitled to receive any such dividend and no related distribution will be made on the Depositary Shares, and such unpaid dividend will cease to accrue and be payable. Dividends on the Preferred Stock are non-cumulative. We will have no obligation to pay dividends accrued for a dividend period after the dividend payment date for such period, and holders of Depositary Shares will not be entitled to receive any distribution with respect to such dividends, if our board of directors or a duly authorized committee of the board has not declared such dividend before the related dividend payment date, whether or not dividends are declared for any subsequent dividend period with respect to the Preferred Stock or any other series of our preferred stock. If we do not declare and pay dividends on the Preferred Stock, you will not receive corresponding distributions on your Depositary Shares and the market price of your Depositary Shares may decline.
 
The Preferred Stock is equity and is subordinate to our existing and future indebtedness, including the Underlying Notes corresponding to any Normal ITS that remain outstanding following the Exchange Offer.
 
The shares of Preferred Stock are our equity interests and do not constitute indebtedness. As such, the shares of Preferred Stock, and the related Depositary Shares, will rank junior to all indebtedness and other non-equity claims on us, including the Underlying Notes corresponding to any Normal ITS that remain outstanding following the Exchange Offer, with respect to assets available to satisfy claims on us, including in our liquidation, dissolution or winding up. Our existing and future indebtedness may restrict payment of dividends on the Preferred Stock. As of March 31, 2010, our indebtedness and obligations, not including the $1.25 billion aggregate principal amount of outstanding Underlying Notes, on a consolidated basis, totaled approximately $16.0 billion. Additionally, unlike indebtedness, where principal and interest would customarily be payable on specified due dates, in the case of preferred stock such as the Preferred Stock (1) dividends are payable only if declared by our board of directors or a duly authorized committee of the board and (2) as a corporation, we are subject to restrictions on payments of dividends and redemption price out of lawfully available assets. Further, the Preferred Stock places no restrictions on our business or operations or on our ability to incur indebtedness or engage in any transactions, subject only to the limited voting rights referred to below under “Description of Preferred Stock — Voting” and the limited restrictions on our ability to make payments on our junior stock if we are not current on paying dividends on the Preferred Stock.
 
Our ability to pay dividends on the Preferred Stock, and therefore your ability to receive distributions on your Depositary Shares, may be limited by federal regulatory considerations.
 
As a bank holding company, our ability to declare and pay dividends is dependent on certain federal regulatory considerations. There are various regulatory restrictions on the ability of our banking subsidiaries to pay dividends or make other payments to us. Federal banking laws regulate the amount of dividends that may


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be paid by our banking subsidiaries without prior regulatory approval. The amount of dividends available to us from our banking subsidiaries after meeting the regulatory capital requirements for well-capitalized banks was approximately $3.3 billion at March 31, 2010. If regulatory considerations prohibit or limit our ability to pay dividends on the Preferred Stock, you will not receive related distributions on your Depositary Shares and the market price of the Depositary Shares may decline.
 
You should not expect us to redeem the Preferred Stock on the date it first becomes redeemable or on any particular date after it becomes redeemable.
 
The Preferred Stock is a perpetual equity security. The Preferred Stock has no maturity or mandatory redemption date and is not redeemable at the option of investors. By its terms, the Preferred Stock may be redeemed by us, at our option, either in whole or in part at any time on or after the later of April 15, 2011 and the Stock Purchase Date. Any decision we may make at any time to propose a redemption of the Preferred Stock will depend upon, among other things, our evaluation of our capital position, the composition of our shareholders’ equity and general market conditions at that time. Our right to redeem the Preferred Stock is subject to two important limitations.
 
First, under the Federal Reserve’s risk-based capital guidelines applicable to bank holding companies, any redemption of the Preferred Stock is subject to prior approval of the Federal Reserve. Moreover, we have agreed with the Federal Reserve that, unless it authorizes us to do otherwise in writing, we will redeem the Preferred Stock only if it is replaced with other tier 1 capital that is not a restricted core capital element, for example, common stock or another series of non-cumulative perpetual preferred stock.
 
There can be no assurance that the Federal Reserve will approve any redemption of the Preferred Stock that we may propose. There also can be no assurance that, if we propose to redeem the Preferred Stock without replacing the Preferred Stock with tier 1 capital that is not a restricted core capital element, the Federal Reserve will authorize such redemption. We understand that the factors that the Federal Reserve will consider in evaluating a proposed redemption, or a request that we be permitted to redeem the Preferred Stock without replacing it with tier 1 capital that is not a restricted core capital element, include its evaluation of the overall level and quality of our capital components, considered in light of our risk exposures, earnings and growth strategy, and other supervisory considerations, but the Federal Reserve may change these factors at any time.
 
Second, at or prior to the initial issuance of the Preferred Stock, we will enter into the Replacement Capital Covenant, which will limit our right to redeem or repurchase the Preferred Stock. In the Replacement Capital Covenant, we covenant to redeem or repurchase shares of Preferred Stock prior to the termination date of the Replacement Capital Covenant only if and to the extent that (1) we have obtained the prior approval of the Federal Reserve, if such approval is then required by the Federal Reserve, and (2) the total redemption or repurchase price is equal to or less than the sum, as of the date of redemption or repurchase, of:
 
  •  133.33% of the aggregate net cash proceeds we or our subsidiaries have received during the 180 days prior to the date of such repurchase or the date we give notice of such redemption from the issuance and sale of our common stock; plus
 
  •  100% of the aggregate net cash proceeds we or our subsidiaries have received during the 180 days prior to the date of such repurchase or the date we give notice of such redemption from the issuance of certain other specified securities that have equity-like characteristics that satisfy the requirements of the Replacement Capital Covenant, which means generally that such other securities have characteristics that are the same as, or more equity-like than, the applicable characteristics of the Preferred Stock at that time.
 
Our ability to raise proceeds from qualifying securities during the 180 days prior to a notice of redemption or proposed repurchase will depend on, among other things, market conditions at such time as well as the acceptability to prospective investors of the terms of such qualifying securities. Accordingly, there could be circumstances where we would wish to redeem or repurchase some or all of the Preferred Stock and


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sufficient cash is available for that purpose, but we are restricted from doing so because we have not been able to obtain proceeds from qualifying securities sufficient for that purpose.
 
If we are deferring payments on our outstanding junior subordinated debt securities, including the Underlying Notes, or are in default under the indenture governing those securities, we will be prohibited from making distributions on or redeeming the Preferred Stock.
 
The terms of our outstanding junior subordinated debt securities, including the Underlying Notes, prohibit us from declaring or paying any dividends or distributions on the Preferred Stock, or redeeming, purchasing, acquiring or making a liquidation payment with respect to our Preferred Stock, if we are aware of any event that would be an event of default under the indenture governing those junior subordinated debt securities or at any time when we have deferred interest thereunder.
 
If we defer interest payments on the Underlying Notes or contract payments on the stock purchase contracts underlying the Normal ITS remaining outstanding after the Exchange Offer, we may not pay dividends on or redeem the Preferred Stock and you will not receive distributions or redemption payments on your Depositary Shares.
 
We may defer interest payments on the Underlying Notes for up to ten years, provided no deferral period will extend beyond the final repayment date or the earlier redemption of the Underlying Notes. We may also elect, or be required by the Federal Reserve, to defer contract payments on the stock purchase contracts. During a deferral period, we cannot pay any dividends or make any distributions relating to, or redeem, purchase, acquire or make a liquidation payment relating to, any of our capital stock, including the Preferred Stock, or make an interest, principal or premium payment on or repurchase of any of our debt securities that rank equal with or junior to the Underlying Notes, subject to certain exceptions.
 
A downgrade, suspension or withdrawal of any rating assigned by a rating agency to us or our securities, including the Depositary Shares and the Preferred Stock, could cause the liquidity or trading price of the Depositary Shares to decline significantly.
 
Real or anticipated changes in the credit ratings assigned to the Depositary Shares, the Preferred Stock or our credit ratings generally could affect the trading price of the Depositary Shares. Credit ratings are not a recommendation to buy, sell or hold any security, and may be revised or withdrawn at any time by the issuing organization in its sole discretion. In addition, credit rating agencies continually review their ratings for the companies that they follow, including us. The credit rating agencies also evaluate the financial services industry as a whole and may change their credit rating for us and our securities, including the Preferred Stock and Depositary Shares based on their overall view of our industry. Our corporate credit rating is currently on negative outlook by Moody’s Investor Service. If Moody’s downgrades our corporate rating, the ratings of our securities, including the Depositary Shares and Preferred Stock, may also be downgraded. We expect that the Depositary Shares will initially be rated by Moody’s Investor Service, Standard & Poor’s and Fitch Ratings. We cannot assure you that these ratings will remain for any given period of time or that these ratings will not be lowered or withdrawn entirely by a rating agency. A downgrade or withdrawal or the announcement of a possible downgrade or withdrawal in the ratings assigned to the Depositary Shares, the Preferred Stock or us or our other securities could cause the trading price of the Depositary Shares to decline significantly.
 
The Depositary Shares may not have an active trading market.
 
The Depositary Shares and the underlying Preferred Stock that are to be issued in the Exchange Offer are new issues with no established trading market. Although we plan to apply to have the Depositary Shares listed on the New York Stock Exchange, there is no guarantee that we will be able to list the Depositary Shares. Even if the Depositary Shares are listed, there may be little or no secondary market for the Depositary Shares. Any secondary market for the Depositary Shares that may develop, may not provide significant liquidity and transaction costs in any such secondary market could be high. As a result, the difference between bid and asked prices in any secondary market for the Depositary Shares could be substantial. Further, because the shares of Preferred Stock do not have a stated maturity date, investors seeking liquidity in the Depositary


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Shares will be limited to selling their Depositary Shares in the secondary market. We do not expect that there will be any separate public trading market for the shares of the Preferred Stock except as represented by the Depositary Shares.
 
Holders of Preferred Stock and the Depositary Shares will have limited voting rights.
 
Holders of the Preferred Stock, and therefore holders of the Depositary Shares, have no voting rights with respect to matters that generally require the approval of our voting shareholders. However, holders of the Preferred Stock will have the right to vote as a class on certain fundamental matters that may affect the preference or special rights of the Preferred Stock, as described below under “Description of Preferred Stock — Voting.” In addition, if dividends on any shares of the Preferred Stock or any other class or series of preferred stock that ranks on parity with the Preferred Stock as to payment of dividends with similar voting rights have not been declared or paid for the equivalent of six dividend payments, whether or not for consecutive dividend periods, holders of the outstanding shares of Preferred Stock, together with holders of any other series of our preferred stock ranking equal with the Preferred Stock with similar voting rights, will be entitled to vote for the election of two additional directors to our board, subject to the terms and to the limited extent described under “Description of Preferred Stock — Voting.” Holders of Depositary Shares must act through the depositary to exercise any voting rights in respect of the Preferred Stock.
 
Holders of Depositary Shares may be unable to use the dividends-received deduction.
 
Distributions paid to corporate U.S. holders of the Depositary Shares out of dividends on the Preferred Stock may be eligible for the dividends-received deduction if we have current or accumulated earnings and profits, as determined for U.S. federal income tax purposes. Although we presently have accumulated earnings and profits, we may not have sufficient current or accumulated earnings and profits during future fiscal years for the distributions on the Preferred Stock to qualify as dividends for U.S. federal income tax purposes. If any distributions on the Preferred Stock with respect to any fiscal year are not eligible for the dividends-received deduction because of insufficient current or accumulated earnings and profits, the market value of the Depositary Shares may decline.


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SELECTED FINANCIAL DATA
 
The following table sets forth our summary historical consolidated financial data as of and for the periods indicated. The historical financial data as of and for the years ended December 31, 2005 through 2009 have been derived from our audited historical consolidated financial statements and related notes included in our Annual Report on Form 10-K for the year ended December 31, 2009 (our “2009 Form 10-K”), which is incorporated by reference into this Prospectus and Consent Solicitation Statement. You should read this information in conjunction with our consolidated financial statements and related notes included in our 2009 Form 10-K. The historical financial data as of March 31, 2010 and for the three months ended March 31, 2010 and 2009 have been derived from our unaudited historical interim condensed consolidated financial statements and related notes included in our Quarterly Report on Form 10-Q for the quarter ended March 31, 2010 (our “March 31, 2010 Form 10-Q”), which is incorporated by reference into this Prospectus and Consent Solicitation Statement. You should read this information in conjunction with our unaudited historical interim condensed consolidated financial statements and related notes included in our March 31, 2010 Form 10-Q. In our opinion, such unaudited interim financial data reflects all adjustments, consisting of normal recurring accruals, necessary for the fair presentation of the results for those periods. The results of operations for the interim periods, for seasonal and other factors, are not necessarily indicative of the results to be expected for the full year or any future period. For more information, see the section above entitled “Where You Can Find More Information.”
 
                                                         
    As of and for the
    As of and for the
 
    Three Months Ended March 31,     Year Ended December 31,  
    2010     2009     2009     2008     2007     2006     2005  
    (Dollars and shares in millions, except per share data)  
 
Condensed Income Statement
                                                       
Net interest income (taxable-equivalent basis)(a)
  $ 2,403     $ 2,095     $ 8,716     $ 7,866     $ 6,764     $ 6,790     $ 7,088  
Noninterest income
    1,952       1,986       8,403       7,789       7,281       6,938       6,257  
Securities gains (losses), net
    (34 )     (198 )     (451 )     (978 )     (15 )     (14 )     (106 )
                                                         
Total net revenue
    4,321       3,883       16,668       14,677       14,060       13,742       13,239  
Noninterest expense
    2,136       1,871       8,281       7,348       6,907       6,229       5,919  
Provision for credit losses
    1,310       1,318       5,557       3,096       792       544       666  
                                                         
Income before taxes
    875       694       2,830       4,233       6,361       6,969       6,654  
Taxable-equivalent adjustment
    51       48       198       134       75       49       33  
Applicable income taxes
    161       101       395       1,087       1,883       2,112       2,082  
                                                         
Net income
    663       545       2,237       3,012       4,403       4,808       4,539  
Net (income) loss attributable to noncontrolling interests
    6       (16 )     (32 )     (66 )     (79 )     (57 )     (50 )
                                                         
Net income attributable to U.S. Bancorp
  $ 669     $ 529     $ 2,205     $ 2,946     $ 4,324     $ 4,751     $ 4,489  
                                                         
Net income applicable to U.S. Bancorp common shareholders
  $ 648     $ 419     $ 1,803     $ 2,819     $ 4,258     $ 4,696     $ 4,483  
                                                         
Per Common Share
                                                       
Earnings per share
  $ .34     $ .24     $ .97     $ 1.62     $ 2.45     $ 2.64     $ 2.45  
Diluted earnings per share
  $ .34     $ .24     $ .97     $ 1.61     $ 2.42     $ 2.61     $ 2.42  
Dividends declared per share
  $ .050     $ .050     $ .200     $ 1.700     $ 1.625     $ 1.390     $ 1.230  
Book value per share
  $ 13.16     $ 10.96     $ 12.79     $ 10.47     $ 11.60     $ 11.44     $ 11.07  
Market value per share
  $ 25.88     $ 14.61     $ 22.51     $ 25.01     $ 31.74     $ 36.19     $ 29.89  
Average common shares outstanding
    1,910       1,754       1,851       1,742       1,735       1,778       1,831  
Average diluted common shares outstanding
    1,919       1,760       1,859       1,756       1,756       1,803       1,856  


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    As of and for the
    As of and for the
 
    Three Months Ended March 31,     Year Ended December 31,  
    2010     2009     2009     2008     2007     2006     2005  
    (Dollars and shares in millions, except per share data)  
 
Financial Ratios
                                                       
Return on average assets
    .96 %     .81 %     .82 %     1.21 %     1.93 %     2.23 %     2.21 %
Return on average common equity
    10.5       9.0       8.2       13.9       21.3       23.5       22.5  
Net interest margin (taxable-equivalent basis)(a)
    3.90       3.59       3.67       3.66       3.47       3.65       3.97  
Efficiency ratio(b)
    49.0       45.8       48.4       46.9       49.2       45.4       44.4  
Average Balances
                                                       
Loans
  $ 192,878     $ 185,705     $ 194,755     $ 184,955     $ 147,348     $ 140,601     $ 131,610  
Loans held for sale
    3,932       5,191       5,820       3,914       4,298       3,663       3,290  
Investment securities
    46,211       42,321       42,809       42,850       41,313       39,961       42,103  
Earning assets
    248,828       235,314       237,287       215,046       194,683       186,231       178,425  
Assets
    281,722       266,237       268,360       244,400       223,621       213,512       203,198  
Noninterest-bearing deposits
    38,000       36,020       37,856       28,739       27,364       28,755       29,229  
Deposits
    182,531       160,528       167,801       136,184       121,075       120,589       121,001  
Short-term borrowings
    32,551       32,217       29,149       38,237       28,925       24,422       19,382  
Long-term debt
    32,456       37,784       36,520       39,250       44,560       40,357       36,141  
Total U.S. Bancorp shareholders’ equity
    26,414       26,819       26,307       22,570       20,997       20,710       19,953  
Period End Balances
                                                       
Loans
  $ 191,153     $ 184,173     $ 195,408     $ 185,229     $ 153,827     $ 143,597     $ 136,462  
Allowance for credit losses
    5,439       4,105       5,264       3,639       2,260       2,256       2,251  
Investment securities
    46,913       39,266       44,768       39,521       43,116       40,117       39,768  
Assets
    282,428       263,624       281,176       265,912       237,615       219,232       209,465  
Deposits
    184,039       162,566       183,242       159,350       131,445       124,882       124,709  
Long-term debt
    32,399       38,825       32,580       38,359       43,440       37,602       37,069  
Total U.S. Bancorp shareholders’ equity
    26,709       27,223       25,963       26,300       21,046       21,197       20,086  
Capital ratios
                                                       
Tier 1 capital
    9.9 %     10.9 %     9.6 %     10.6 %     8.3 %     8.8 %     8.2 %
Total risk-based capital
    13.2       14.4       12.9       14.3       12.2       12.6       12.5  
Leverage
    8.6       9.8       8.5       9.8       7.9       8.2       7.6  
 
 
(a) Presented on a fully taxable-equivalent basis utilizing a tax rate of 35 percent.
 
(b) Computed as noninterest expense divided by the sum of net interest income on a taxable-equivalent basis and noninterest income excluding net securities gains (losses).

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USE OF PROCEEDS
 
We will not receive any cash proceeds from the Exchange Offer and the Consent Solicitation. We will pay any accrued and unpaid distributions on each Normal ITS accepted in the Exchange Offer up to, but excluding, the settlement date and any Consent Fees payable in the Consent Solicitation from cash on hand. We will pay all expenses related to the Exchange Offer and the Consent Solicitation, including any brokerage commissions or fees to the Dealer Managers and the Information and Exchange Agent. Except as otherwise provided in the section of this Prospectus and Consent Solicitation Statement titled “The Exchange Offer and the Consent Solicitation — Acceptance of Normal ITS for Purchase; Delivery of Depositary Shares,” we will pay the transfer taxes, if any, on the exchange of any Normal ITS.


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CAPITALIZATION
 
The following table sets forth the carrying amount of our capitalization, as of March 31, 2010, on an actual basis and on an as adjusted basis to reflect completion of the Exchange Offer under both an assumed High Participation Scenario and an assumed Low Participation Scenario. The “High Participation Scenario” assumes the tender of 75% of the outstanding Normal ITS and the exchange of such securities for Depositary Shares. The “Low Participation Scenario” assumes the tender and exchange of 25% of the outstanding Normal ITS for Depositary Shares.
 
This table should be read in conjunction with the information set forth above under the sections entitled “Selected Financial Data” and our consolidated financial statements for the years ended December 31, 2009 and 2008 and the three-months ended March 31, 2010 and 2009, which are incorporated by reference into this Prospectus and Consent Solicitation Statement.
 
                         
    As of March 31, 2010  
          As Adjusted for
    As Adjusted for
 
          Exchange Offer
    Exchange Offer
 
    Actual     (High)     (Low)  
    (Dollars in millions)  
 
Total deposits
  $ 184,039     $ 184,039     $ 184,039  
Long-term debt(1)
    31,148       31,148       31,148  
Normal ITS
    1,251       313       938  
Preferred stock
                       
Series A issued hereby(2)
          798       266  
Series B
    1,000       1,000       1,000  
Series D
    500       500       500  
Series E
                 
Total
    1,500       2,298       1,766  
Common shareholders’ equity(3)
    25,209       25,322       25,247  
Total shareholders’ equity
    26,709       27,620       27,013  
 
 
(1) Long-term debt does not reflect the $1,251 aggregate principal amount of Underlying Notes corresponding to the outstanding Normal ITS.
 
(2) Amount of preferred stock is determined based upon its assumed fair market value at the time of the exchange. The amounts for preferred stock above assumes a fair market value equal to 85% of its liquidation amount.
 
(3) As adjusted shareholders’ equity is increased due to a gain attributable to common shareholders as a result of the Exchange Offer reduced by taxes and expenses associated with the transaction.


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RATIO OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
 
Our ratio of earnings to fixed charges and earnings to combined fixed charges and preferred stock dividends for each of the periods are indicated as follows:
 
                                                 
    Three Months Ended
       
    March 31,     Year Ended December 31,  
    2010     2009     2008     2007     2006     2005  
 
Ratio of Earnings to Fixed Charges:
                                               
Excluding interest on deposits
    2.93       2.36       2.40       2.61       3.10       4.27  
Including interest on deposits
    2.24       1.83       1.85       1.95       2.21       2.84  
Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends:
                                               
Excluding interest on deposits
    2.80       1.95       2.30       2.59       3.08       4.27  
Including interest on deposits
    2.18       1.63       1.80       1.93       2.20       2.84  
 
For the purpose of computing the ratios of earnings to fixed charges and combined fixed charges and preferred stock dividends, earnings consist of consolidated income from continuing operations before provision for income taxes, minority interest and fixed charges, and fixed charges consist of interest expense, amortization of debt issuance costs and the portion of rental expense deemed to represent interest. For the period ended December 31, 2005, there was no preferred stock outstanding, and, accordingly, the ratio of earnings to fixed charges and the ratio of earnings to combined fixed charges and preferred stock dividends for such period are the same.


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THE EXCHANGE OFFER AND THE CONSENT SOLICITATION
 
Purpose of the Exchange Offer and the Consent Solicitation
 
We are conducting the Exchange Offer in order to improve our capital structure by replacing the Normal ITS, which are hybrid securities, with the Preferred Stock, which is a more traditional form of equity capital. In addition, by retiring the Underlying Notes that correspond to the Normal ITS that we acquire in the Exchange Offer, we believe we will facilitate any future remarketing of the Underlying Notes. We aim to further facilitate any future remarketing by adopting the Proposed Amendments in the Consent Solicitation.
 
Pursuant to a remarketing agreement, the Trust must first attempt to remarket the Underlying Notes approximately one month prior to the Stock Purchase Date and must continue to attempt to remarket the Underlying Notes on a quarterly basis until the earlier of a successful remarketing and March 31, 2012, subject to certain limitations, conditions and other requirements. As a result of the Exchange Offer, we expect to reduce the number of Normal ITS that are outstanding and to retire the Underlying Notes forming part of the Normal ITS that are accepted for exchange. This will reduce the aggregate principal amount of Underlying Notes that the Trust will be required to remarket, which we believe will facilitate a remarketing. A successful remarketing would benefit us because it would result in us receiving cash payments upon the settlement of the stock purchase contracts that correspond to the Normal ITS. If an attempted remarketing fails, our receipt of any cash proceeds from the sale of the remarketed Underlying Notes would be delayed, and if all remarketing attempts fail, the Underlying Notes would be returned to us in full satisfaction of the Trust’s obligation to pay the purchase price for the Preferred Stock and we would not receive any cash proceeds from a sale of the remarketed Underlying Notes.
 
The purpose of the Consent Solicitation is to obtain Consents from the holders of Normal ITS to certain amendments, which we refer to as the “Proposed Amendments,” to the Trust Agreement, the Indenture, and the collateral agreement and stock purchase contract agreement relating to the Normal ITS. The proposed amendments to the Trust Agreement would allow us to retire the Normal ITS that we acquire in the Exchange Offer and would authorize the Trust to approve the amendments and modifications to the collateral agreement and stock purchase contract agreement. The proposed amendments to the Indenture would permit additional flexibility in the terms, conditions and requirements applicable to the remarketing of the Underlying Notes, which we believe will further facilitate a remarketing. The proposed amendments to the collateral agreement would allow for the Underlying Notes corresponding to the Normal ITS acquired by us in the Exchange Offer to be released from their pledge and delivered to us for cancellation, and the proposed amendments to the stock purchase contract agreement would allow for the termination of the stock purchase contracts corresponding to the Normal ITS acquired by us in the Exchange Offer and for the future issuance of Preferred Stock upon settlement of the Exchange Offer and the stock purchase contracts as a result of the Exchange Offer. Pursuant to the terms of the Trust Agreement and the Indenture, the Proposed Amendments require the receipt of Consents in respect of at least a majority in aggregate liquidation amount of the outstanding Normal ITS (which corresponds to at least a majority of the outstanding Normal ITS).
 
Following the completion of the Exchange Offer and the Consent Solicitation, and the effectiveness of the Proposed Amendments, (1) the Trust will retire the Normal ITS we acquire in the Exchange Offer, (2) the corresponding Underlying Notes will be transferred to us by the Trust and surrendered by us to the Indenture trustee for cancellation and (3) the corresponding stock purchase contracts will be terminated in connection with the delivery of Depositary Shares to the exchanging holders of Normal ITS in the Exchange Offer.
 
Terms of the Exchange Offer
 
General
 
We are offering to exchange up to 1,250,000 Depositary Shares, each representing a 1/100th ownership interest in a share of our newly issued Preferred Stock, for any and all of the 1,250,000 outstanding Normal ITS, on the terms and subject to the conditions set forth in this Prospectus and Consent Solicitation Statement and in the accompanying Letter of Transmittal and Consent. You must tender whole numbers of Normal ITS in the Exchange Offer.


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Offer Consideration
 
For each Normal ITS that we accept for exchange in accordance with the terms of the Exchange Offer, we will deliver one Depositary Share, representing a 1/100th ownership interest in a share of our Preferred Stock. We will also pay cash in an amount equal to any accrued and unpaid distributions on each Normal ITS accepted in the Exchange Offer up to, but excluding, the settlement date.
 
Non-cumulative dividends, if declared, will accrue on the Preferred Stock underlying the Depositary Shares at a rate of 7.189% per annum until the later of April 15, 2011 and the Stock Purchase Date. During that same period, holders of the Normal ITS will be entitled to receive distributions at a rate of 6.189% per annum. Otherwise, each share of Preferred Stock underlying the Depositary Shares will be identical in all respects to the Preferred Stock to be issued upon settlement of the stock purchase contracts forming part of the Normal ITS, including with respect to dividend payments following the later of April 15, 2011 and the Stock Purchase Date. See “Description of Preferred Stock.”
 
Treatment of Stripped ITS and Capital ITS
 
We are not soliciting exchanges of Stripped ITS or Capital ITS, none of which are outstanding as of the date hereof, and we are not soliciting Consents with respect thereto. If you hold Stripped ITS or Capital ITS and would like to participate in the Exchange Offer or the Consent Solicitation, you must recreate Normal ITS from your Stripped ITS and Capital ITS in accordance with the terms of the Trust Agreement and then tender the recreated Normal ITS in the Exchange Offer or deliver your Consent with respect to such Normal ITS.
 
The Consent Solicitation
 
In connection with the Exchange Offer, we are conducting the Consent Solicitation to obtain Consents to the Proposed Amendments from holders of Normal ITS, as more particularly described below under the section entitled “The Exchange Offer and the Consent Solicitation — The Proposed Amendments.”
 
The Proposed Amendments
 
General
 
The following section sets forth a brief description of the Proposed Amendments for which Consents are being sought pursuant to the Consent Solicitation. If the Consent Solicitation is successful, the Proposed Amendments will be embodied in amendments to the Trust Agreement, the Indenture (by means of an Eighth Supplemental Indenture) and the collateral agreement and stock purchase contract agreement relating to the Normal ITS (by means of the amendment and restatement of those agreements). Forms of each of the amendments to the Trust Agreement, the Eighth Supplemental Indenture, the amended and restated collateral agreement and the amended and restated stock purchase contract agreement are filed as exhibits to the registration statement of which this Prospectus and Consent Solicitation Statement forms a part and are described in more detail below. The descriptions contained in this Prospectus and Consent Solicitation Statement are meant to be only a summary of the provisions of the Proposed Amendments and do not restate the entire terms of the Proposed Amendments. Pursuant to the terms of the Trust Agreement and the Indenture, the Proposed Amendments require the receipt of Consents in respect of at least a majority in aggregate liquidation amount of the outstanding Normal ITS (which corresponds to at least a majority of the outstanding Normal ITS).
 
Proposed Amendments to the Trust Agreement
 
The Proposed Amendments to the Trust Agreement will permit the Trust to retire the Normal ITS that we accept for exchange in the Exchange Offer, which we believe will facilitate the remarketing of the Underlying Notes. The Proposed Amendments to the Trust Agreement will also authorize the trustees of the Trust to amend or modify related documents, including the collateral agreement and the stock purchase contract agreement to give effect to the Proposed Amendments to those agreements described below, and to make


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conforming revisions to the Trust Agreement to reflect the changes in the remarketing period for the Underlying Notes that are being proposed as part of the Proposed Amendments to the Indenture.
 
Proposed Amendments to the Indenture
 
The Proposed Amendments to the Indenture are intended to further facilitate a future remarketing of the Underlying Notes. The Proposed Amendments would (1) extend the period during which the Underlying Notes could be remarketed during any remarketing attempt from one day to 30 days, and (2) allow us to remarket the Underlying Notes in two or more series having different stated maturities, interest rates, denominations and interest payment dates. The Proposed Amendments would also allow us to retire any Underlying Notes corresponding to the Normal ITS that we acquire in the Exchange Offer.
 
Proposed Amendments to the Collateral Agreement
 
The Proposed Amendments to the collateral agreement will provide, in connection with the settlement of the Exchange Offer, for the partial release of the pledge of Underlying Notes securing the Trust’s obligations to pay for Preferred Stock upon the settlement of the stock purchase contracts underlying the Normal ITS. The pledge would be released with respect to the Underlying Notes corresponding to the Normal ITS acquired by us in the Exchange Offer, and such Underlying Notes would be released to the Trust for delivery to us. This amendment would allow us to surrender the Underlying Notes corresponding to the Normal ITS we acquire in the Exchange Offer to the Indenture trustee for cancellation.
 
Proposed Amendments to the Stock Purchase Contract Agreement
 
The Proposed Amendments to the stock purchase contract agreement will provide, in connection with the settlement of the Exchange Offer, for the cancellation of the stock purchase contracts corresponding to the Normal ITS acquired by us in the Exchange Offer and that all rights of the Trust with respect to such stock purchase contracts will cease upon such cancellation, including but not limited to any right to receive any contract payments. The Proposed Amendments to the stock purchase contract agreement would also provide for the possible issuance of fractional shares of Preferred Stock upon settlement of the Exchange Offer and the stock purchase contracts underlying the Normal ITS that remain outstanding after the completion of the Exchange Offer. Conforming changes to the stock purchase contract agreement would also be made to reflect the changes in the remarketing period for the Underlying Notes that are being proposed as part of the Proposed Amendments to the Indenture.
 
How to Consent
 
You may deliver your Consent to the Proposed Amendments by validly tendering your Normal ITS into the Exchange Offer, in which case you will be deemed to have validly delivered your Consents to the Proposed Amendments by such tender. You may also deliver Consents to the Proposed Amendments without tendering your Normal ITS by following the procedures described below under “— Procedures for Providing Consent without Tendering.”
 
Payment of the Consent Fee
 
If the requisite Consents are received and the Proposed Amendments become operative, we will pay each holder of Normal ITS that validly delivers and does not validly revoke Consents in respect of such Normal ITS without also tendering its Normal ITS into the Exchange Offer the Consent Fee of $1.25 for each Normal ITS for which a Consent is properly received and not properly withdrawn at or prior to the Expiration Date. The Consent Fee is equal to 0.125% of the liquidation amount of each Normal ITS. However, any such holder will not receive the Depositary Shares to be issued in the Exchange Offer and may only receive the Consent Fee.
 
Holders of Normal ITS who do tender their Normal ITS in the Exchange Offer will be required to, and will be deemed to have, validly delivered their Consents to the Proposed Amendments with respect to the liquidation amount of Normal ITS so tendered. If the Exchange Offer is consummated, such holders will


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receive one Depositary Share for each Normal ITS accepted by us for exchange, and they will not receive the Consent Fee or any other separate consideration for their Consent. If, however, proration occurs, you will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration, but you will still be deemed to have delivered a Consent to the Proposed Amendments with respect to all such Normal ITS.
 
Effectiveness of the Proposed Amendments
 
If sufficient Consents are received as provided above and not properly revoked at or prior to the Expiration Date, the Proposed Amendments will become operative with respect to the Normal ITS, the Trust Agreement and the Underlying Notes upon receipt by the Trust and the Indenture trustee of such Consents and the execution and delivery of the amendments to the Trust Agreement, Indenture and related documents.
 
Conditions of the Exchange Offer
 
We will not be required to accept for exchange or to issue Depositary Shares in respect of any Normal ITS tendered pursuant to the Exchange Offer, and we may terminate, extend or amend the Exchange Offer and, subject to Rule 14e-1 under the Exchange Act, may postpone the acceptance for exchange of, and issuance of Preferred Stock in respect of, any Normal ITS so tendered in the Exchange Offer, unless each of the following conditions are satisfied or waived at or prior to the Expiration Date:
 
  •  there shall not have been any change or development that in our reasonable judgment materially reduces the anticipated benefits to us of the Exchange Offer or that has had, or could reasonably be expected to have, a material adverse effect on us, our businesses, condition (financial or otherwise) or prospects;
 
  •  there shall not have been instituted or threatened in writing any action, proceeding or investigation by or before any governmental authority, including any court, governmental, regulatory or administrative branch or agency, tribunal or instrumentality (including the Federal Reserve), that relates in any manner to the Exchange Offer and that in our reasonable judgment makes it advisable to us to terminate the Exchange Offer;
 
  •  there shall not have occurred:
 
  •  any general suspension of or limitation on prices for trading in securities in the United States securities or financial markets;
 
  •  a declaration of a banking moratorium or any suspension of payments with respect to banks in the United States;
 
  •  a commencement or significant worsening of a war or armed hostilities or other national or international calamity, including but not limited to, catastrophic terrorist attacks against the United States or its citizens;
 
  •  the registration statement of which this Prospectus and Consent Solicitation Statement forms a part shall have been declared effective by the SEC, no stop order suspending its effectiveness shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to our knowledge, shall be contemplated or threatened by the SEC (which condition cannot be waived by us); and
 
  •  the continued listing of Normal ITS that will remain outstanding after the Exchange Offer on the New York Stock Exchange has not been revoked (which condition cannot be waived by us).
 
Moreover, acceptance of the Normal ITS for exchange is subject to the condition that the Proposed Amendments shall have become operative. The Proposed Amendments will only become operative if we receive valid Consents from holders of at least a majority in aggregate liquidation amount of the outstanding Normal ITS (which corresponds to at least a majority of the outstanding Normal ITS).


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The New York Stock Exchange will consider de-listing the outstanding Normal ITS if (1) the aggregate market value of the Normal ITS is less than $4 million (which would occur if greater than 99% of the outstanding Normal ITS were tendered into the Exchange Offer, based on the $1,000 liquidation amount per Normal ITS) or (2) for any other reason based on the suitability for the continued listing of the Normal ITS in light of all pertinent facts as determined by the New York Stock Exchange. In the event that a significant number of holders tender their Normal ITS or a significant number of the Normal ITS are tendered in the Exchange Offer such that we believe there is any likelihood that the Normal ITS could be de-listed from the New York Stock Exchange, we may accept less than the total number of Normal ITS tendered, and prorate the number of Normal ITS validly tendered by each holder that we accept for exchange, in order to ensure that the Normal ITS continue to be listed on the New York Stock Exchange. Therefore, while we are making this Exchange Offer for up to 1,250,000 Normal ITS, we may not accept all of the tendered Normal ITS if doing so may result in the de-listing of the Normal ITS. If the Normal ITS are likely to be de-listed, we will prorate the Exchange Offer to ensure that the Normal ITS remain listed on the New York Stock Exchange.
 
In the event that we terminate or withdraw the Exchange Offer at or prior to the Expiration Date or the Exchange Offer is otherwise not completed, no consideration will be paid or become payable to holders who have tendered their Normal ITS pursuant to the Exchange Offer or delivered their Consents in the Consent Solicitation. In any such event, (1) Normal ITS previously tendered pursuant to the Exchange Offer will be promptly returned to the tendering holders and (2) the Proposed Amendments will not become operative.
 
We expressly reserve the right to amend or terminate the Exchange Offer and to reject for exchange any Normal ITS not previously accepted for exchange, if any of the conditions to the Exchange Offer specified above are not satisfied. In addition, we expressly reserve the right, at any time or at various times, to waive any conditions to the Exchange Offer, in whole or in part, except the requirements that the registration statement, of which this Prospectus and Consent Solicitation Statement forms a part, be declared effective by the SEC, and that the remaining Normal ITS will continue to be listed on the New York Stock Exchange after the settlement date, which conditions we will not waive. We will give oral or written notice (with any oral notice to be promptly confirmed in writing) of any amendment, non-acceptance, termination or waiver to the Information and Exchange Agent as promptly as practicable, followed by a timely press release.
 
These conditions are for our sole benefit, and we may assert them regardless of the circumstances that may give rise to them, or (except as otherwise noted) waive them in whole or in part, at any or at various times in our sole discretion. If we fail at any time to exercise any of the foregoing rights, that failure will not constitute a waiver of such right. Each such right will be deemed an ongoing right that we may assert at any time or at various times.
 
Proration
 
It is a condition to the Exchange Offer that the Normal ITS continue to be listed on the New York Stock Exchange. Accordingly, if there is a likelihood that accepting all of the tendered Normal ITS would cause the Normal ITS to be de-listed, we will reduce the number of Normal ITS sought and accept a pro rata amount of the Normal ITS tendered in the Exchange Offer to ensure that the Normal ITS continue to be listed on the New York Stock Exchange after the consummation of the Exchange Offer. Any Normal ITS tendered but not accepted because of proration will be returned to you promptly following the Expiration Date.
 
If, for any reason, proration of tendered Normal ITS is required, we will determine the final proration factor promptly after the Expiration Date of the Exchange Offer. Proration for each holder validly tendering Normal ITS will be based on the ratio of the number of Normal ITS validly tendered by the holder to the total number of Normal ITS validly tendered by all holders. This ratio will be applied to holders tendering Normal ITS to determine the number of Normal ITS, rounded up or down as nearly as practicable to the nearest whole Normal ITS, that will be exchanged by each holder pursuant to the Exchange Offer. We will announce this proration percentage, if it is necessary, promptly after the Expiration Date of the Exchange Offer.
 
Proration will not revoke Consents to the Proposed Amendments. Therefore, if we do not accept all of your validly tendered Normal ITS due to proration, you will still be deemed to have delivered your Consents with respect to all of your validly tendered Normal ITS, even those that are not accepted for exchange. If


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proration occurs, you will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration.
 
Expiration Date; Extension; Termination; Amendment
 
The Exchange Offer will expire at 11:59 p.m., New York City time, on June 7, 2010, unless extended or earlier terminated or withdrawn by us. You may withdraw any Normal ITS that you tender at any time at or prior to the Expiration Date (and, if not previously accepted for exchange, after the expiration of 40 business days from May 10, 2010).
 
We reserve the right to extend the period of time that the Exchange Offer and the Consent Solicitation is open, and delay acceptance for exchange of the Normal ITS validly tendered in the Exchange Offer, by giving oral or written notice to the Information and Exchange Agent and by a public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. During any such extension, (i) all Normal ITS you have previously tendered in the Exchange Offer will remain subject to the Exchange Offer and the related Consents will continue to be deemed to have been delivered, subject to your right to withdraw in accordance with the Exchange Offer, and (ii) any validly delivered Consent that is not accompanied by a tender of the related Normal ITS will continue to be validly delivered in the Consent Solicitation, subject to your right to withdraw such Consent.
 
We reserve the right, regardless of whether or not the conditions to the Exchange Offer and the Consent Solicitation have been satisfied but subject to applicable law, to terminate or withdraw the Exchange Offer or the Consent Solicitation if any condition to the Exchange Offer is not satisfied or waived by the Expiration Date or to amend it in any respect. If we terminate or amend the Exchange Offer or the Consent Solicitation, we will notify the Information and Exchange Agent by oral or written notice and will issue a timely public announcement regarding the termination or amendment.
 
In the event that we terminate or withdraw the Exchange Offer at or prior to the Expiration Date or the Exchange Offer is otherwise not completed, no consideration will be paid or become payable to holders who have tendered their Normal ITS pursuant to the Exchange Offer or delivered their Consents in the Consent Solicitation. In any such event, (1) Normal ITS previously tendered pursuant to the Exchange Offer will be promptly returned to the tendering holders and (2) the Proposed Amendments will not become operative.
 
If we make a material change in the terms of the Exchange Offer or the information concerning the Exchange Offer, or waive a material condition of the Exchange Offer, we will promptly disseminate disclosure regarding the change or waiver, and extend the Exchange Offer, if required by law, so that the Exchange Offer remains open a minimum of five business days from the date we disseminate that disclosure.
 
Without limiting the manner in which we may choose to make such announcement, we will not, unless otherwise required by applicable law, have any obligation to publish, advertise or otherwise communicate any such announcement other than by making a release to a U.S. news agency or another means of announcement that we deem appropriate.
 
Procedures for Participating in the Exchange Offer and the Consent Solicitation
 
Only a holder of Normal ITS may participate in the Exchange Offer and the Consent Solicitation. If you hold Stripped ITS or Capital ITS and would like to participate in the Exchange Offer or the Consent Solicitation, then you must recreate Normal ITS from your Stripped ITS and Capital ITS in accordance with the terms of the Trust Agreement, and then tender the recreated Normal ITS in the Exchange Offer or deliver your Consent with respect to such Normal ITS.
 
All of the Normal ITS were issued in book-entry form, and all of the Normal ITS are currently represented by one or more global certificates held for the account of DTC. If you desire to tender Normal ITS and deliver a related Consent with respect thereto, you may transfer such Normal ITS and deliver such Consent through DTC’s ATOP, following the procedures set forth below. Alternatively, you may complete and sign the accompanying Letter of Transmittal and Consent in accordance with the instructions set forth therein, have the signature thereon guaranteed, if required, and send or deliver the manually signed Letter of


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Transmittal and Consent, together with any required documents, to the Information and Exchange Agent at its address set forth in the Letter of Transmittal and Consent.
 
In accordance with the terms of the amended and restated trust agreement, voting and consensual rights of holders of Normal ITS may be exercised only by a United States person that is a beneficial owner of Normal ITS, or by a United States person acting as irrevocable agent with discretionary powers for the beneficial owner of Normal ITS that is not a United States person. A holder of Normal ITS that is not a United States person must irrevocably appoint a United States person with discretionary powers to act as their agent in order to participate in the Exchange Offer and the Consent Solicitation. In order to participate in the Exchange Offer or the Consent Solicitation, holders that are not United States persons must do so through a United States person designated to act as their agent. By participating in the Exchange Offer and the Consent Solicitation, a holder of Normal ITS will be deemed to have represented that it is a United States person or, if it is not a United States person, that it has appointed a United States person to act as such holder’s agent as set forth above.
 
How to Tender If You Are a Beneficial Owner But Not a DTC Participant
 
Any beneficial owner whose Normal ITS are held of record by a broker, dealer, commercial bank, trust company or other nominee and who wishes to tender Normal ITS or deliver related Consents with respect thereto should contact such nominee promptly and instruct such nominee to tender Normal ITS and deliver Consents on such owner’s behalf. In some cases, the nominee may request submission of such instructions on a Beneficial Owner’s Instruction Form. Please check with your nominee to determine the procedures for such form. If you hold your Normal ITS through a broker, dealer, commercial bank, trust company or other nominee, you should consider that such entity may require you to take action with respect to the Exchange Offer and the Consent Solicitation a number of days before the Expiration Date in order for such entity to tender Normal ITS and deliver Consents on your behalf at or prior to the Expiration Date.
 
How to Tender If You Are a DTC Participant
 
To participate in the offer, a DTC participant must:
 
  •  comply with the ATOP procedures of DTC described below; or
 
  •  (1) complete and sign and date the Letter of Transmittal and Consent, or a facsimile of the Letter of Transmittal and Consent; (2) have the signature on the Letter of Transmittal and Consent guaranteed if the Letter of Transmittal and Consent so requires; and (3) mail or deliver the Letter of Transmittal and Consent or facsimile thereof to the Information and Exchange Agent prior to the Expiration Date.
 
In addition, either:
 
  •  the Information and Exchange Agent must receive, prior to the Expiration Date, a properly transmitted Agent’s Message; or
 
  •  the Information and Exchange Agent must receive, prior to the Expiration Date, a timely confirmation of book-entry transfer of the Normal ITS into the Information and Exchange Agent’s account at DTC according to the procedure for book-entry transfer described below, the Letter of Transmittal and Consent and any other documents required by the Letter of Transmittal and Consent.
 
Tenders of Normal ITS pursuant to the procedures described above, and acceptance thereof by us, will constitute a binding agreement between the tendering holder and us upon the terms and subject to the conditions of the Exchange Offer and the Consent Solicitation, which agreement will be governed by, and construed in accordance with, the laws of the State of New York.
 
No documents should be sent to us, the Dealer Managers or the Information and Exchange Agent. Delivery of a Letter of Transmittal and Consent or an Agent’s Message transmitted through ATOP is at the election and risk of the person delivering or transmitting, and delivery will be deemed made only when actually received by the Information and Exchange Agent.


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By tendering Normal ITS pursuant to the Exchange Offer, you will be deemed to have agreed that the delivery and surrender of the Normal ITS is not effective, and the risk of loss of the Normal ITS does not pass to the Information and Exchange Agent, until receipt by the Information and Exchange Agent of the items listed above together with all accompanying evidences of authority and any other required documents in form satisfactory to us. In all cases, you should allow sufficient time to assure delivery to the Information and Exchange Agent at or prior to the Expiration Date.
 
By tendering Normal ITS pursuant to the Exchange Offer, you will be deemed to have made the representations and warranties set forth in the accompanying Letter of Transmittal and Consent, including that you have full power and authority to tender, sell, assign and transfer the Normal ITS tendered thereby and/or to deliver a Consent with respect thereto and that when such Normal ITS that are tendered into the Exchange Offer are accepted for purchase by us, we will acquire good title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim or right. You will also be deemed to have agreed to, upon request, execute and deliver any additional documents deemed by the Information and Exchange Agent or by us to be necessary or desirable to complete the sale, assignment and transfer of the Normal ITS tendered thereby.
 
We have not provided guaranteed delivery provisions in connection with the Exchange Offer and the Consent Solicitation. You must tender your Normal ITS and Consents in accordance with the procedures set forth herein.
 
Tendering Through DTC’s ATOP
 
The Information and Exchange Agent will establish an account at DTC with respect to the Normal ITS for purposes of the Exchange Offer and the Consent Solicitation, and any financial institution that is a DTC participant may make book-entry delivery of eligible Normal ITS by causing DTC to transfer such Normal ITS into the Information and Exchange Agent’s account in accordance with DTC’s procedures for such transfer.
 
The Information and Exchange Agent and DTC have confirmed that Normal ITS held in book-entry form through DTC that are to be tendered in the Exchange Offer are eligible for ATOP. To effectively tender Normal ITS and deliver related Consents eligible for ATOP that are held through DTC, DTC participants may, in lieu of physically completing and signing the Letter of Transmittal and Consent and delivering it to the Information and Exchange Agent, electronically transmit their acceptance through ATOP, and DTC will then verify the acceptance, execute a book-entry delivery to the Exchange Agent’s account at DTC and send an Agent’s Message to the Information and Exchange Agent for its acceptance. The confirmation of a book-entry transfer into the Information and Exchange Agent’s account at DTC as described above is referred to herein as a “Book-Entry Confirmation.” Delivery of documents to DTC does not constitute delivery to the Information and Exchange Agent.
 
The term “Agent’s Message” means a message transmitted by DTC to, and received by, the Information and Exchange Agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the DTC participant described in such Agent’s Message, stating that such participant has received and agrees to be bound by the terms and conditions of the Exchange Offer and the Consent Solicitation as set forth in this Prospectus and Consent Solicitation Statement and the accompanying Letter of Transmittal and Consent and that we may enforce such agreement against such participant.
 
If you desire to tender your Normal ITS and deliver related Consents on the Expiration Date through ATOP, you should note that you must allow sufficient time for completion of the ATOP procedures during the normal business hours of DTC on such date.
 
Signature Guarantees
 
All signatures on a Letter of Transmittal and Consent or a notice of withdrawal, as the case may be, must be guaranteed by a recognized participant in the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program (each, a “Medallion


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Signature Guarantor”) unless the Normal ITS tendered or withdrawn, as the case may be, pursuant thereto are tendered (1) by the DTC participant whose name appears on a security position listing as the owner of Normal ITS who has not completed the box entitled Special Payment Instructions or Special Delivery Instructions on the Letter of Transmittal and Consent or (2) for the account of a member firm of a registered national securities exchange, a member of Financial Industry Regulatory Authority, Inc. or a commercial bank, trust company or other nominee having an office or correspondent in the United States. If Normal ITS are registered in the name of a person other than the signer of a Letter of Transmittal and Consent or a notice of withdrawal, as the case may be, or if delivery of the Depositary Shares is to be made or tendered Normal ITS that are not accepted are to be returned to a person other than the holder, then the signature on the Letter of Transmittal and Consent accompanying the tendered Normal ITS must be guaranteed by a Medallion Signature Guarantor as described above.
 
Determination of Validity
 
All questions as to the form of all documents and the validity, form, eligibility (including time of receipt) and acceptance of all tenders and withdrawals of Normal ITS will be determined by us, the determination of which shall be final and binding absent a finding to the contrary by a court of competent jurisdiction. Alternative, conditional or contingent tenders will not be considered valid. We reserve the absolute right to reject any or all tenders of Normal ITS that are not in proper form or the acceptance of which would, in the opinion of our counsel, be unlawful or result in a breach of contract. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular Normal ITS. A waiver of any defect of irregularity with respect to the tender of one Normal ITS shall not constitute a waiver of the same or any other defect or irregularity with respect to the tender of any other Normal ITS except to the extent we may otherwise so provide. Our interpretations of the terms and conditions of the Exchange Offer and the Consent Solicitation will be final and binding. Tenders of Normal ITS shall not be deemed to have been made until any defects or irregularities have been cured or waived by the Company. None of us, the trustees, the Information and Exchange Agent, the Dealer Managers any other person will be under any duty to give notice of any defects or irregularities in tenders of Normal ITS, or will incur any liability to you for failure to give any such notice.
 
Compliance with “Short Tendering” Rule
 
It is a violation of Rule 14e-4 under the Exchange Act for a person, directly or indirectly, to tender Normal ITS for such person’s own account unless the person so tendering (1) has a net long position equal to or greater than the aggregate principal amount of the Normal ITS being tendered and (2) will cause such Normal ITS to be delivered in accordance with the terms of the Exchange Offer. Rule 14e-4 provides a similar restriction applicable to the tender or guarantee of a tender on behalf of another person.
 
A tender of Normal ITS in response to the Exchange Offer and the Consent Solicitation under any of the procedures described above will constitute a binding agreement between the tendering holder and us with respect to the Exchange Offer and the Consent Solicitation upon the terms and subject to the conditions of the Exchange Offer and the Consent Solicitation, including the tendering holder’s acceptance of the terms and conditions of the Exchange Offer and the Consent Solicitation, as well as the tendering holder’s representation and warranty that (1) such holder has a net long position in the Normal ITS being tendered pursuant to the Exchange Offer within the meaning of Rule 14e-4 under the Exchange Act and (2) the tender of such Normal ITS complies with Rule 14e-4.
 
Procedures for Providing Consent without Tendering
 
All Letters of Transmittal and Consent that are properly executed and received by the Information and Exchange Agent at or prior to the Expiration Date and not timely revoked will be given effect in accordance with the terms thereof.
 
Holders, and any beneficial owner whose Normal ITS are held of record by a broker, dealer, commercial bank or other nominee, who wish to provide a Consent should so indicate by signing and dating a Letter of


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Transmittal and Consent, including marking the applicable box under the heading “Tender of Normal ITS and Delivery of Consents” stating that such holder is delivering Consents without otherwise tendering related Normal ITS, and delivering it to the Information and Exchange Agent in accordance with the instructions contained herein and therein, have the signatures guaranteed, if required, in accordance with the instructions set forth therein. See the section above entitled “— Procedures for Participating in the Exchange Offer and the Consent Solicitation — Signature Guarantees.” Delivery of Letters of Transmittal and Consent should be made sufficiently in advance of the Expiration Date to assure that the Letter of Transmittal and Consent is received prior to the Expiration Date.
 
The Letter of Transmittal and Consent must be completed in exactly the same names and addresses of the holders as they appear on a security position listing with a DTC participant as the owner of the Normal ITS.
 
If a Consent relates to fewer than all the Normal ITS held of record as of the Record Date by the person providing such Consent, such person must indicate on the Letter of Transmittal and Consent the aggregate dollar amount (in integral multiples of $1,000) of such Normal ITS to which the Consent relates. Otherwise, the Consent will be deemed to relate to all such Normal ITS held by such consenting holder.
 
We reserve the right to receive Letters of Transmittal and Consent by any other reasonable means or in any form that reasonably evidences the giving of Consent.
 
All questions as to the as to the form of all documents and the validity, form, eligibility (including time of receipt) and acceptance of Consents and revocations of Consents will be resolved by us and such determinations shall be final and binding absent a finding to the contrary by a court of competent jurisdiction. Alternative, conditional or contingent Consents will not be considered valid. We reserve the absolute right to reject any or all Consents that are not in proper form or the acceptance of which could, in the opinion of our counsel, be unlawful or result in a breach of contract. We also reserve the right to waive any defects, irregularities or conditions to Consents as to Normal ITS. A waiver of any such defect or irregularity with respect to the Consent in respect of one of the Normal ITS shall not constitute a waiver of the same or any other defect or irregularity with respect the Consents in respect of any other Normal ITS, except to the extent we may otherwise so provide. Our interpretations of the terms and conditions of the Exchange Offer and the Consent Solicitation, including the instructions in the accompanying Letter of Transmittal and Consent, will be final and binding. No Consents as to any Normal ITS will be deemed to have been validly made until all defects or irregularities with respect to such Normal ITS have been cured or waived by us. All consenting holders, by execution of the accompanying Letter of Transmittal and Consent or a facsimile hereof, waive any right to receive notice of the acceptance of their Consents. None of us, the trustees, the Information and Exchange Agent or any other person will be under any duty to give notice of any defects or irregularities in Consents, or will incur any liability for failure to give any such notice.
 
Acceptance of Normal ITS for Purchase; Delivery of Depositary Shares
 
Upon the terms and subject to the conditions of the Exchange Offer, including the possible proration discussed above under “— Proration,” we will accept for exchange and promptly deliver on the settlement date, Depositary Shares representing interests in Preferred Stock in exchange for validly tendered Normal ITS that were not validly withdrawn pursuant to the Exchange Offer.
 
For purposes of the Exchange Offer, we will be deemed to have accepted Normal ITS for exchange if, as and when we give oral (promptly confirmed in writing) or written notice thereof to the Information and Exchange Agent.
 
With respect to tendered Normal ITS that are to be returned to holders, such Normal ITS will be credited to the account maintained at DTC from which such Normal ITS were delivered, returned in accordance with such procedures after the expiration or termination of the Exchange Offer, unless other instructions were given by the holder in the Letter of Transmittal and Consent or to the book-entry transfer facility.
 
We will deliver Depositary Shares in exchange for and pay accrued distributions on Normal ITS accepted for exchange in the Exchange Offer by issuing the Depositary Shares and paying such accrued distributions on the settlement date to the Information and Exchange Agent, which will act as your agent for the purpose of


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receiving the Depositary Shares and accrued distributions and transmitting the Depositary Shares and accrued distributions to you. We will similarly pay Consent Fees with respect to the liquidation amount of Normal ITS as to which a Consent was delivered in the Consent Solicitation without an accompanying tender of Normal ITS (or with respect to the liquidation amount of any Normal ITS that were not accepted for exchange in the Exchange Offer due to proration as described above under “— Proration”) by paying such Consent Fees on the settlement date to the Information and Exchange Agent, which will act as your agent for the purpose of receiving the Consent Fees and transmitting the Consent Fees to you. Tendering holders of the Normal ITS, or holders who wish to deliver a separate Consent, as the case may be, should indicate in the applicable box in the Letter of Transmittal and Consent or, if applicable, to the book-entry transfer facility in the case of holders who electronically transmit their acceptance through ATOP, the name and address to which delivery of the Depositary Shares and payment of accrued distributions on the Normal ITS accepted for exchange or Consent Fees, as the case may be, is to be sent, if different from the name and address of the person signing the Letter of Transmittal and Consent or transmitting such acceptance through ATOP.
 
We expressly reserve the right, subject to applicable law, to (1) delay acceptance for exchange of Normal ITS tendered under any of the Exchange Offer or the delivery of Depositary Shares in exchange for the Normal ITS accepted for purchase (subject to Rule 14e-1 under the Exchange Act, which requires that we pay the consideration offered or return the Normal ITS deposited by or on behalf of the holders promptly after the termination or withdrawal of any of the Exchange Offer) or (2) terminate or withdraw the Exchange Offer at any time.
 
If, for any reason, acceptance for exchange of validly tendered Normal ITS pursuant to the Exchange Offer is delayed, or we are unable to accept for exchange validly tendered Normal ITS pursuant to the Exchange Offer, then the Exchange Agent may, nevertheless, on behalf of us, retain (subject to Rule 14e-1 under the Exchange Act described above) tendered Normal ITS, without prejudice to our rights described above under the sections entitled “— Expiration Date; Extension; Termination; Amendment” and “— Conditions of the Exchange Offer” and the section below entitled “— Withdrawal of Tenders.”
 
We reserve the right to transfer or assign, in whole or from time to time in part, to one or more of our affiliates or any third party the right to exchange all or any of the Normal ITS tendered pursuant to the Exchange Offer for the Preferred Stock and accrued distributions due with respect to the Normal ITS, but any such transfer or assignment will not relieve us of our obligations under the Exchange Offer and will in no way prejudice your rights to receive the Preferred Stock and accrued distributions on Normal ITS validly tendered and not validly withdrawn and accepted for payment pursuant to the Exchange Offer as provided for herein.
 
You will not be obliged to pay brokerage commissions or fees to the Dealer Managers, the Exchange Agent, the Information Agent or us with respect to the Exchange Offer.
 
We will pay all transfer taxes applicable to the purchase and transfer of Normal ITS pursuant to the Exchange Offer, except if the delivery of the Depositary Shares and payment of any Consent Fee and/or accrued distributions is being made to, or if Normal ITS not tendered or not accepted for payment are registered in the name of, any person other than the holder of Normal ITS tendered thereby or Normal ITS are credited in the name of any person other than the person(s) signing the accompanying Letter of Transmittal and Consent or electronically transmitting acceptance through ATOP, as applicable; then, in such event, delivery and payment shall not be made unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted.
 
We will not be liable for any interest as a result of a delay by the Exchange Agent or DTC in distributing the consideration for the Exchange Offer or the Consent Solicitation.
 
Withdrawal of Tenders
 
You may withdraw your tender of Normal ITS at any time at or prior to the Expiration Date. You may only withdraw your tender of Normal ITS after the Expiration Date as permitted by law.


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For a withdrawal of a tender of Normal ITS to be effective, a written or facsimile transmission notice of withdrawal must be received by the Exchange Agent at or prior to the Expiration Date, by mail, fax or hand delivery or by a properly transmitted “Request Message” through ATOP. Any such notice of withdrawal must:
 
  •  specify the name of the person who tendered the Normal ITS to be withdrawn and the name of the DTC participant whose name appears on the security position listing as the owner of such Normal ITS, if different from that of the person who deposited the Normal ITS;
 
  •  contain the aggregate number of Normal ITS to be withdrawn;
 
  •  unless transmitted through ATOP, be signed by the holder thereof in the same manner as the original signature on the Letter of Transmittal and Consent, including any required signature guarantee(s); and
 
  •  if the Letter of Transmittal and Consent was executed by a person other than the DTC participant whose name appears on a security position listing as the owner of Normal ITS, be accompanied by a properly completed irrevocable proxy that authorized such person to effect such withdrawal on behalf of such holder.
 
Withdrawal of previously tendered Normal ITS can only be accomplished in accordance with the foregoing procedures.
 
Holders may not rescind their valid withdrawals of tendered Normal ITS. However, Normal ITS that have been validly withdrawn may thereafter be retendered at any time at or prior to the Expiration Date by following the procedures described above under “— Procedures for Participating in the Exchange Offer and the Consent Solicitation.”
 
All questions as to the form and validity (including time of receipt) of any notice of withdrawal of a tender will be determined by us, which determination shall be final and binding. We reserve the absolute right to reject any or all attempted withdrawals of Normal ITS that are not in proper form or the acceptance of which would, in our opinion, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of a withdrawal as to particular Normal ITS. A waiver of any defect or irregularity with respect to the withdrawal of one Normal ITS shall not constitute a waiver of the same or any other defect or irregularity with respect to the withdrawal of any other Normal ITS except to the extent we may otherwise so provide. Withdrawals of Normal ITS shall not be deemed to have been made until any defects or irregularities have been waived by us or cured. None of us, the trustee, the Information and Exchange Agent, the Dealer Managers or any other person will be under any duty to give notification of any defect or irregularity in any notice of withdrawal of a tender or incur any liability for failure to give any such notification.
 
Withdrawal of Consents with Respect to Normal ITS that were not Tendered
 
If you have not tendered any Normal ITS but have Consented to the Proposed Amendments, you may revoke such Consents by sending a written notice of revocation at any time at or prior to the Expiration Date. Any notice of revocation received after the Expiration Date will not be effective. The delivery of Consents by a holder (or its nominee) will bind the holder (or its nominee) and every subsequent holder of such Normal ITS or portion of such Normal ITS, even if notation of the Consents is not made on such Normal ITS.
 
To be effective, a notice of revocation must be given by properly completed and executed notice of withdrawal accompanying the Letter of Transmittal and Consent. All revocations of Consents must be sent to the Information and Exchange Agent at its address set forth in the accompanying Letter of Transmittal and Consent.
 
Holders may not rescind revocations of Consents. However, a holder may deliver a new Consent by delivering a new Letter of Transmittal and Consent or by retendering Normal ITS through ATOP at any time on or prior to the Expiration Date.
 
Prior to the Expiration Date, we intend to consult with the Information and Exchange Agent to determine whether the Information and Exchange Agent has received any revocations of Consents. We reserve the right to contest the validity of any purported revocations.


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Return of Unaccepted Normal ITS
 
Any tendered Normal ITS that are not accepted for exchange will be returned without expense to the tendering holder. Such Normal ITS will be credited to the account maintained at DTC from which they were delivered and returned promptly after the expiration or termination of the Exchange Offer.
 
Security Ownership
 
Neither we nor, to the best of our knowledge, any of our executive officers, directors, affiliates or subsidiaries nor, to the best of our knowledge, any of our subsidiaries’ directors or executive officers, nor any associates or subsidiaries of any of the foregoing, (1) owns any Normal ITS or (2) has effected any transactions involving the Normal ITS during the 60 days prior to the date of this Prospectus and Consent Solicitation Statement.
 
Consequences of Failure to Exchange Normal ITS
 
Depending on the amount of Normal ITS that are accepted for exchange in the Exchange Offer, the trading market for the Normal ITS that remain outstanding after the Exchange Offer may be significantly more limited. A reduced trading volume may decrease the price and increase the volatility of the trading price of the Normal ITS that remain outstanding following the Exchange Offer. See “Risk Factors.”
 
Following the completion of the Exchange Offer and the Consent Solicitation, and the effectiveness of the Proposed Amendments, (1) the Trust will retire the Normal ITS we acquire in the Exchange Offer, (2) the corresponding Underlying Notes will be transferred to us by the Trust and surrendered by us to the Indenture trustee for cancellation and (3) the corresponding stock purchase contracts will be terminated in connection with the delivery of Depositary Shares to the exchanging holders of Normal ITS in the Exchange Offer and in exchange for a portion of the Underlying Notes. We currently expect to continue making distributions on the Normal ITS that are not acquired by us in the Exchange Offer in accordance with their terms.
 
No Appraisal Rights
 
No appraisal or dissenters’ rights are available to holders of Normal ITS under applicable law in connection with the Exchange Offer.
 
Accounting Treatment
 
With respect to Normal ITS exchanged for Depositary Shares, once we exchange the Normal ITS that we obtain through this Exchange Offer for the applicable like amount of Underlying Notes, we will derecognize the carrying amount of the Underlying Notes, which we currently record as long-term debt. The Preferred Stock represented by the Depositary Shares issued will be recorded at its par amount. The excess of the Preferred Stock’s fair value over their par amount will be recorded in capital surplus. The excess of the net carrying amount of the Underlying Notes exchanged over the fair value of the stock purchase contracts and the Preferred Stock issued will be recorded in the current earnings of the period during which the transaction will occur.
 
Subsequent Repurchases
 
Following completion of the Exchange Offer, we may repurchase additional Normal ITS in the open market, in privately negotiated transactions or otherwise. Future purchases of Normal ITS may be on terms that are more or less favorable than those of the Exchange Offer. Future repurchases, if any, will depend on many factors, including market conditions and the condition of our business.
 
Information and Exchange Agent
 
D.F. King & Co., Inc. will serve as the Exchange Agent for the Exchange Offer. Letters of Transmittal and Consent and all correspondence in connection with the Exchange Offer and the Consent Solicitation should be sent or delivered by each holder of Normal ITS, or a beneficial owner’s bank, broker, custodian or


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other nominee, to the Exchange Agent at the address listed on the back cover page of this Prospectus and Consent Solicitation Statement.
 
D.F. King & Co., Inc. will also serve as the Information Agent for the Exchange Offer and the Consent Solicitation. Questions concerning tender procedures or consent procedures and requests for additional copies of this Prospectus and Consent Solicitation Statement or the Letter of Transmittal and Consent should be directed to the Information Agent at its address and telephone number listed on the back cover page of this Prospectus and Consent Solicitation Statement. Holders of Normal ITS may also contact their bank, broker, custodian or other nominee concerning the Exchange Offer and the Consent Solicitation.
 
We will pay the Information and Exchange Agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses.
 
Dealer Managers
 
Deutsche Bank Securities Inc. is acting as lead dealer manager, lead solicitation agent and structuring advisor, and U.S. Bancorp Investments, Inc. is acting as co-dealer manager and co-solicitation agent, for the Exchange Offer and the Consent Solicitation. In such capacity, the Dealer Managers will perform services customarily provided by investment banking firms acting as dealer manager of exchange offers of a like nature, including soliciting tenders of Normal ITS pursuant to the Exchange Offer and the Consent Solicitation and communicating generally regarding the Exchange Offer and the Consent Solicitation with banks, brokers, custodians, nominees and other persons, including holders of Normal ITS. We will pay the Dealer Managers reasonable and customary fees for their services and will reimburse them for their reasonable out-of-pocket expenses. We have also agreed to indemnify the Dealer Managers and their respective affiliates against certain liabilities in connection with their services, including liabilities under the federal securities laws.
 
At any given time, the Dealer Managers may trade in the Normal ITS or other of our securities for their own account or for the accounts of customers, and accordingly, may hold a long or a short position in the Normal ITS or such other securities. To the extent that the Dealer Managers or their respective affiliates own Normal ITS during the Exchange Offers and the Consent Solicitation, they may tender such Normal ITS pursuant to the terms of the Exchange Offer or alternatively deliver Consents with respect to such Normal ITS pursuant to the terms of the Consent Solicitation.
 
The Dealer Managers have provided in the past and/or is currently providing other investment and commercial banking and financial advisory services to us. The Dealer Managers and their respective affiliates may in the future provide various investment and commercial banking and other services to us for which they would receive customary compensation.
 
Conflicts of Interest
 
Because U.S. Bancorp Investments, Inc. is our affiliate, the Exchange Offer is being conducted in compliance with the NASD Rule 2720, as administered by FINRA. Pursuant to that rule, the appointment of a qualified independent underwriter is not necessary in connection with this offering, as the offering is of a class of securities rated Baa3 or better by Moody’s rating service or BBB- or better by Standard & Poor’s rating service or rated in a comparable category by another rating service acceptable to FINRA.
 
Brokerage Commissions
 
Holders that tender their Normal ITS to the Exchange Agent do not have to pay a brokerage fee or commission to us or the Exchange Agent. However, if a tendering holder handles the transaction through its bank, broker, custodian or nominee, that holder may be required to pay that bank, broker, custodian or nominee brokerage fees or commissions.
 
Fees and Expenses
 
We will bear the expenses of soliciting tenders of Normal ITS and Consents with respect thereto. The principal solicitation is being made by mail. Additional solicitation may, however, be made by e-mail,


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facsimile transmission or telephone or in person by our officers and other employees and those of our affiliates and others acting on our behalf.
 
No Recommendation
 
None of us, the trustees of the Trust, the Dealer Managers or the Information and Exchange Agent are making a recommendation as to whether you should exchange your Normal ITS in the Exchange Offer or Consent to the Proposed Amendments. We have not retained, and do not intend to retain, any unaffiliated representative to act on behalf of the holders of the Normal ITS for purposes of negotiating the Exchange Offer and the Consent Solicitation or preparing a report concerning the fairness of the Exchange Offer and the Consent Solicitation. The value of the Depositary Shares issued in the Exchange Offer may not equal or exceed the value of the Normal ITS tendered. You must make your own independent decision regarding your participation in the Exchange Offer and the Consent Solicitation.
 
Certain Matters Relating to Non-U.S. Jurisdictions
 
Although we will mail this Prospectus and Consent Solicitation Statement to holders of the Normal ITS to the extent required by U.S. law, this Prospectus and Consent Solicitation Statement is not an offer to sell or exchange and it is not a solicitation of an offer to buy or exchange securities in any jurisdiction in which such offer, sale, purchase or exchange is not permitted. Countries outside the United States generally have their own legal requirements that govern securities offerings made to persons resident in those countries and often impose stringent requirements about the form and content of offers made to the general public. We have not taken any action under those non-U.S. regulations to facilitate a public offer to exchange outside the United States. Therefore, the ability of any non-U.S. person to tender Normal ITS in the Exchange Offer will depend on whether there is an exemption available under the laws of such person’s home country that would permit the person to participate in the Exchange Offer without the need for us to take any action to facilitate a public offering in that country or otherwise. For example, some countries exempt transactions from the rules governing public offerings if they involve persons who meet certain eligibility requirements relating to their status as sophisticated or professional investors. Non-U.S. holders should consult their advisors in considering whether they may participate in the Exchange Offer in accordance with the laws of their home countries and, if they do participate, whether there are any restrictions or limitations on transactions in the Preferred Stock that may apply in their home countries. Neither we nor the Dealer Managers can provide any assurance about whether such limitations may exist. By signing or being deemed to sign the accompanying Letter of Transmittal and Consent or tendering your Normal ITS through ATOP, you are representing that if you are located outside the United States the offer to you and your acceptance of it does not contravene the applicable laws where you are located.


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DESCRIPTION OF PREFERRED STOCK
 
The following section is a summary and does not describe every aspect of the Preferred Stock. In particular, we urge you to read our certificate of incorporation, as it describes the rights of holders of the Preferred Stock. We have filed our certificate of incorporation as an exhibit to the registration statement that we have filed with the SEC, of which this Prospectus and Consent Solicitation Statement forms a part. An amended certificate of designations reflecting the terms of the Preferred Stock, including the amended terms described below, will be filed by pre-effective amendment to the registration statement of which this Prospectus and Consent Solicitation Statement forms a part.
 
Authorized Preferred Stock
 
We are authorized to issue up to 50,000,000 shares of preferred stock, par value $1.00 per share (including the Preferred Stock represented by the Depositary Shares offered hereby). U.S. Bancorp has filed a certificate of designation designating the terms of the Preferred Stock with the Secretary of State of the State of Delaware. We will amend the existing terms of the Preferred Stock in connection with the Exchange Offer in order to provide holders with voting rights described below under “— Voting Rights” as well as to provide that dividends on the Preferred Stock will accrue at a rate of 7.189% per annum until the later of April 15, 2011 and the Stock Purchase Date, as described below under “— Dividends.” On March 27, 2006, we issued depositary shares representing an ownership interest in 40,000 shares of Series B Preferred Stock, and on March 17, 2008, we issued depositary shares representing an ownership interest in 20,000 shares of Series D Preferred Stock. The Series B Preferred Stock and Series D Preferred Stock have no stated maturity and are not subject to any sinking fund or other obligation for their repurchase or investment. Dividends, if declared, will accrue and be payable quarterly, in arrears, at a rate per annum equal to the greater of Three-Month LIBOR plus 0.60%, or 3.50% on the Series B Preferred Stock, and 7.875% per annum on the Series D Preferred Stock. Both series are redeemable at our option, subject to the prior approval of the Federal Reserve Board.
 
General
 
The depositary will be the sole holder of the Preferred Stock, as described below under the section entitled “Description of Depositary Shares,” and all references in this Prospectus and Consent Solicitation Statement to the holders of the Preferred Stock shall mean the depositary. However, the holders of Depositary Shares will be entitled, through the depositary, to exercise the rights and preferences of the holders of the Preferred Stock, as described below under the section entitled “Description of Depositary Shares.” When issued, the Preferred Stock will be validly issued, fully paid, and non-assessable. The holders of the Preferred Stock will have no preemptive rights with respect to any shares of our capital stock or any of its other securities convertible into or carrying rights or options to purchase any such capital stock.
 
The holders of Preferred Stock will be entitled to receive non-cumulative cash dividends when, as and if declared out of assets legally available for payment in respect of such Preferred Stock by our board of directors in its sole discretion. In the event we do not declare dividends or do not pay dividends in full on the Preferred Stock on any date on which dividends are due, then such unpaid dividends will not cumulate and will no longer accrue and be payable.
 
When issued, the Preferred Stock will have a fixed liquidation preference, or “Liquidation Preference,” of $100,000 per share, or up to $1,250,000,000 in the aggregate. On our liquidation, dissolution or winding up of affairs, holders of Preferred Stock will be entitled to receive such Liquidation Preference per share, together with an amount equal to all accrued and unpaid dividends for the then-current dividend period to the date of payment. The Preferred Stock is perpetual and will not be convertible into shares of our common stock or any other class or series of its capital stock, and will not be subject to any sinking fund or other obligation for their repurchase or retirement.
 
We will issue Depositary Shares to tendering holders of Normal ITS in connection with the Exchange Offer. We may also issue Preferred Stock to the Trust on the Stock Purchase Date.


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Rank
 
The Preferred Stock will rank senior to our common stock and to any other securities that we may issue in the future that are subordinate to the Preferred Stock. As of the date hereof, there are no shares of our authorized preferred stock that would rank senior to the Preferred Stock authorized, issued or outstanding. The Preferred Stock will rank on a parity with the Series B Preferred Stock and the Series D Preferred Stock. We may authorize and issue additional shares of preferred stock that may rank junior to, on parity with or senior to the Preferred Stock as to dividend rights and rights upon liquidation, winding up or dissolution without the consent of the holders of the Preferred Stock. Each series of our authorized preferred stock will, with respect to dividend rights and rights upon our liquidation, dissolution or winding up, rank prior or superior to common stock. All shares of each series of our authorized preferred stock will be of equal rank with each other. The Preferred Stock and any other series of preferred stock will rank equal or junior to, but not prior or superior to, any series of preferred stock.
 
With respect to the payment of dividends and amounts upon liquidation, the Preferred Stock will rank equally with any other class or series of our capital stock that ranks on a par with the Preferred Stock in the payment of dividends and in the distribution of assets on our liquidation, dissolution or winding up, if any, or “Parity Stock,” and will rank senior to our common stock and any other class or series of our stock over which the Preferred Stock has preference or priority in the payment of dividends or in the distribution of assets on our liquidation, dissolution or winding up, or “Junior Stock.” In particular, during a Dividend Period, no dividend will be paid or declared and no distribution will be made on any Junior Stock, other than a dividend payable solely in Junior Stock, no shares of Junior Stock shall be repurchased, redeemed or otherwise acquired for consideration by us, directly or indirectly (other than as a result of reclassification of Junior Stock for or into Junior Stock, or the exchange or conversion of one share of Junior Stock for or into another share of Junior Stock, and other than through the use of the proceeds of a substantially contemporaneous sale of other shares of Junior Stock), nor shall any monies be paid to or made available for a sinking fund for the redemption of any such securities by us, and no shares of Parity Stock shall be purchased, redeemed or otherwise acquired for consideration by us otherwise than pursuant to pro rata offers to purchase all, or a pro rata portion, of the Preferred Stock and such Parity Stock except by conversion into or exchange for Junior Stock, unless full dividends for such Dividend Period on all outstanding shares of Preferred Stock have been paid or declared and a sum sufficient for the payment thereof set aside.
 
For any Dividend Period in which dividends are not paid in full upon the Preferred Stock and other Parity Stock having the same restrictions on the declaration and payment of dividends as the Preferred Stock, all dividends declared for such Dividend Period with respect to the Preferred Stock and such other Parity Stock shall be declared on a pro rata basis.
 
Dividends
 
Dividends on shares of the Preferred Stock will not be mandatory. Holders of the Preferred Stock will be entitled to receive, if, when and as declared by our board of directors out of legally available assets, non-cumulative cash dividends on the Liquidation Preference, which is $100,000 per share of Preferred Stock. These dividends will be payable on the following dates, or “Dividend Payment Dates”: (1) from the settlement date of the Exchange Offer to the later of April 15, 2011 and the Stock Purchase Date, semi-annually in arrears on each April 15 and October 15 through the later of April 15, 2011 and (i) the Stock Purchase Date (if the Stock Purchase Date is also a Dividend Payment Date) or (ii) the Dividend Payment Date immediately preceding the Stock Purchase Date (if the Stock Purchase Date is not a Dividend Payment Date), and (2) from and including the later of April 15, 2011 and the Stock Purchase Date, quarterly in arrears on each January 15, April 15, July 15 or October 15 (or, in the case of this clause (2) if such day is not a business day, the next business day). If any portion of a declared semi-annual dividend payment has accrued but has not been paid as of the Stock Purchase Date, such accrued amount shall be paid on the Stock Purchase Date. We refer to the period from and including the date of issuance of the Preferred Stock or any Dividend Payment Date to but excluding the next Dividend Payment Date as a “Dividend Period.” Dividends on each share of Preferred Stock will accrue on the liquidation preference of $100,000 per share (1) from the date of issuance to but not including the later of the Dividend Payment Date in April 2011 and the Stock Purchase Date at a


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rate per annum equal to 7.189% and (2) thereafter for each related Dividend Period at a rate per annum equal to the greater of (i) Three-Month LIBOR plus 1.02% or (ii) 3.50%. In the case that any date on which dividends are payable on the Preferred Stock is not a business day, then payment of the dividend payable on that date will be made on the next succeeding day that is a business day. However, no interest or other payment shall be paid in respect of the delay. The record date for payment of dividends on the Preferred Stock will be the last day of the immediately preceding calendar month during which the Dividend Payment Date falls. The amount of dividends payable for any Dividend Period prior to the later of April 15, 2011 and the Stock Purchase Date will be calculated on the basis of a 360-day year consisting of twelve 30-day months and dividends for periods beginning on or after such date will be calculated on the basis of a 360-day year and the number of days actually elapsed.
 
“Three-Month LIBOR” means, with respect to any Dividend Period beginning on or after the later of April 15, 2011 and the Stock Purchase Date, the rate (expressed as a percentage per annum) for deposits in U.S. dollars for a three-month period commencing on the first day of that Dividend Period that appears on Reuters Screen LIBOR01 Page as of 11:00 a.m. (London time) on the second London Banking Day preceding the first day of that Dividend Period. If the rate described above does not appear on Reuters Screen LIBOR01, Three-Month LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars for a three-month period commencing on the first day of that Dividend Period and in a principal amount of not less than $1,000,000 are offered to prime banks in the London interbank market by four major banks in the London interbank market selected by us, at approximately 11:00 a.m., London time, on the second London Banking Day preceding the first day of that Dividend Period. U.S. Bank National Association, as Calculation Agent for the Preferred Stock, will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, Three-Month LIBOR with respect to that Dividend Period will be the arithmetic mean (rounded upward if necessary to the nearest .00001 of 1%) of such quotations. If fewer than two quotations are provided, Three-Month LIBOR with respect to that Dividend Period will be the arithmetic mean (rounded upward if necessary to the nearest .00001 of 1%) of the rates quoted by three major banks in New York, New York, selected by the Calculation Agent, at approximately 11:00 a.m., New York City time, on the first day of that Dividend Period for loans in U.S. dollars to leading European banks for a three-month period commencing on the first day of that Dividend Period and in a principal amount of not less than $1,000,000. However, if the banks selected by the Calculation Agent to provide quotations are not quoting as described above, Three-Month LIBOR for that Dividend Period will be the same as Three-Month LIBOR as determined for the previous Dividend Period, or in the case of the first Dividend Period, the most recent rate that could have been determined in accordance with the first sentence of this paragraph had the Preferred Stock been outstanding. The calculation agent’s establishment of Three-Month LIBOR and calculation of the amount of dividends for each Dividend Period will be on file at our principal offices, will be made available to any holder of Preferred Stock upon request and will be final and binding in the absence of manifest error.
 
“London Banking Day” means any day on which commercial banks are open for general business (including dealings in deposits in U.S. dollars) in London.
 
“Reuters Screen LIBOR01 Page” means the display designated on the Reuters 3000 Xtra (or such other page as may replace that page on that service or such other service as may be nominated by the British Bankers’ Association for the purpose of displaying London interbank offered rates for U.S. dollar deposits).
 
The right of holders of the Preferred Stock to receive dividends is non-cumulative. If our board of directors does not declare a dividend on the Preferred Stock or declares less than a full dividend in respect of any Dividend Period, the holders of the Preferred Stock will have no right to receive any dividend or a full dividend, as the case may be, for that Dividend Period, and we will have no obligation to pay a dividend or to pay full dividends for that Dividend Period, whether or not dividends are declared and paid for any future Dividend Period with respect to the Preferred Stock, Parity Stock, Junior Stock or any other class or series of our authorized preferred stock.
 
When dividends are not paid in full upon the Preferred Stock and any other Parity Stock, dividends upon that stock will be declared on a proportional basis so that the amount of dividends declared per share will bear


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to each other the same ratio that accrued dividends for the current Dividend Period per share on the Preferred Stock, and accrued dividends, including any accumulations on such Parity Stock, bear to each other. No interest will be payable in respect of any dividend payment on the Preferred Stock that may be in arrears. If we determine not to pay any dividend or a full dividend, we will provide prior written notice to the property trustee, who will notify holders of Normal ITS and Stripped ITS, if then outstanding, and the administrative trustees.
 
We have agreed not to make any payment of principal of or interest on, repay or redeem any debt securities ranking pari passu or junior to the junior subordinated debentures issued under various indentures if, at that time, there is a default under the applicable indenture or we have delayed interest payments thereon. Currently, there is approximately $4.6 billion aggregate principal amount of junior subordinated debentures outstanding under these indentures.
 
We are subject to various general regulatory policies and requirements relating to the payment of dividends, including requirements to maintain adequate capital above regulatory minimums. The Federal Reserve is authorized to determine, under certain circumstances relating to the financial condition of a bank holding company, such as us, that the payment of dividends would be an unsafe or unsound practice and to prohibit payment thereof. In addition, we are subject to Delaware state laws relating to the payment of dividends.
 
Redemption
 
We may not redeem the Preferred Stock prior to the later of April 15, 2011 and the Stock Purchase Date. Thereafter, so long as full dividends on all outstanding shares of the Preferred Stock for the then-current Dividend Period have been paid or declared and a sum sufficient for the payment thereof set aside, and subject to receipt of the regulatory approvals discussed below, we, at the option of our board of directors, may redeem the Preferred Stock in whole or in part at any time. Any such redemption shall be at the redemption price of $100,000 per share plus dividends that have been declared but not paid plus accrued and unpaid dividends for the then current Dividend Period to the redemption date. If fewer than all of the outstanding shares of Preferred Stock are to be redeemed, the Preferred Stock to be redeemed will be selected either pro rata from the holders of record of the Preferred Stock in proportion to the number of shares of Preferred Stock held by such holders or by lot or in such other manner as our board of directors may determine to be fair and equitable.
 
Subject to this section and to receipt of the regulatory approvals discussed below, our board of directors will have the full power and authority to prescribe the terms and conditions upon which Preferred Stock will be redeemed from time to time. We will mail notice of every redemption of Preferred Stock by first class mail, postage prepaid, addressed to the holders of record of the Preferred Stock to be redeemed at their respective last addresses appearing on our books. Such mailing will be at least 30 days and not more than 60 days before the date fixed for redemption. Notwithstanding the foregoing, if the Preferred Stock is held in book-entry form through DTC, we may give such notice in any manner permitted by DTC. Any notice mailed as provided in this paragraph will be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing of such notice, to any holder of the Preferred Stock designated for redemption will not affect the redemption of any other Preferred Stock. If we redeem the Preferred Stock, the depositary, as holder of the Preferred Stock, will redeem the corresponding Depositary Shares.
 
Each notice shall state:
 
  •  the redemption date;
 
  •  the number of shares of Preferred Stock to be redeemed;
 
  •  the redemption price;
 
  •  the place or places where the Preferred Stock are to be redeemed; and
 
  •  that dividends on the shares to be redeemed will cease to accrue on the redemption date.


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All shares of Preferred Stock we redeem, purchase or acquire shall be cancelled and restored to the status of authorized but unissued shares of our authorized preferred stock, undesignated as to series.
 
Redemption or Repurchase Subject to Restrictions
 
Our right to redeem the Preferred Stock once issued is subject to two important limitations.
 
First, under the Federal Reserve’s risk-based capital guidelines applicable to bank holding companies, any redemption of the Preferred Stock is subject to prior approval of the Federal Reserve. Moreover, we have agreed with the Federal Reserve that, unless it authorizes us to do otherwise in writing, we will redeem the Preferred Stock only if it is replaced with other tier 1 capital that is not a restricted core capital element — for example, common stock or another series of non-cumulative perpetual preferred stock.
 
Second, at or prior to the initial issuance of the Preferred Stock, we will enter into a replacement capital covenant (the “Replacement Capital Covenant”) relating to the shares of Preferred Stock we will issue in the Exchange Offer. The Replacement Capital Covenant will limit our ability to redeem the Preferred Stock prior to the termination date of the Replacement Capital Covenant. See below under the section entitled “Certain Terms of the Replacement Capital Covenant” for a discussion of these limitations.
 
Subject to the limitations described above and the terms of any preferred stock ranking senior to the Preferred Stock or of any outstanding debt instruments, we or our affiliates may from time to time purchase any outstanding shares of Preferred Stock by tender, in the open market or by private agreement.
 
Rights Upon Liquidation, Dissolution or Winding Up
 
In the event of our liquidation, dissolution or winding up, the holders of the Preferred Stock at the time outstanding will be entitled to receive a liquidating distribution in the amount of the Liquidation Preference of $100,000 per share, plus any authorized, declared and unpaid dividends for the then-current Dividend Period to the date of liquidation, out of our assets legally available for distribution to our stockholders, before any distribution is made to holders of our common stock or any Junior Stock and subject to the rights of the holders of any class or series of securities ranking senior to or on parity with the Preferred Stock upon liquidation and the rights of our depositors and other creditors. If the amounts available for distribution upon our liquidation, dissolution or winding up are not sufficient to satisfy the full liquidation rights of all the outstanding Preferred Stock and all stock ranking equal to the Preferred Stock, then the holders of each series of Preferred Stock will share ratably in any distribution of assets in proportion to the full respective preferential amount to which they are entitled. After the full amount of the Liquidation Preference is paid, the holders of Preferred Stock will not be entitled to any further participation in any distribution of our assets.
 
For such purposes, our consolidation or merger with or into any other entity, the consolidation or merger of any other entity with or into us, or the sale of all or substantially all of our property or business will not be deemed to constitute our liquidation, dissolution or winding up.
 
We have agreed not to make a liquidation payment relating to any of our capital stock, including the Preferred Stock, if, at that time, there are one or more defaults under various indentures or related guarantees from us or we have delayed interest payments on the junior subordinated debentures issued thereunder. Currently, there is approximately $4.6 billion aggregate principal amount of junior subordinated debentures outstanding under these indentures.
 
Voting
 
Except as provided below, the holders of the Preferred Stock will have no voting rights. We will amend the existing terms of the Preferred Stock in connection with the Exchange Offer in order to provide holders with the voting rights set forth below. The granting of these additional voting rights are intended to facilitate the listing of the Depositary Shares on the New York Stock Exchange.
 
Whenever dividends on any shares of the Preferred Stock or any other class or series of Parity Stock shall have not been declared and paid for an amount equal to six or more dividend payments, whether or not for


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consecutive dividend periods (a “Nonpayment”), the holders of the Preferred Stock (together with holders of any and all other classes of our authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) will be entitled to vote as a single class for the election of a total of two additional members of our board of directors (the “Preferred Directors”), provided that the election of any such directors shall not cause us to violate the corporate governance requirement of the New York Stock Exchange (or any other exchange on which our securities may be listed) that listed companies must have a majority of independent directors and provided further that our board of directors shall at no time include more than two Preferred Directors. In that event, the number of directors on our board of directors shall automatically increase by two and, at the request of any holder of Preferred Stock, a special meeting of the holders of Preferred Stock and any other class or series of preferred stock that ranks on parity with the Preferred Stock as to payment of dividends and for which dividends have not been paid, shall be called for the election of the two directors (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of the stockholders, in which event such election shall be held at such next annual or special meeting of stockholders), followed by such election at each subsequent annual meeting. These voting rights will continue until full dividends have been paid regularly on the shares of the Preferred Stock and any other class or series of preferred stock that ranks on parity with the Preferred Stock as to payment of dividends for at least four consecutive dividend periods following the Nonpayment.
 
If and when full dividends have been regularly paid for at least four consecutive dividend periods following a Nonpayment on the Preferred Stock and any other class or series of Parity Stock, the holders of the Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each subsequent Nonpayment) and the term of office of each Preferred Director so elected shall terminate and the number of directors on the board of directors shall automatically decrease by two. Any Preferred Director may be removed at any time without cause by the holders of record of a majority of the outstanding shares of the Preferred Stock (together with holders of any and all other classes of our authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) when they have the voting rights described above. So long as a Nonpayment shall continue, any vacancy in the office of a Preferred Director (other than prior to the initial election of the Preferred Directors) may be filled by the written consent of the Preferred Director remaining in office, or if none remains in office, by a vote of the holders of the outstanding shares of Preferred Stock (together with holders of any and all other class of our authorized preferred stock having equivalent voting rights, whether or not the holders of such preferred stock would be entitled to vote for the election of directors if such default in dividends did not exist) to serve until the next annual meeting of stockholders. The Preferred Directors shall each be entitled to one vote per director on any matter.
 
If the holders of Preferred Stock become entitled to vote for the election of directors, the Preferred Stock may be considered a class of voting securities under interpretations adopted by the Federal Reserve. As a result, certain holders of the Preferred Stock may become subject to regulations under the Bank Holding Company Act and/or certain acquisitions of the Preferred Stock may be subject to prior approval by the Federal Reserve.
 
So long as any shares of Preferred Stock remain outstanding:
 
  •  the affirmative vote or consent of the holders of at least two-thirds of all of the shares of the Preferred Stock and all other Parity Stock at the time outstanding, voting as a single class without regard to series, shall be required to issue, authorize or increase the authorized amount of, or to issue or authorize any obligation or security convertible into or evidencing the right to purchase, any class or series of stock ranking senior to the Preferred Stock and all other parity stock with respect to payment of dividends or the distribution of assets upon our liquidation, dissolution or winding up; and
 
  •  the affirmative vote or consent of the holders of at least two-thirds of all of the shares of the Preferred Stock at the time outstanding, voting separately as a class, shall be required to amend the provisions of our Restated Certificate of Incorporation, as amended, or the Certificate of Designations of the Preferred Stock or any other series of preferred stock so as to materially and adversely affect the


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  powers, preferences, privileges or rights of the Preferred Stock, taken as a whole; provided, however, that any increase in the amount of the authorized or issued Preferred Stock or authorized preferred stock or the creation and issuance, or an increase in the authorized or issued amount, of other series of Preferred Stock and/or Junior Stock will not be deemed to adversely affect the powers, preferences, privileges or rights of the Preferred Stock.
 
The foregoing voting provisions will not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Preferred Stock shall have been redeemed or called for redemption upon proper notice and sufficient funds shall have been set aside by us for the benefit of the holders of the Preferred Stock to effect such redemption.
 
Form
 
The Preferred Stock will be issued only in fully registered form. No fractional shares will be issued unless (i) the number of Depositary Shares issued in the Exchange Offer is not an integral multiple of 100 or (ii) the Trust is dissolved and we deliver the shares of Preferred Stock, rather than depositary receipts representing those shares, to the registered holders of the Normal ITS. If the Trust is dissolved after the Stock Purchase Date and depositary receipts or shares of Preferred Stock are distributed to the holders of Normal ITS, we would intend to distribute them in book-entry form only.
 
Title
 
We, the transfer agent and registrar for the Preferred Stock, and any of their agents may treat the registered owners of the Preferred Stock, which shall be the depositary and, following the Stock Purchase Date, the property trustee, unless and until the Deposit Agreement is terminated or Trust is dissolved, as the case may be, as the absolute owner of that stock, whether or not any payment for the Preferred Stock shall be overdue and despite any notice to the contrary, for any purpose.
 
Transfer Agent and Registrar
 
If either (1) the Deposit Agreement is terminated and shares of Preferred Stock are distributed to holders of Depositary Shares or (2) the Trust is dissolved after the Stock Purchase Date and the shares of Preferred Stock or depositary receipts representing Preferred Stock are distributed to holders of Normal ITS, we may appoint a transfer agent, registrar and dividend disbursement agent for the Preferred Stock. The registrar for the Preferred Stock will send notices to stockholders of any meetings at which holders of the Preferred Stock have the right to vote on any matter.


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DESCRIPTION OF DEPOSITARY SHARES
 
The following section is a summary and does not describe every aspect of our Depositary Shares. Because this is a summary it does not contain all of the details found in the full text of the Deposit Agreement, the Depositary Shares and the depositary receipts. We urge you to read our form of Deposit Agreement, the form of Depositary Shares and the form of depositary receipts relating to the Preferred Stock. The Deposit Agreement, including the form of Depositary Shares and depositary receipts, will be filed by pre-effective amendment to the registration statement of which this Prospectus and Consent Solicitation Statement forms a part. See above under the section entitled “Where You Can Find More Information” for information on how to obtain a copy of the Deposit Agreement.
 
General
 
For each Normal ITS that we accept for exchange in the Exchange Offer, we will deliver one Depositary Share, each having a liquidation amount of $1,000. We will provide for the issuance by a depositary to the public of depositary receipts evidencing Depositary Shares.
 
We will deposit the shares of Preferred Stock under a separate deposit agreement between us and U.S. Bank National Association as depositary, or a successor depositary, having its principal office in the United States, and having a combined capital and surplus of at least $50 million.
 
In this Prospectus and Consent Solicitation Statement, references to “holders” of Depositary Shares mean those who own Depositary Shares registered in their own names, on the books that we or the depositary maintain for this purpose, and not indirect holders who own beneficial interests in Depositary Shares registered in street name or issued in book-entry form through DTC. Please review the special considerations that apply to indirect holders described below under the section entitled “Book-Entry Issuance.”
 
The Depositary Shares will represent fractional interests in shares of Preferred Stock. Each Depositary Share will represent a 1/100th ownership interest in a share of our Preferred Stock. The shares of Preferred Stock represented by Depositary Shares will be deposited under a deposit agreement among us, U.S. Bank National Association, as depositary, and the holders from time to time of the depositary receipts evidencing the Depositary Shares. Subject to the terms of the Deposit Agreement, each holder of a Depositary Share will be entitled, through the depositary, in proportion to the applicable fraction of a share of Preferred Stock represented by such Depositary Share, to all the rights and preferences of the Preferred Stock represented thereby (including dividend, voting, redemption and liquidation rights).
 
Immediately following the issuance of the Preferred Stock, we will deposit the Preferred Stock with the depositary, which will then issue the Depositary Shares to holders who have validly tendered their Normal ITS in the Exchange Offer to the extent that we have accepted such tendered Normal ITS for exchange.
 
Dividends and Other Distributions
 
The depositary will distribute any cash dividends or other cash distributions received in respect of the deposited Preferred Stock to the record holders of Depositary Shares relating to the underlying Preferred Stock in proportion to the number of Depositary Shares held by the holders. The depositary will distribute any property received by it other than cash to the record holders of Depositary Shares entitled to those distributions, unless it determines that the distribution cannot be made proportionally among those holders or that it is not feasible to make a distribution. In that event, the depositary may, with our approval, sell the property and distribute the net proceeds from the sale to the holders of the Depositary Shares in proportion to the number of Depositary Shares they hold.
 
Record dates for the payment of dividends and other matters relating to the Depositary Shares will be the same as the corresponding record dates for the Preferred Stock.
 
The amounts distributed to holders of Depositary Shares will be reduced by any amounts required to be withheld by the depositary or by us on account of taxes or other governmental charges.


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Redemption of Depositary Shares
 
If we redeem the Preferred Stock represented by the Depositary Shares, the Depositary Shares will be redeemed from the proceeds received by the depositary resulting from the redemption of the Preferred Stock held by the depositary. The depositary will mail notice of redemption between 30 and 60 days before the date fixed for redemption to the record holders of the Depositary Shares to be redeemed at the address appearing in the depositary’s records. The redemption price per Depositary Share will be equal to 1/100th of the redemption price per share payable with respect to the Preferred Stock (or $1,000 per Depositary Share), plus distributions representing the applicable portion of dividends on the Preferred Stock that have been declared but not paid plus distributions representing the applicable portion of accrued and unpaid dividends on the Preferred Stock for the then current Dividend Period to the redemption date. Whenever we redeem shares of Preferred Stock held by the depositary, the depositary will redeem, as of the same redemption date, the number of Depositary Shares representing shares of Preferred Stock so redeemed.
 
In case of any redemption of less than all of the outstanding Depositary Shares, the Depositary Shares to be redeemed will be selected by the depositary pro rata or in such other manner determined by the depositary to be equitable. In any such case, we will redeem Depositary Shares only in increments of 100 shares and any integral multiple thereof.
 
From and after the date fixed for redemption, the Depositary Shares called for redemption will no longer be outstanding. When the depositary shares are no longer outstanding, all rights of the holders of Depositary Shares will cease, except the right to receive money or property that the holders of the Depositary Shares were entitled to receive on redemption.
 
Voting the Preferred Stock
 
When the depositary receives notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the depositary will mail the information contained in the notice to the record holders of the Depositary Shares relating to the Preferred Stock. Each record holder of the Depositary Shares on the record date, which will be the same date as the record date for the Preferred Stock, may instruct the depositary to vote the amount of the Preferred Stock represented by the holder’s Depositary Shares. To the extent possible, the depositary will vote the amount of the Preferred Stock represented by Depositary Shares in accordance with the instructions it receives. We will agree to take all reasonable actions that the depositary determines are necessary to enable the depositary to vote as instructed. If the depositary does not receive specific instructions from the holders of any Depositary Shares representing the Preferred Stock, it will vote all Depositary Shares of that series held by it proportionately with instructions received.
 
Listing; Trading Market May Not Develop
 
We intend to apply to list the Depositary Shares on the New York Stock Exchange. If the application is approved, we expect trading to begin within 30 days of the initial delivery of the Depositary Shares. We do not expect that there will be any separate public trading market for the shares of the Preferred Stock except as represented by the Depositary Shares.
 
Amendment and Termination of the Deposit Agreement
 
The form of depositary receipt evidencing the Depositary Shares and any provision of the deposit agreement may be amended at any time by an agreement between us and the depositary. However, any amendment that materially and adversely alters the rights of the existing holders of Depositary Shares will not be effective unless approved by the record holders of at least a majority of the Depositary Shares then outstanding. The deposit agreement may be terminated by either the depositary or us only if:
 
  •  all outstanding Depositary Shares relating to the deposit agreement have been redeemed; or
 
  •  there has been a final distribution on the Preferred Stock of the relevant series in connection with our liquidation, dissolution or winding up and the distribution has been distributed to the holders of the related depositary receipts evidencing the Depositary Shares.


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Charges of Depositary
 
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the depositary associated with the initial deposit and any redemption of the Preferred Stock. Holders of Depositary Shares will pay transfer and other taxes and governmental charges, and any other charges that are stated to be their responsibility in the deposit agreement.
 
Resignation and Removal of Depositary
 
The depositary may resign at any time by delivering notice to us. We may also remove the depositary at any time. Resignations or removals will be effective when a successor depositary is appointed, and when the successor accepts the appointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and a combined capital and surplus of at least $50 million.
 
Miscellaneous
 
The depositary will forward to the holders of Depositary Shares all reports and communications that it receives from us, and that we are required to furnish to holders of the Preferred Stock.
 
Neither the depositary nor we will be liable if the depositary is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the deposit agreement. Our obligations and that of the depositary under the deposit agreement will be limited to performance in good faith of the duties described in the deposit agreement. Neither the depositary nor us will be obligated to prosecute or defend any legal proceeding connected with any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished to the depositary and us. The depositary and we may rely on written advice of counsel or accountants, or information provided by persons presenting Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be competent and on documents believed to be genuine.
 
Form of Preferred Stock and Depositary Shares
 
The Depositary Shares shall be issued in book-entry form through DTC, as described below under the section entitled “Book-Entry Issuance.” The Preferred Stock will be issued in registered form to the depositary.


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COMPARISON OF RIGHTS BETWEEN THE NORMAL ITS AND THE DEPOSITARY SHARES
 
The following briefly summarizes the material differences between the rights of holders of the Normal ITS as currently in effect and of holders of the Depositary Shares to be issued in the Exchange Offer. The discussion below is a summary and is qualified in its entirety by reference to our certificate of incorporation, the Trust Agreement, the Statutory Trust Act of the State of Delaware, the Trust Indenture Act of 1939, as amended, our amended and restated Bylaws (“Bylaws”), applicable Delaware law and other documents referred to herein. We urge you to read these documents for a more complete understanding of the differences between the Normal ITS and the Depositary Shares.
 
Dividends and Distributions
 
Normal ITS:
 
General.  Subject to the deferral provisions described below, through the later of April 15, 2011 and the Stock Purchase Date, holders of Normal ITS are entitled to receive cash distributions semi-annually at the rate of 6.189% per annum of the liquidation amount. After the Stock Purchase Date, holders of Normal ITS will be entitled to receive distributions corresponding to the dividends on the Preferred Stock held by the Trust. Non-cumulative dividends on each share of Preferred Stock, if declared, will accrue on the liquidation preference of $100,000 per share (1) to but not including the later of the Dividend Payment Date in April 2011 and the Stock Purchase Date at a rate per annum equal to 6.189% and (2) thereafter at a rate per annum equal to the greater of (i) Three-Month LIBOR plus 1.02% and (ii) 3.50%.
 
Deferral of Distributions.  Until the Stock Purchase Date, the funds available to the Trust for distributions on the Normal ITS are limited to payments received from us on the Underlying Notes held by the Trust and contract payments that we pay on the stock purchase contracts. We may defer interest payments on the Underlying Notes for up to ten years, provided no deferral period will extend beyond the final repayment date or the earlier redemption of the Underlying Notes. We may also elect, or be required by the Federal Reserve, to defer contract payments on the stock purchase contracts. If we defer interest payments on the Underlying Notes or the contract payments on the stock purchase contracts, distributions on the Normal ITS will also be deferred. Interest payments on the Underlying Notes and contract payments on the stock purchase contracts continue to accrue during deferral periods and, as a result, distributions on the Normal ITS continue to accrue. During a deferral period, we cannot pay any dividends or make any distributions relating to, or redeem, purchase, acquire or make a liquidation payment relating to, any of our capital stock, including the Preferred Stock, or make an interest, principal or premium payment on or repurchase of any of our debt securities that rank equal with or junior to the Underlying Notes, subject to certain exceptions. After the Stock Purchase Date, the funds available to the Trust for distributions will be limited to dividends received from us on the Preferred Stock held by the Trust which dividends may not be deferred.
 
Depositary Shares:
 
General.  Non-cumulative dividends, if declared, on each share of Preferred Stock that are held by the depositary will accrue on the liquidation preference of $100,000 per share (1) from the settlement date for the Exchange Offer to, but not including, the later of the dividend payment date in April 2011 and the Stock Purchase Date at a rate per annum equal to 7.189%, and (2) thereafter for each related Dividend Period at a rate per annum equal to the greater of (i) Three-Month LIBOR plus 1.02% and (ii) 3.50%. Holders of Depositary Shares generally will be entitled to receive dividends directly from us rather than as distributions from the Trust at the same rates per annum as any shares of the Preferred Stock that may be purchased by the Trust from us under the stock purchase contracts on the Stock Purchase Date.
 
Deferral of Dividends.  None. However, holders of the Preferred Stock will only be entitled to receive non-cumulative cash dividends when, as and if declared out of assets legally available for payment in respect of such Preferred Stock by our board of directors in its sole discretion. In the event we do not declare dividends or do not pay dividends in full on the Preferred Stock on any date on which dividends are due, then such unpaid dividends will not cumulate and will no longer accrue and be payable.


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Ranking; Rights upon Liquidation, Dissolution or Winding Up
 
Normal ITS:  Until the later of April 15, 2011 and the Stock Purchase Date, the Normal ITS (by virtue of the Underlying Notes) will rank, with respect to rights upon our liquidation, dissolution or winding up:
 
  •  senior in right of payment to our capital stock, including the Preferred Stock and our common stock,
 
  •  equal in right of payment to trade account payables and accrued liabilities arising in the ordinary course of our business and to certain other indebtedness that are by its terms made pari passu with the Underlying Notes forming part of the Normal ITS, and
 
  •  junior in right of payment to our existing and future senior and subordinated indebtedness, the junior subordinated debt securities underlying our outstanding traditional trust preferred securities that are equal in right of payment with each other,
 
From and after the later of April 15, 2011 and the Stock Purchase Date, the Normal ITS will rank, with respect to rights upon our liquidation, dissolution or winding up:
 
  •  senior in right of payment to our common stock and to any other securities that we may issue in the future that are subordinate to the Preferred Stock,
 
  •  equal in right of payment to our other series of outstanding preferred stock that is not by its terms subordinated to the Preferred Stock (such parity preferred stock includes our Series B Preferred Stock and Series D Preferred Stock), and
 
  •  junior in right of payment to our existing and future senior and subordinated indebtedness and other liabilities,
 
The liquidation amount of the Normal ITS is $1,000 per Normal ITS, plus any accrued and unpaid distributions on such security.
 
Depositary Shares:  The Depositary Shares will rank equally to the shares of Preferred Stock that will be issued to the Trust upon the Stock Purchase Date. Specifically, the Depositary Shares will rank, with respect to rights upon our liquidation, dissolution or winding up:
 
  •  senior in right of payment to our common stock and to any other securities that we may issue in the future that are subordinate to the Preferred Stock,
 
  •  equal in right of payment to our other series of outstanding preferred stock that is not by its terms subordinated to the Preferred Stock (such parity preferred stock includes our Series B Preferred Stock and Series D Preferred Stock), and
 
  •  junior in right of payment to our existing and future senior and subordinated indebtedness and other liabilities.
 
As of the date hereof, there are no shares of our authorized preferred stock that would rank senior to the Depositary Shares or Preferred Stock authorized, issued or outstanding. Each Depositary Share has a liquidation amount of $1,000, plus any accrued and unpaid distributions on such security.
 
Conversion Rights
 
Normal ITS:  The Normal ITS are not convertible into any of our other securities.
 
Depositary Shares:  Neither the Preferred Stock or the Depositary Shares are convertible into any of our other securities.
 
Voting Rights
 
Normal ITS:  Generally, holders of the Normal ITS do not have any voting rights with respect to U.S. Bancorp, but do have the right to vote on modifications to certain documents governing the Normal ITS,


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including the Indenture. After the Stock Purchase Date, the holders of Normal ITS through the Trustee will have the same voting rights with respect to the Preferred Stock as will the holders of Depositary Shares.
 
Depositary Shares:  Holders of our Depositary Shares will be entitled to the voting rights described above under the section “Description of Depositary Shares — Voting the Preferred Stock.” Such voting rights include the right of holders of the outstanding shares of Preferred Stock, together with holders of any other series of our preferred stock ranking equal with the Preferred Stock with similar voting rights, to vote for the election of two additional directors to our board, subject to the terms and to the limited extent described under “Description of Preferred Stock — Voting,” if dividends on any shares of the Preferred Stock or any other class or series of preferred stock that ranks on parity with the Preferred Stock as to payment of dividends with similar voting rights have not been declared or paid for the equivalent of six dividend payments, whether or not for consecutive dividend periods, See “Description of Preferred Stock — Voting.”
 
Redemption
 
Normal ITS:  We may redeem the Underlying Notes at any time, on or after April 15, 2015, in whole or in part, at 100% of the principal amount thereof plus accrued and unpaid interest. We may redeem any Preferred Stock held by the Trust at any time after the later of April 15, 2011 and the Stock Purchase Date at a redemption price of $100,000 per share plus dividends that have been declared but not paid plus accrued and unpaid dividends for the then-current Dividend Period to the redemption date.
 
The Trust will redeem the Normal ITS and the Trust’s common securities on the dates and to the extent we redeem the Underlying Notes or the Preferred Stock. The redemption price for the Normal ITS will be the total liquidation amount of $1,000 per Normal ITS plus accumulated and unpaid distributions to the redemption date If the Trust redeems less than all the outstanding Normal ITS and common securities, then the Trust will redeem each on a pro rata basis.
 
The Normal ITS are not redeemable at the option of the holders.
 
Depositary Shares:  We may redeem the Preferred Stock issued in connection with the Exchange Offer at any time after the later of April 15, 2011 and the Stock Purchase Date at a redemption price of $100,000 per share plus dividends that have been declared but not paid plus accrued and unpaid dividends for the then-current current Dividend Period to the redemption date.
 
The depositary will redeem the number of Depositary Shares representing shares of Preferred Stock so redeemed, on the dates and to the extent we redeem the Preferred Stock. The redemption price for the Depositary Shares will be the total liquidation amount of $1,000 per Depositary Share plus accumulated and unpaid distributions to the redemption date. If the depositary redeems less than all the outstanding underlying shares of Preferred Stock, then the Depositary will redeem each on a pro rata basis.
 
The Depositary Shares and the Preferred Stock will not be redeemable at the option of the holders.
 
Listing
 
Normal ITS:  The Normal ITS are listed for trading on the New York Stock Exchange under the symbol “USBTP.”
 
Depositary Shares:  We intend to apply for listing of the Depositary Shares on the New York Stock Exchange. If approved for listing, we expect trading of the Depositary Shares on the New York Stock Exchange to commence within a 30-day period after the initial delivery of the Depositary Shares.


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CERTAIN TERMS OF THE REPLACEMENT CAPITAL COVENANT
 
We have summarized below certain terms of the Replacement Capital Covenant. This summary is not a complete description of the Replacement Capital Covenant and is qualified in its entirety by the terms and provisions of the full document, a form of which is available from us upon request.
 
In the Replacement Capital Covenant, we will covenant to redeem or repurchase shares of Preferred Stock prior to the termination date of the Replacement Capital Covenant only if and to the extent that (1) we have obtained the prior approval of the Federal Reserve if such approval is then required by the Federal Reserve, and (2) the total redemption or repurchase price is equal to or less than the sum, as of the date of redemption or repurchase, of:
 
  •  133.33% of the aggregate net cash proceeds we or our subsidiaries have received during the 180 days prior to the date of such repurchase or the date we give notice of such redemption from the issuance and sale of common stock and rights to acquire our common stock; plus
 
  •  100% of the aggregate net cash proceeds we or our subsidiaries have received during the 180 days prior to the date of such repurchase or the date we give notice of such redemption from the issuance of certain other specified securities that have equity-like characteristics that satisfy the requirements of the Replacement Capital Covenant, which means generally that such other securities have characteristics that are the same as, or more equity-like than, the applicable characteristics of the Preferred Stock at that time.
 
Our ability to raise proceeds from qualifying securities during the 180 days prior to a proposed repurchase or the date on which notice of redemption is given will depend on, among other things, market conditions at such times as well as the acceptability to prospective investors of the terms of such qualifying securities.
 
Our covenants in the Replacement Capital Covenant run in favor of persons that buy, hold or sell our indebtedness during the period that such indebtedness is “Covered Debt,” which is currently comprised of our 5.875% junior subordinated debentures due 2035, underlying the 5.875% trust preferred securities of USB Capital VII (CUSIP No. 903301208). Other debt will replace our Covered Debt under the Replacement Capital Covenant on the earlier to occur of (1) the date two years prior to the maturity of the existing Covered Debt, (2) the date of a redemption or repurchase of the existing Covered Debt in an amount such that the outstanding principal amount of the existing Covered Debt is or will become less than $100 million, after giving effect to such redemption or repurchase, or (3) if the existing Covered Debt is not eligible subordinated debt as defined in the Replacement Capital Covenant, the date on which we or U.S. Bank National Association issues long-term indebtedness for money borrowed that is eligible subordinated debt.
 
Subject to the limitations described above and the terms of any preferred stock ranking senior to the Preferred Stock or of any outstanding debt instruments, we or our affiliates may from time to time purchase any outstanding shares of Preferred Stock by tender, in the open market or by private agreement.


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BOOK-ENTRY ISSUANCE
 
DTC will act as securities depositary for all of the Depositary Shares issued in the Exchange Offer. We will issue the Depositary Shares only as fully-registered securities registered in the name of Cede & Co. (DTC’s nominee). We will issue and deposit with DTC one or more fully-registered global certificates for the Depositary Shares representing, in the aggregate, the total number of the Depositary Shares to be issued in the Exchange Offer.
 
DTC has advised us that DTC is a limited-purpose trust company organized under the laws of the State of New York, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities for its participating organizations (collectively, the “Participants”) and to facilitate the clearance and settlement of transactions in those securities between the Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the Dealer Managers), banks, trust companies, clearing corporations and certain other organizations. Access to DTC’s system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the “Indirect Participants”). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests in, and transfers of ownership interests in, each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants. The rules applicable to DTC and its Participants are on file with the SEC.
 
Purchases of Depositary Shares within the DTC system must be made by or through Direct Participants, who will receive a credit for the Depositary Shares on DTC’s records. The ownership interest of each actual purchaser of each depositary share is in turn to be recorded on the Direct and Indirect Participants’ records. DTC will not send written confirmation to beneficial owners of their purchases, but beneficial owners are expected to receive written confirmations providing details of the transactions, as well as periodic statements of their holdings, from the Direct or Indirect Participants through which the beneficial owners purchased Depositary Shares. Transfers of ownership interests in the Depositary Shares are to be accomplished by entries made on the books of Participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in Depositary Shares, unless the book-entry system for the Depositary Shares is discontinued.
 
DTC has no knowledge of the actual beneficial owners of the Depositary Shares. DTC’s records reflect only the identity of the Direct Participants to whose accounts the Depositary Shares are credited, which may or may not be the beneficial owners. The Participants will remain responsible for keeping account of their holdings on behalf of their customers.
 
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by Direct Participants and Indirect Participants to beneficial owners and the voting rights of Direct Participants, Indirect Participants and beneficial owners, subject to any statutory or regulatory requirements as is in effect from time to time, will be governed by arrangements among them.
 
We will send redemption notices to Cede & Co. as the registered holder of the Depositary Shares. If less than all of these Depositary Shares are redeemed, DTC’s current practice is to determine by lot the amount of the interest of each Direct Participant to be redeemed.
 
Although voting on the Depositary Shares is limited to the holders of record of the Depositary Shares, in those instances in which a vote is required, neither DTC nor Cede & Co. will itself consent or vote on Depositary Shares. Under its usual procedures, DTC would mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting or voting rights to Direct Participants for whose accounts the Depositary Shares are credited on the record date (identified in a listing attached to the omnibus proxy).
 
We will make distribution payments on the Depositary Shares to DTC. DTC’s practice is to credit Direct Participants’ accounts on the relevant payment date in accordance with their respective holdings shown on DTC’s records unless DTC has reason to believe that it will not receive payments on the payment date. Standing instructions and customary practices will govern payments from Participants to beneficial owners.


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MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES
 
The following summary describes the material U.S. federal income tax consequences relating to the exchange of the Normal ITS pursuant to the Exchange Offer and to the ownership and disposition of our Depositary Shares received upon such exchange. It applies to you only if you acquire the Depositary Shares in the Exchange Offer and you hold your Normal ITS and Depositary Shares as capital assets for U.S. federal income tax purposes. This section does not apply to you if you are a member of a class of holders subject to special rules under the U.S. federal income tax laws, such as:
 
  •  a dealer in securities or commodities,
 
  •  a trader in securities that elects to use a mark-to-market method of accounting for your securities holdings,
 
  •  a bank, insurance company, or other financial institution,
 
  •  a regulated investment company or real estate investment trust,
 
  •  a tax-exempt organization,
 
  •  a person that owns Normal ITS or Depositary Shares as a position in a hedging transaction, “straddle,” “exchange transaction,” “conversion transaction,” or other risk reduction transaction,
 
  •  a U.S. holder (as defined below) whose functional currency for U.S. federal income tax purposes is not the U.S. dollar, or
 
  •  a U.S. expatriate.
 
This section does not consider the specific facts and circumstances that may be relevant to a particular holder and does not address alternative minimum tax considerations or the treatment of a holder under the laws of any state, local, or foreign taxing jurisdiction. This section is based on the tax laws of the United States, including the Internal Revenue Code of 1986, as amended (the “Code”), existing and proposed U.S. Treasury regulations, and administrative and judicial interpretations, all as currently in effect. These laws are subject to change, possibly on a retroactive basis. This section is based on the treatment of the Trust as a grantor trust and on the treatment of the Underlying Notes as our indebtedness for U.S. federal income tax purposes, and the rest of this section so assumes.
 
If a partnership (or an entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds the Normal ITS, the U.S. federal income tax treatment of a partner will generally depend on the status of the partner and the tax treatment of the partnership. A partner in a partnership holding the Normal ITS should consult its tax advisor with regard to the U.S. federal income tax treatment of the Exchange Offer and of owning the Depositary Shares received pursuant to the Exchange Offer.
 
YOU ARE URGED TO CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO YOUR PARTICULAR SITUATION AS WELL AS ANY TAX CONSEQUENCES OF THE EXCHANGE OFFER AND THE OWNERSHIP AND DISPOSITION OF THE DEPOSITARY SHARES ACQUIRED IN THE EXCHANGE ARISING UNDER U.S. FEDERAL ESTATE OR GIFT TAX RULES OR UNDER THE LAWS OF ANY STATE, LOCAL, FOREIGN, OR OTHER TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.
 
U.S. Holders
 
This subsection describes the tax consequences to a U.S. holder of participation in the Exchange Offer. You are a U.S. holder if you are a beneficial owner of Normal ITS and you are:
 
  •  an individual who is a citizen or resident of the United States,
 
  •  an entity that is a corporation or other entity treated as a corporation for U.S. federal income tax purposes created or organized in or under the laws of the United States or of any state or the District of Columbia,
 
  •  an estate the income of which is subject to U.S. federal income tax regardless of its source, or


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  •  a trust if a U.S. court can exercise primary supervision over the trust’s administration and one or more U.S. persons are authorized to control all substantial decisions of the trust.
 
Notwithstanding the preceding paragraph, to the extent provided in U.S. Treasury regulations, certain trusts in existence on August 20, 1996, and treated as U.S. persons prior to that date, that elect to continue to be treated as U.S. persons will also be U.S. holders.
 
If you are not a U.S. holder, this subsection does not apply to you and you should refer to “— Non-U.S. Holders” below.
 
Treatment of the Normal ITS.  Each Normal ITS consists of two components, an undivided beneficial interest in an Underlying Note and a stock purchase contract (the “Contract”). The purchase price of each Normal ITS was allocated between the Underlying Note and the Contract in proportion to their respective fair market values at the time of issuance. This allocation established the U.S. holder’s initial tax basis in the Underlying Note and the Contract. With respect to the initial issuance, we determined that 100% of the issue price of a Normal ITS was allocable to the Underlying Note and 0% was allocable to the Contract. By purchasing the Normal ITS upon issuance, each U.S. holder was deemed to have agreed to this allocation, although this allocation is not binding on the Internal Revenue Service (“IRS”). If a U.S. holder acquired a Normal ITS through a purchase in the secondary market, the purchase price should have been similarly allocated between the Underlying Note and the Contract in proportion to the fair market values of the two components at the time of the purchase.
 
There is no direct authority addressing the U.S. federal income tax treatment under current law of the contract payments that holders of the Normal ITS have been receiving pursuant to the Contracts (“Contract Payments”), and such treatment is unclear. We have been reporting the Contract Payments on any required information returns as ordinary income to U.S. holders. Under this treatment, U.S. holders should have included the Contract Payments in gross income when received or accrued, in accordance with their regular method of tax accounting. U.S. holders should consult their own tax advisors regarding the characterization of Contract Payments under U.S. federal income tax law.
 
Exchange of Normal ITS for Depositary Shares.  We believe, and intend to take the position, that for U.S. federal income tax purposes, the exchange of a Normal ITS for Depositary Shares pursuant to the Exchange Offer should be treated as if:
 
  •  A portion of the Underlying Notes is exchanged for Depositary Shares in a recapitalization under Section 368(a)(1)(E) of the Code (“the Exchange”); and
 
  •  the Contract is terminated for an amount deemed paid to us reflecting the relief of the U.S. holder’s obligation under the Contract, which amount is deemed paid through the surrender of the remaining amount of Underlying Notes having a value equal to the value of such relief (the “Contract Termination”).
 
In the opinion of Squire, Sanders & Dempsey L.L.P, although the matter is not free from doubt, it is more likely than not that the Exchange will be treated as a tax-free recapitalization and the remainder of the exchange of a Normal ITS for Depositary Shares (i.e., the Contract Termination) will be treated as a payment by a holder in cancellation of the Contract. However, there exists some meaningful uncertainty that this treatment will apply for U.S. federal income tax purposes because (i) there is no direct authority addressing the treatment or characterization, under current law, of the exchange of an instrument similar to a Normal ITS with the issuer thereof for shares of its preferred stock, (ii) there are several possible characterizations of such an exchange, and (iii) such opinion is not binding on the IRS or the courts, either or both of which may reach a contrary conclusion. Because the treatment of the exchange of Normal ITS for Depositary Shares is uncertain, the manner in which any gain or loss that may be recognized is calculated is also unclear due to the absence of authority addressing the same or substantially similar transactions.
 
The treatment of the Exchange will depend on whether the Underlying Note constitutes a security for U.S. federal income tax purposes. The term “security” is not defined in the Code or in the U.S. Treasury regulations and has not been clearly defined by judicial decisions. The determination of whether a particular


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debt obligation constitutes a security depends on an evaluation of the overall nature of the debt. One of the most significant factors considered in determining whether a particular debt is a security is its original term. In general, debt obligations issued with a maturity at issuance of less than five years do not constitute securities, whereas debt obligations with a maturity at issuance of ten years or more constitute securities. While the Underlying Notes have a stated maturity of approximately 36 years, we have the right to change the stated maturity of the Underlying Notes at the time of remarketing to a remaining term of less than five years. Notwithstanding such possibility, on the basis of judicial authorities, we believe that the Underlying Notes should constitute securities from a U.S. federal income tax standpoint.
 
Because a holder of a Normal ITS is treated for U.S. federal income tax purposes as the beneficial owner of a ratable share of the Underlying Notes, the exchange of the Normal ITS for our Depositary Shares pursuant to the Exchange Offer more likely than not should be treated as an exchange of a portion of the Underlying Notes for our Depositary Shares for U.S. federal income tax purposes, and should therefore be a recapitalization within the meaning of Section 368(a)(1)(E) of the Code. Therefore, except as described below with respect to payment for accrued and unpaid interest, no gain or loss will be recognized by a U.S. holder upon the Exchange. Accordingly, your tax basis in the Depositary Shares received in the Exchange will be the same as your adjusted tax basis in the portion of the Normal ITS deemed surrendered for the Depositary Shares, and your holding period for such Depositary Shares will include your holding period for the portion of the Normal ITS that were so exchanged.
 
If you acquired a Normal ITS other than at original issuance, and the amount of purchase price allocated to the Underlying Notes at such time was less than the stated principal amount of a ratable share of the Underlying Notes, the amount of such difference is generally treated as “market discount” on the Underlying Notes for U.S. federal income tax purposes, unless such difference is less than a specified de minimis amount. In general, market discount will be considered to accrue ratably during the period from the date of the purchase of the Normal ITS to the maturity date of the Underlying Notes, unless you make an irrevocable election (on an instrument-by-instrument basis) to accrue market discount under a constant yield method. If you are treated as exchanging Underlying Notes for our Depositary Shares pursuant to the Exchange, and the Underlying Notes have accrued market discount at such time, any gain on the subsequent disposition of such Depositary Shares will be treated as ordinary income to the extent of such accrued market discount that has not previously been included in income.
 
As noted above, there exists some meaningful uncertainty as to the treatment of the Exchange Offer for U.S. federal income tax purposes and there are several possible characterizations of the Exchange Offer, including the related Contract Termination. Under the treatment outlined herein, we believe that for all U.S. holders who have allocated their entire purchase price for the Normal ITS to the Underlying Notes (which includes, for example, all initial purchasers of the Normal ITS), it is more likely than not that such holders should not recognize any gain (and may be entitled to claim a capital loss) in connection with the Contract Termination (subject to possible recognition of income or gain from market discount on the Underlying Notes, if any, pursuant to the Contract Termination for holders who purchased Normal ITS in the secondary market). U.S. holders should consult their own tax advisors with respect to the appropriate characterization of the Exchange Offer, including the related Contract Termination because there are possible characterizations of the Exchange Offer and the Contract Termination under which the holder would not recognize any income, gain, or loss, and there are possible characterizations of the Exchange Offer and the Contract Termination under which such holder could recognize income, gain, or loss in a manner different from that described above.
 
Payment of the accrued and unpaid interest on your beneficial interest in an Underlying Note in the Exchange Offer will be taxable as ordinary interest income (to the extent not previously taken into income). We plan to report payment of the accrued and unpaid Contract Payments on your beneficial interest in a Contract in the Exchange Offer as taxable ordinary income in the same manner as we have been reporting Contract Payments prior to the Exchange Offer.
 
Depositary Shares.  Distributions paid by us out of our current or accumulated earnings and profits (as determined for U.S. federal income tax purposes) on our Depositary Shares received as part of the Exchange


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Offer will constitute dividends and will be includible in income by U.S. holders when received. Under current law, such dividends paid to individual U.S. holders generally should qualify for a maximum 15% tax rate on “qualified dividend income” through December 31, 2010. Such dividends will be eligible for the dividends received deduction if the U.S. holder is an otherwise qualifying corporate holder that meets the holding period and other requirements for the dividends received deduction. If a distribution exceeds our current and accumulated earnings and profits, the excess first will be treated as a tax-free return of the U.S. holder’s investment to the extent of such U.S. holder’s adjusted tax basis in the Depositary Shares, and thereafter as capital gain.
 
Upon a disposition of our Depositary Shares, a U.S. holder generally will recognize capital gain or loss equal to the difference between the amount realized and the U.S. holder’s adjusted tax basis in the Depositary Shares. Such capital gain or loss generally will be long-term capital gain or loss if the U.S. holder had a holding period in such Depositary Shares of more than one year immediately prior to such disposition. Certain U.S. holders (including individuals) are eligible for preferential U.S. federal income tax rates in respect of long-term capital gain (which rates are scheduled to increase on January 1, 2011). The deductibility of capital losses is subject to limitations under the Code.
 
Non-Participating Holders.  U.S. holders that do not tender their Normal ITS in the Exchange Offer will not recognize gain or loss, and will continue to have the same tax basis and holding period with respect to the Normal ITS as they had before the consummation of the Exchange Offer.
 
Treatment of Consent Fee.  A U.S. holder who does not tender all of the Normal ITS owned by such holder in the Exchange Offer, but who does consent to the Proposed Amendments with respect to some or all of the Normal ITS retained by such holder by executing a Letter of Transmittal and Consent will receive a Consent Fee. We intend to treat such Consent Fee as ordinary income to the U.S. holder. The Proposed Amendments should not constitute a taxable exchange under Section 1001 of the Code of the Underlying Notes retained by such U.S. holder.
 
Non-U.S. Holders
 
This subsection describes the tax consequences to a non-U.S. holder. You are a non-U.S. holder if you are the beneficial owner of a Normal ITS and you are not a U.S. holder or a partnership (including an entity or arrangement treated as a partnership for U.S. federal income tax purposes). If you are a U.S. holder, this subsection does not apply to you.
 
Treatment of the Exchange Offer.  Generally, if you are a non-U.S. holder, you will not be subject to U.S. federal income or withholding tax on the exchange of Normal ITS for Depositary Shares pursuant to the Exchange Offer, subject to the discussion below regarding the treatment of accrued interest and accrued Contract Payments unless:
 
  •  any recognized gain is effectively connected with the non-U.S. holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base, in the case of an individual, in the United States maintained by such non-U.S. holder) in which case the gain will be treated as described below under “— Effectively Connected Income”;
 
  •  the non-U.S. holder is an individual present in the United States for 183 days or more during the taxable year in which the gain is realized and certain other conditions are met, in which case any recognized gain will be subject to U.S. federal income tax at a 30% rate but may be offset by U.S. source capital losses; or
 
  •  we are or have been a “United States real property holding corporation” (“USRPHC”), within the meaning of the “Foreign Investment in Real Property Tax Act” for U.S. federal income tax purposes at any time during the shorter of the period commencing on the date the Normal ITS were issued and ending on the date of the termination of the Contract or the period that such non-U.S. holder held such Contract. We believe that we have not been a USRPHC during the period in which the Normal ITS have been outstanding, and we do not anticipate becoming a USRPHC.


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Accrued Interest.  A non-U.S. holder generally will not be subject to the 30% U.S. federal income or withholding tax on any amounts received that are properly allocable to accrued interest on the Underlying Notes, provided that the non-U.S. holder:
 
  •  does not own, actually or constructively, 10% or more of the total combined voting power of all classes of our stock entitled to vote;
 
  •  is not a “controlled foreign corporation” with respect to which we are, directly or indirectly, a “related person;”
 
  •  is not a bank receiving interest pursuant to a loan agreement entered into in the ordinary course of its trade or business; and
 
  •  provides the holder’s name and address, and certifies, under penalties of perjury, that the holder is not a U.S. person (which certification may be made on an IRS Form W-8BEN (or successor form)), or, if the holder holds the Normal ITS through certain foreign intermediaries, such holder and the foreign intermediaries satisfy the certification requirements of applicable U.S. Treasury regulations.
 
If a non-U.S. holder cannot satisfy the requirements described above, such non-U.S. holder will be subject to a 30% U.S. federal withholding tax unless the non-U.S. holder provides us with a properly executed (1) IRS Form W-8BEN (or successor form) claiming an exemption from or reduction in withholding under the benefit of an applicable U.S. income tax treaty or (2) IRS Form W-8ECI (or successor form) stating that the interest is not subject to withholding tax because it is effectively connected with the non-U.S. holder’s conduct of a U.S. trade or business (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base, in the case of an individual, in the United States maintained by such non-U.S. holder). For the treatment of any interest that is described immediately above in (2), see below under “— Effectively Connected Income.”
 
Accrued Contract Payments.  There is no direct authority under current law that addresses the U.S. federal income tax treatment of the Contract Payments and such treatment is, therefore, unclear. We intend to treat any amounts paid that are properly allocable to accrued Contract Payments as amounts subject to U.S. federal withholding tax at a 30% rate, unless an income tax treaty reduces or eliminates such tax or the payment is effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base, in the case of an individual, in the United States maintained by such non-U.S. holder) and the non-U.S. holder provides the applicable, properly executed IRS forms, as described above. For the treatment of any accrued Contract Payments that are effectively connected with a U.S. trade or business, see below under “— Effectively Connected Income.” Alternative treatments of the Contract Payments are possible. Non-U.S. holders should consult their tax advisors concerning Contract Payments and the possibility of obtaining a refund of any U.S. federal withholding tax.
 
Treatment of Consent Fee.  A non-U.S. holder who does not tender all of the Normal ITS owned by such holder in the Exchange Offer, but who does consent to the Proposed Amendments with respect to some or all of the Normal ITS retained by such holder by executing a Letter of Transmittal and Consent, will receive a Consent Fee. We intend to treat such Consent Fee as an amount subject to U.S. federal withholding tax at a 30% rate, unless an income tax treaty reduces or eliminates such tax or the payment is effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment or fixed base, in the case of an individual, in the United States maintained by such non-U.S. holder) and the non-U.S. holder provides the applicable, properly executed IRS forms, as described above. For the treatment of any Consent Fees that are effectively connected with a U.S. trade or business, see below under “— Effectively Connected Income.” Non-U.S. holders should consult their tax advisors concerning the treatment of Consent Fees and the possibility of obtaining a refund of any U.S. federal withholding tax.
 
Dividends on Depositary Shares.  Except as described below, if you are a non-U.S. holder that acquires our Depositary Shares in the Exchange Offer, dividends paid to you are subject to withholding of U.S. federal income tax at a 30% rate or at a lower rate if you are eligible for the benefits of an income tax treaty that


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provides for a lower rate. Even if you are eligible for a lower treaty rate, we and other payors will generally be required to withhold at a 30% rate (rather than the lower treaty rate) on dividend payments to you, unless you have furnished to us or another payor:
 
  •  a valid IRS Form W-8BEN or an acceptable substitute form upon which you certify, under penalties of perjury, your status as a non-U.S. person and your entitlement to the lower treaty rate with respect to such payments, or
 
  •  in the case of payments made outside the United States to an offshore account (generally, an account maintained by you at an office or branch of a bank or other financial institution at any location outside the United States), other documentary evidence establishing your entitlement to the lower treaty rate in accordance with U.S. Treasury regulations.
 
If you are eligible for a reduced rate of U.S. federal withholding tax under a tax treaty, you may obtain a refund of any amounts withheld in excess of that rate by filing a refund claim with the IRS.
 
If dividends paid to you are effectively connected with your conduct of a trade or business within the United States, and, if required by a tax treaty, the dividends are attributable to a permanent establishment (or fixed base, in the case of an individual) that you maintain in the United States, we and other payors generally are not required to withhold tax from the dividends, provided that you have furnished to us or another payor a valid IRS Form W-8ECI or an acceptable substitute form upon which you represent, under penalties of perjury, that:
 
  •  you are a non-U.S. person, and
 
  •  the dividends are effectively connected with your conduct of a trade or business within the United States and are includible in your gross income.
 
For the treatment of any dividends that are effectively connected with a non-U.S. holder’s conduct of a U.S. trade or business, see below under ‘‘— Effectively Connected Income.”
 
Gain on Disposition of Depositary Shares.  If you are a non-U.S. holder, you generally will not be subject to U.S. federal income tax on gain that you recognize on a disposition of Depositary Shares unless:
 
  •  the gain is effectively connected with your conduct of a trade or business in the United States, and the gain is attributable to a permanent establishment or fixed base, in the case of an individual, that you maintain in the United States, if that is required by an applicable income tax treaty as a condition for subjecting you to U.S. federal income taxation on a net income basis;
 
  •  you are an individual, you are present in the United States for 183 or more days in the taxable year of the sale and certain other conditions exist, in which case the gain will be subject to U.S. federal income tax at a 30% rate but may be offset by U.S. source capital losses; or
 
  •  we are or have been a USRPHC for U.S. federal income tax purposes; provided that you will not be subject to U.S. federal income tax on the gain on a disposition of Depositary Shares if either (1) our Preferred Stock is regularly traded on an established securities market in the year of your disposition and you did not hold, directly or indirectly, more than 5% of our Preferred Stock at any time during the five-year period ending on the date of disposition or (2) you are eligible for any treaty exemption. We have not been, are not, and do not anticipate becoming a USRPHC for U.S. federal income tax purposes.
 
Effectively Connected Income.  Any gain or income recognized by a non-U.S. holder with respect to the Exchange Offer or ownership or disposition of the Depositary Shares that is effectively connected with a non-U.S. holder’s U.S. trade or business (and if required by an applicable income tax treaty, attributable to a permanent establishment maintained by the non-U.S. holder in the United States) generally will be subject to U.S. federal income tax on a net income basis in the same manner as if such non-U.S. holder were a U.S. holder. A non-U.S. holder that is a foreign corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) of a portion of its effectively


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connected earnings and profits for the taxable year. Non-U.S. holders should consult any applicable income tax treaties that may provide for different rules.
 
Federal Estate Taxes.  Depositary Shares held by an individual non-U.S. holder at the time of death will be included in the holder’s gross estate for U.S. federal estate tax purposes, unless an applicable estate tax treaty provides otherwise.
 
Recent Legislation Imposing Additional Disclosure Requirements on Foreign Entities
 
Non-U.S. holders should be aware of recent legislation that, beginning on January 1, 2013, would impose a 30% withholding tax on certain payments (which could include dividends in respect of our Depositary Shares and gross proceeds from the sale or other disposition of our Depositary Shares) made to a foreign entity that fails to disclose the identity of its direct or indirect “substantial United States owners” or to certify that it has no such owners. Various exceptions are provided under the legislation and additional exceptions may be provided by subsequent guidance. Non-U.S. holders should consult with their own tax advisors regarding the potential application and impact of these new requirements based upon their particular circumstances.
 
Backup Withholding and Information Reporting
 
In general, if you are a U.S. holder, you will be subject to information reporting with respect to payments made to you pursuant to the Exchange Offer and the Consent Solicitation, unless you are an exempt recipient and appropriately establish that exemption. If you are a U.S. holder that acquires our Depositary Shares in the Exchange Offer, you will be subject to information reporting with respect to any dividend payments by us to you and proceeds of the sale or other disposition by you of our Depositary Shares, unless you are an exempt recipient and appropriately establish that exemption. In addition, such payments will be subject to U.S. federal backup withholding tax (currently at a 28% rate), unless you supply a taxpayer identification number, certified under penalties of perjury, as well as certain other information or otherwise establish an exemption from backup withholding. Any amounts withheld under the backup withholding rules will be allowed as a credit against your U.S. federal income tax liability, provided the required information is timely furnished to the IRS.
 
If you are a non-U.S. holder, you are generally exempt from backup withholding and information reporting requirements (other than certain information reporting required on U.S. federal withholding tax on form 1042-S) with respect to:
 
  •  payments made to you pursuant to the Exchange Offer and the Consent Solicitation;
 
  •  dividend payments; and
 
  •  the payment of the proceeds from the sale of Depositary Shares effected at a U.S. office of a broker,
 
as long as:
 
  •  the payor or broker does not have actual knowledge or reason to know that you are a U.S. person and you have furnished to the payor or broker:
 
  •  a valid IRS Form W-8BEN or an acceptable substitute form upon which you certify, under penalties of perjury, that you are a non-U.S. person; or
 
  •  other documentation upon which it may rely to treat the payments as made to a non-U.S. person in accordance with U.S. Treasury regulations; or
 
  •  you otherwise establish an exemption (such as your corporate status).
 
Payment of the proceeds from the sale of Depositary Shares effected at a foreign office of a broker generally will not be subject to information reporting or backup withholding. However, a sale of Depositary Shares that is effected at a foreign office of a broker will be subject to information reporting and backup withholding if:
 
  •  the proceeds are transferred to an account maintained by you in the United States;


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  •  the payment of proceeds or the confirmation of the sale is mailed to you at a U.S. address; or
 
  •  the sale has some other specified connection with the United States as provided in U.S. Treasury regulations,
 
unless the broker does not have actual knowledge or reason to know that you are a U.S. person and the documentation requirements described above are met or you otherwise establish an exemption.
 
In addition, a sale of Depositary Shares will be subject to information reporting if it is effected at a foreign office of a broker that is:
 
  •  a U.S. person;
 
  •  a controlled foreign corporation for U.S. federal income tax purposes;
 
  •  a foreign person, 50% or more of whose gross income is effectively connected with the conduct of a U.S. trade or business for a specified three-year period; or
 
  •  a foreign partnership, if at any time during its tax year:
 
  •  one or more of its partners are “U.S. persons,” as defined in U.S. Treasury regulations, who in the aggregate hold more than 50% of the income or capital interest in the partnership, or
 
  •  such foreign partnership is engaged in the conduct of a U.S. trade or business,
 
unless the broker does not have actual knowledge or reason to know that you are a U.S. person and the documentation requirements described above are met or you otherwise establish an exemption. Backup withholding will apply if the sale is subject to information reporting and the broker has actual knowledge that you are a U.S. person.
 
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your U.S. federal income tax liability by timely filing a refund claim with the IRS. Payments subject to U.S. federal withholding tax will not also be subject to U.S. federal backup withholding tax.


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BENEFIT PLAN INVESTOR CONSIDERATIONS
 
The following is a summary of certain considerations associated with the exchange of the Normal ITS for Depositary Shares by a pension, profit-sharing or other employee benefit plan subject to the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”) (each, a “Plan”).
 
A fiduciary with respect to any assets of a Plan should consider the fiduciary standards of ERISA in the context of the Plan’s particular circumstances before authorizing an exchange of Normal ITS for Depositary Shares. Among other factors, the fiduciary should consider whether the investment in Depositary Shares would satisfy the prudence and diversification requirements of ERISA and would be consistent with the documents and instruments governing the Plan, and whether the investment would involve a prohibited transaction under ERISA or the U.S. Internal Revenue Code (the “Code”).
 
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well as individual retirement accounts, Keogh plans and any other plans that are subject to Section 4975 of the Code (the “Plans”), from engaging in certain transactions involving “plan assets” with persons who are “parties in interest” under ERISA or “disqualified persons” under the Code with respect to the Plan. A violation of these prohibited transaction rules may result in excise tax or other liabilities under ERISA or the Code for those persons, unless exemptive relief is available under an applicable statutory, regulatory or administrative exemption. Employee benefit plans that are governmental plans (as defined in Section 3(32) of ERISA), certain church plans (as defined in Section 3(33) of ERISA) and non-U.S. plans (as described in Section 4(b)(4) of ERISA) (“Non-ERISA Arrangements”) are not subject to the requirements of Section 406 of ERISA or Section 4975 of the Code but may be subject to similar provisions under applicable federal, state, local, non-U.S or other laws (“Similar Laws”).
 
The exchange of Normal ITS for Depositary Shares by a Plan or any entity whose underlying assets include “plan assets” by reason of any Plan’s investment in the entity (a “Plan Asset Entity”) with respect to which we or certain of our affiliates is or becomes a party in interest or disqualified person may result in a prohibited transaction under ERISA or Section 4975 of the Code, unless the Depositary Shares are acquired pursuant to an applicable exemption. The U.S. Department of Labor has issued five prohibited transaction class exemptions, or “PTCEs,” that may provide exemptive relief if required for direct or indirect prohibited transactions that may arise from the exchange of the Normal ITS for Depositary Shares. These exemptions are PTCE 84-14 (for certain transactions determined by independent qualified professional asset managers), PTCE 90-1 (for certain transactions involving insurance company pooled separate accounts), PTCE 91-38 (for certain transactions involving bank collective investment funds), PTCE 95-60 (for transactions involving certain insurance company general accounts), and PTCE 96-23 (for transactions managed by in-house asset managers). In addition, ERISA Section 408(b)(17) and Section 4975(d)(20) of the Code may provide an exemption for the acquisition of Depositary Shares, provided that neither the issuer of securities offered hereby nor any of its affiliates have or exercise any discretionary authority or control or render any investment advice with respect to the assets of any Plan involved in the transaction, and provided further that the Plan pays no more and receives no less than “adequate consideration” in connection with the transaction (the “service provider exemption”). There can be no assurance that all of the conditions of any such exemptions will be satisfied.
 
Any person exchanging Normal ITS for Depositary Shares will be deemed to have represented by its acquisition and holding of Depositary Shares offered hereby that it either (1) is not a Plan, a Plan Asset Entity or a Non-ERISA Arrangement and is not acquiring the Depositary Shares on behalf of or with the assets of any Plan, a Plan Asset Entity or Non-ERISA Arrangement or (2) the exchange of Normal ITS for Depositary Shares will not constitute a non-exempt prohibited transaction or a similar violation under any applicable Similar Laws.
 
Due to the complexity of these rules and the penalties that may be imposed upon persons involved in non-exempt prohibited transactions, it is important that fiduciaries or other persons considering participating in the exchange on behalf of or with the assets of any Plan, a Plan Asset Entity or Non-ERISA Arrangement consult with their counsel regarding the availability of exemptive relief under any of the PTCEs listed above, the service provider exemption or the potential consequences under Similar Laws, as applicable. Participants in the exchange have exclusive responsibility for ensuring that their acquisition of Depositary Shares does not violate the fiduciary or prohibited transaction rules of ERISA or the Code or any similar provisions of Similar


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Laws. The exchange of any Normal ITS for Depositary Shares by a Plan, Plan Asset Entity or Non-ERISA Arrangement is in no respect a representation by us or any of our affiliates or representatives that such an investment meets all relevant legal requirements with respect to investments by any such Plans, Plan Asset Entities or Non-ERISA Arrangements generally or any particular Plan, Plan Asset Entity or Non-ERISA Arrangement or that such investment is appropriate for such Plans, Plan Asset Entities or Non-ERISA Arrangements generally or any particular Plan, Plan Asset Entity or Non-ERISA Arrangement.
 
LEGAL MATTERS
 
The validity of the Preferred Stock and Depositary Shares to be issued in the Exchange Offer will be passed upon for us by Squire, Sanders & Dempsey L.L.P., Cincinnati, Ohio. The Dealer Managers are being represented by Shearman & Sterling LLP, New York, New York.
 
EXPERTS
 
The consolidated financial statements of U.S. Bancorp incorporated by reference in U.S. Bancorp’s Annual Report on Form 10-K for the year ended December 31, 2009, and the effectiveness of U.S. Bancorp’s internal control over financial reporting as of December 31, 2009, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon, incorporated by reference therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing.


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(COMPANY LOGO)
 
The Exchange Agent and Information Agent
for the Exchange Offer and the Consent Solicitation is:
 
D.F. King & Co., Inc.
 
By Mail, Hand or Overnight Delivery:
 
48 Wall Street, 22nd Floor
New York, NY 10005
Attn: Elton Bagley
 
By Facsimile (For Eligible Institutions Only):
(212) 809-8838
Attn: Elton Bagley
Confirmation by Telephone:
(212) 493-6996
 
Banks & Brokers call: (212) 269-5550
Toll-Free: (800) 848-2998
Email: USB@dfking.com
 
Lead Dealer Manager and Structuring Advisor
 
Deutsche Bank Securities Inc.
 
60 Wall Street
New York, NY 10005
Collect: (212) 250-2955
U.S. Toll-Free: (866) 627-0391
Attn: Liability Management Group
 
Co-Dealer Manager
 
U.S. Bancorp Investments, Inc.
 
214 N. Tryon Street, 26th Floor
Charlotte, NC 28202
Collect: (612) 336-7609
U.S. Toll-Free: (877) 558-2607
Attn: High Grade Syndicate Desk


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PART II
 
INFORMATION NOT REQUIRED IN PROSPECTUS
 
Item 20.   Indemnification of Directors and Officers.
 
Section 145 of the Delaware General Corporation Law contains detailed provisions for indemnification of directors and officers of Delaware corporations against expenses, judgments, fines and settlements in connection with litigation.
 
Article Eighth of U.S. Bancorp’s Restated Certificate of Incorporation, as amended, provides that a director will not be personally liable to U.S. Bancorp or its stockholders for monetary damages for breach of fiduciary duty by such director as a director, (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under the Delaware statutory provision making directors personally liable for unlawful dividends or unlawful stock repurchases or redemptions, or (iv) for any transaction from which the director derived an improper personal benefit.
 
Article VI of the Amended and Restated Bylaws of U.S. Bancorp provides that U.S. Bancorp shall indemnify to the fullest extent permitted by Delaware law any person made, or threatened to be made, a party to any action, suit, or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person (i) is or was a director, advisory director, or officer of U.S. Bancorp or any predecessor of U.S. Bancorp or (ii) is or was a director, advisory director or officer of U.S. Bancorp or any predecessor of U.S. Bancorp and served any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise as a director, advisory director, officer, partner, trustee, employee or agent at the request of the Corporation or any predecessor of U.S. Bancorp.
 
U.S. Bancorp maintains a standard policy of officers’ and directors’ insurance.
 
Item 21.   Exhibits and Financial Statement Schedules.
 
         
Exhibit
   
No.
 
Description
 
  1     Dealer Manager Agreement (filed herewith).
  3 .1   Restated Certificate of Incorporation, as amended, incorporated by reference to Exhibit 3.1 to U.S. Bancorp’s Quarterly Report on Form 10-Q, for the period ended June 30, 2009, dated August 10, 2009.
  3 .2   Amended Certificate of Designations of the Company with respect to Series A Non-Cumulative Perpetual Preferred Stock.*
  3 .3   Amended and Restated Bylaws, incorporated by reference to Exhibit 3.2 to U.S. Bancorp’s Current Report on Form 8-K dated January 20, 2010.
  4 .1   Junior Subordinated Indenture, dated as of April 28, 2005, between U.S. Bancorp and Delaware Trust Company, National Association, as Trustee (the “Junior Subordinated Indenture”), incorporated by reference to Exhibit 4.2.3 to U.S. Bancorp’s Registration Statement on Form S-3, Commission Nos. 333-124535 and 333-124535-02, dated May 2, 2005.
  4 .2   First Supplemental Indenture to Junior Subordinated Indenture, dated as of August 3, 2005, incorporated by reference to Exhibit 4.2 to U.S. Bancorp’s Registration Statement on Form 8-A (File No. 01-06880) dated August 11, 2005.
  4 .3   Second Supplemental Indenture to Junior Subordinated Indenture dated as of December 29, 2005, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated December 29, 2005.
  4 .4   Third Supplemental Indenture to Junior Subordinated Indenture, dated as of March 17, 2006, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated March 17, 2006.
  4 .5   Fourth Supplemental Indenture to Junior Subordinated Indenture, dated as of April 12, 2006, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated April 12, 2006.


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Exhibit
   
No.
 
Description
 
  4 .6   Fifth Supplemental Indenture to Junior Subordinated Indenture, dated as of August 30, 2006, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated August 30, 2006.
  4 .7   Sixth Supplemental Indenture to Junior Subordinated Indenture, dated as of February 1, 2007, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated February 1, 2007.
  4 .8   Seventh Supplemental Indenture to Junior Subordinated Indenture, dated as of December 10, 2009, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated December 10, 2009.
  4 .9   Form of Eighth Supplemental Indenture to Junior Subordinated Indenture (filed herewith).
  4 .10   Restated Certificate of Trust of USB Capital IX, incorporated by reference to Exhibit 4.14 to U.S. Bancorp’s Post-Effective Amendment No. 1 to Form S-3, Commission Nos. 333-132297 and 333-132297-01, dated March 10, 2006.
  4 .11   Amended and Restated Trust Agreement of USB Capital IX.
  4 .11.1   Form of Amendment No. 1 to the Amended and Restated Trust Agreement of USB Capital IX (filed herewith).
  4 .12   Guarantee Agreement, dated as of March 17, 2006.
  4 .13   Stock Purchase Contract Agreement between the Company and USB Capital IX, acting through Wilmington Trust Company as Property Trustee, dated as of March 17, 2006 (the “Stock Purchase Contract Agreement”), incorporated by reference to Exhibit 10.1 to U.S. Bancorp’s Current Report on Form 8-K dated March 17, 2006.
  4 .14.1   Form of Amended and Restated Stock Purchase Contract Agreement (filed herewith).
  4 .15   Deposit Agreement.*
  4 .16   Form of Remarketable Junior Subordinated Note due 2042 (included in Exhibit 4.4).
  4 .17   Form of Normal ITS Certificate (included in Exhibit 4.11).
  4 .18   Form of Stripped ITS Certificate (included in Exhibit 4.11).
  4 .19   Form of Capital ITS Certificate (included in Exhibit 4.11).
  4 .20   Form of Depositary Receipt (included in Exhibit 4.15).*
  5 .1   Opinion of Squire, Sanders & Dempsey L.L.P. with respect to the validity of the Preferred Stock and Depositary Shares being registered (filed herewith).
  8 .1   Opinion of Squire, Sanders & Dempsey L.L.P. with respect to certain tax matters (filed herewith).
  10 .1   Collateral Agreement among the U.S. Bancorp, U.S. Bank National Association, as Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar and USB Capital IX, acting through Wilmington Trust Company, as Property Trustee, dated as of March 17, 2006 (the “Collateral Agreement”), incorporated by reference to Exhibit 10.1 to U.S. Bancorp’s Current Report on Form 8-K dated March 17, 2006.
  10 .1.1   Form of Amended and Restated Collateral Agreement (filed herewith).
  12 .1   Computation of Ratio of Earnings to Fixed Charges, incorporated by reference to Exhibit 12 to U.S. Bancorp’s Annual Report on Form 10-K, for the year ended December 31, 2009, filed on February 26, 2010.
  12 .2   Computation of Ratio of Earnings to Fixed Charges, incorporated by reference to Exhibit 12 to U.S. Bancorp’s Annual Report on Form 10-Q, for the quarter ended March 31, 2010, filed on May [7], 2010.
  13 .1   Pages 18 through 139 of U.S. Bancorp 2009 Annual Report, incorporated by reference to Exhibit 13 to U.S. Bancorp’s Annual Report on Form 10-K, for the year ended December 31, 2009, filed on February 26, 2010.
  21 .1   Subsidiaries of U.S. Bancorp, incorporated by reference to Exhibit 21 to U.S. Bancorp’s Annual Report on Form 10-K, for the period ended December 31, 2009, dated February 26, 2010.
  23 .1   Consent of Ernst & Young LLP (filed herewith).

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Exhibit
   
No.
 
Description
 
  23 .2   Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5).
  24 .1   Power of Attorney (filed herewith).
  99 .1   Form of Letter of Transmittal and Consent (filed herewith).
  99 .2   Form of Notice of Withdrawal and Revocation (filed herewith).
 
 
* To be filed by amendment.
 
Item 22.   Undertakings.
 
The undersigned registrant hereby undertakes:
 
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
 
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
 
(ii) to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
 
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
 
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
 
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
 
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
 
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
 
(i) any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
 
(ii) any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;

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(iii) the portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
 
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
 
(5) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
 
(6) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
 
(7) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first-class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
 
(8) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.


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SIGNATURES
 
Pursuant to the requirements of the Securities Act of 1933, as amended, U.S. Bancorp has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on May 10, 2010.
 
U.S. BANCORP
 
  By: 
/s/  Richard K. Davis
Richard K. Davis
Chairman, President and Chief Executive
Officer
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed on May 10, 2010 by the following persons in the capacities indicated.
 
     
   
Signature and Title
 
     
By:
 
/s/  Richard K. Davis

Richard K. Davis
Chairman, President and Chief Executive Officer
(principal executive officer)
     
By:
 
/s/  Andrew Cecere

Andrew Cecere
Vice Chairman and Chief Financial Officer
(principal financial officer)
     
By:
 
/s/  Terrance R. Dolan

Terrance R. Dolan
Executive Vice President and Controller
(principal accounting officer)
     
By:
 
/s/  Douglas M. Baker, Jr.*

Douglas M. Baker, Jr., Director
     
By:
 
/s/  Y. Marc Belton*

Y. Marc Belton, Director
     
By:
 
/s/  Victoria Buyniski Gluckman*

Victoria Buyniski Gluckman, Director
     
By:
 
/s/  Arthur D. Collins, Jr.*

Arthur D. Collins, Jr., Director
     
By:
 
/s/  Joel W. Johnson*

Joel W. Johnson, Director
     
By:
 
/s/  Olivia F. Kirtley*

Olivia F. Kirtley, Director
     
By:
 
/s/  Jerry W. Levin*

Jerry W. Levin, Director


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Signature and Title
 
     
By:
 
/s/  David B. O’Maley*

David B. O’Maley, Director
     
By:
 
/s/  O’Dell M. Owens, M.D., M.P.H.*

O’Dell M. Owens, M.D., M.P.H., Director
     
By:
 
/s/  Richard G. Reiten*

Richard G. Reiten, Director
     
By:
 
/s/  Craig D. Schnuck*

Craig D. Schnuck, Director
     
By:
 
/s/  Patrick T. Stokes*

Patrick T. Stokes, Director
 
 
* Lee R. Mitau, by signing his name hereto, does hereby sign this document on behalf of each of the above named directors of the registrant pursuant to powers of attorney duly executed by such persons.
 
By: 
/s/  Lee R. Mitau
Lee R. Mitau
Attorney-In-Fact
Executive Vice President,
General Counsel and Corporate Secretary
 
Dated: May 10, 2010

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Index to Exhibits
 
         
Exhibit
   
No.
 
Description
 
  1     Dealer Manager Agreement (Filed herewith).
  3 .1   Restated Certificate of Incorporation, as amended, incorporated by reference to Exhibit 3.1 to U.S. Bancorp’s Quarterly Report on Form 10-Q, for the period ended June 30, 2009, dated August 10, 2009.
  3 .2   Amended Certificate of Designations of the Company with respect to Series A Non-Cumulative Perpetual Preferred Stock.*
  3 .3   Amended and Restated Bylaws, incorporated by reference to Exhibit 3.2 to U.S. Bancorp’s Current Report on Form 8-K dated January 20, 2010.
  4 .1   Junior Subordinated Indenture, dated as of April 28, 2005, between U.S. Bancorp and Delaware Trust Company, National Association, as Trustee (the “Junior Subordinated Indenture”), incorporated by reference to Exhibit 4.2.3 to U.S. Bancorp’s Registration Statement on Form S-3, Commission Nos. 333-124535 and 333-124535-02, dated May 2, 2005.
  4 .2   First Supplemental Indenture to Junior Subordinated Indenture, dated as of August 3, 2005, incorporated by reference to Exhibit 4.2 to U.S. Bancorp’s Registration Statement on Form 8-A (File No. 01-06880) dated August 11, 2005.
  4 .3   Second Supplemental Indenture to Junior Subordinated Indenture dated as of December 29, 2005, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated December 29, 2005.
  4 .4   Third Supplemental Indenture to Junior Subordinated Indenture, dated as of March 17, 2006, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated March 17, 2006.
  4 .5   Fourth Supplemental Indenture to Junior Subordinated Indenture, dated as of April 12, 2006, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated April 12, 2006.
  4 .6   Fifth Supplemental Indenture to Junior Subordinated Indenture, dated as of August 30, 2006, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated August 30, 2006.
  4 .7   Sixth Supplemental Indenture to Junior Subordinated Indenture, dated as of February 1, 2007, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated February 1, 2007.
  4 .8   Seventh Supplemental Indenture to Junior Subordinated Indenture, dated as of December 10, 2009, incorporated by reference to Exhibit 4.1 to U.S. Bancorp’s Current Report on Form 8-K dated December 10, 2009.
  4 .9   Form of Eighth Supplemental Indenture to Junior Subordinated Indenture (filed herewith).
  4 .10   Restated Certificate of Trust of USB Capital IX, incorporated by reference to Exhibit 4.14 to U.S. Bancorp’s Post-Effective Amendment No. 1 to Form S-3, Commission Nos. 333-132297 and 333-132297-01, dated March 10, 2006.
  4 .11   Amended and Restated Trust Agreement of USB Capital IX.
  4 .11.1   Form of Amendment No. 1 to the Amended and Restated Trust Agreement of USB Capital IX (filed herewith).
  4 .12   Guarantee Agreement, dated as of March 17, 2006.
  4 .13   Stock Purchase Contract Agreement between the Company and USB Capital IX, acting through Wilmington Trust Company as Property Trustee, dated as of March 17, 2006 (the “Stock Purchase Contract Agreement”), incorporated by reference to Exhibit 10.1 to U.S. Bancorp’s Current Report on Form 8-K dated March 17, 2006.
  4 .14.1   Form of Amended and Restated Stock Purchase Contract Agreement (filed herewith).
  4 .15   Deposit Agreement.*
  4 .16   Form of Remarketable Junior Subordinated Note due 2042 (included in Exhibit 4.4).
  4 .17   Form of Normal ITS Certificate (included in Exhibit 4.11).
  4 .18   Form of Stripped ITS Certificate (included in Exhibit 4.11).
  4 .19   Form of Capital ITS Certificate (included in Exhibit 4.11).


Table of Contents

         
Exhibit
   
No.
 
Description
 
  4 .20   Form of Depositary Receipt (included in Exhibit 4.15).*
  5 .1   Opinion of Squire, Sanders & Dempsey L.L.P. with respect to the validity of the Preferred Stock and Depositary Shares being registered (filed herewith).
  8 .1   Opinion of Squire, Sanders & Dempsey L.L.P. with respect to certain tax matters (filed herewith)
  10 .1   Collateral Agreement among the U.S. Bancorp, U.S. Bank National Association, as Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar and USB Capital IX, acting through Wilmington Trust Company, as Property Trustee, dated as of March 17, 2006 (the “Collateral Agreement”), incorporated by reference to Exhibit 10.1 to U.S. Bancorp’s Current Report on Form 8-K dated March 17, 2006.
  10 .1.1   Form of Amended and Restated Collateral Agreement (filed herewith).
  12 .1   Computation of Ratio of Earnings to Fixed Charges, incorporated by reference to Exhibit 12 to U.S. Bancorp’s Annual Report on Form 10-K, for the year ended December 31, 2009, filed on February 26, 2010.
  12 .2   Computation of Ratio of Earnings to Fixed Charges, incorporated by reference to Exhibit 12 to U.S. Bancorp’s Annual Report on Form 10-Q, for the quarter ended March 31, 2010, filed on May 7, 2010.
  13 .1   Pages 18 through 139 of U.S. Bancorp 2009 Annual Report, incorporated by reference to Exhibit 13 to U.S. Bancorp’s Annual Report on Form 10-K, for the year ended December 31, 2009, filed on February 26, 2010.
  21 .1   Subsidiaries of U.S. Bancorp, incorporated by reference to Exhibit 21 to U.S. Bancorp’s Annual Report on Form 10-K, for the period ended December 31, 2009, dated February 26, 2010.
  23 .1   Consent of Ernst & Young LLP (filed herewith).
  23 .2   Consent of Squire, Sanders & Dempsey L.L.P. (included in Exhibit 5.1).
  24 .1   Power of Attorney (filed herewith).
  99 .1   Form of Letter of Transmittal and Consent (filed herewith).
  99 .2   Form of Notice of Withdrawal and Revocation (filed herewith).
 
 
* To be filed by amendment.

EX-1 2 c58008exv1.htm EX-1 exv1
Exhibit 1
DEALER MANAGER AGREEMENT
May 10, 2010
DEUTSCHE BANK SECURITIES INC.
60 Wall Street
New York, New York 10005
As Representative of the Dealer Managers
Ladies and Gentlemen:
          U.S. Bancorp, a Delaware corporation (the “Company”), proposes to commence an exchange offer for any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal Income Trust Securities, liquidation amount $1,000 per security (the “Old Securities”) of USB Capital IX, a statutory trust created under the laws of the State of Delaware (the “Trust”), in exchange for up to 1,250,000 Depositary Shares (the “New Securities”), each representing a 1/100th interest in a share of Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share of the Company (the “Preferred Stock”) (such exchange offer, as the same may from time to time be amended and/or supplemented, the “Exchange Offer,”), upon the terms and subject to the conditions set forth in the Exchange Materials, as defined below. The New Securities will be issued in exchange for the Old Securities that are properly tendered and not withdrawn prior to the expiration of the Exchange Offer (the date on which the New Securities are issued in the Exchange Offer and the Old Securities are exchanged in the Exchange Offer, the “Exchange Date”) and are accepted pursuant to the terms of the Exchange Offer.
          The New Securities will be issued pursuant to a deposit agreement (the “Deposit Agreement”) to be entered into on the Exchange Date between the Company and U.S. Bank National Association as depositary (the “New Securities Depositary”).
          In connection with the Exchange Offer, the Company is also soliciting (the “Solicitation”) consents (the “Consents”) from the holders of the Old Securities to the adoption of proposed amendments (the “Proposed Amendments”) to (i) the Amended and Restated Trust Agreement, dated as of March 17, 2006 (the “Trust Agreement”), by and among the Company, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees named therein, and the several Holders of the Trust Securities (as defined therein); (ii) the Junior Subordinated Indenture, dated as of April 28, 2005, between the Company and Delaware Trust Company, National Association (the “Original Trustee”) as amended and supplemented from time to time by supplemental indentures between the Company and the Wilmington Trust Company, as indenture trustee and successor trustee (the “Indenture Trustee”) (such amended and supplemented Junior Subordinated Indenture, the “Base Indenture”); (iii) $1.251 billion aggregate principal amount of Remarketable Junior Subordinated Notes, due 2042 (the “Junior Notes”), issued under the Base Indenture by the Company to the Trust; (iv) the Stock

 


 

Purchase Contract Agreement (the “Stock Purchase Contract Agreement”), dated as of March 17, 2006, between the Trust and the Company, pursuant to which the Trust agreed to purchase 12,510 Stock Purchase Contracts (each a “Stock Purchase Contract”), each having a stated amount of $100,000 and obligating the Trust to purchase from the Company, and the Company to sell to the Trust, subject to the terms hereof, one share of the Company’s Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share (the “Preferred Stock”), on the Stock Purchase Date provided for (and as defined in) the Stock Purchase Contract Agreement; and (v) the Collateral Agreement (the “Collateral Agreement”), dated as of March 17, 2006, between the Trust, the Company and U.S. Bank National Association, as collateral agent (the “Collateral Agent”), under which the Trust initially pledged the Junior Subordinated Notes to secure its obligation to purchase Preferred Stock under the Stock Purchase Contracts.
          In connection with the Solicitation, promptly upon receipt of the requisite Consents, (A) it is expected that (i) the Company and the Indenture Trustee will execute an Eighth Supplemental Indenture (the “Supplemental Indenture”) to the Base Indenture to give effect at the Expiration Date to the Proposed Amendments to the Base Indenture and the Junior Notes, (ii) the Company, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, and the Administrative Trustees named therein, will execute Amendment No. 1 to the Trust Agreement to give effect at the Expiration Date to the Proposed Amendments to the Trust Agreement (the “Trust Agreement Amendment”), (iii) the Company and the Trust will execute an amended and restated Stock Purchase Contract Agreement to give effect at the Expiration Date to the Proposed Amendments to the Stock Purchase Contract Agreement (the “Stock Purchase Contract Agreement Amendment”), and (iv) the Company, the Collateral Agent and the Trust will execute an amended and restated Collateral Agreement to give effect at the Expiration Date to the Proposed Amendments to the Collateral Agreement (the “Collateral Agreement Amendment”); and (B) immediately prior to the Exchange Date, it is expected that the Company will file with the Secretary of State of Delaware an amended Certificate of Designations for the Preferred Stock to give effect to certain amendments to the terms of the Preferred Stock as described in the Preliminary Prospectus, the Disclosure Package and the Prospectus and the issuance of the New Securities on the Exchange Date (the “Preferred Stock Amendment”).
          This agreement between the Company and the Dealer Managers shall be hereinafter referred to as the “Agreement.”
          The term “Transaction Documents” shall mean the documents set forth on Schedule I hereto.
          The Company hereby confirms its agreement with you as follows:
          1. Exchange Offer Materials. The Company agrees to furnish to you at the Company’s own expense as many copies as you may reasonably request of the Preliminary Prospectus and the Letter of Transmittal. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on

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Form S-4, including a prospectus and consent solicitation statement, relating to the New Securities. The registration statement as amended at the time it was declared effective under the Securities Act of 1933, as amended (the “Securities Act”), together with the documents incorporated by reference therein, is hereinafter referred to as the “Registration Statement.” Any preliminary prospectus and consent solicitation included in the Registration Statement on the Commencement Date or in any amendment thereto prior to the effectiveness of the Registration Statement (excluding the Prospectus) or any preliminary prospectus and consent solicitation filed with the Commission pursuant to Rule 424(a) under the Securities Act, together with the documents incorporated by reference therein, is hereinafter referred to as a “Preliminary Prospectus.” The prospectus and consent solicitation statement included in the Registration Statement at the time it was declared effective or, if used prior to the Expiration Date, the final prospectus filed pursuant to Rule 424(b) under the Securities Act, together with the documents incorporated by reference therein, is hereinafter referred to as the “Prospectus.” Any written communication made in connection with or relating to the Exchange Offer in reliance on Rule 165 of the Securities Act, and required to be filed by the Company with the Commission pursuant to Rule 425 under the Securities Act, is hereinafter referred to as “Rule 165 Material.” The Registration Statement, together with the Preliminary Prospectus and Prospectus, the related letter of transmittal and consent dated the Commencement Date to be used by holders of Old Securities exchanging Old Securities for New Securities in the Exchange Offer (the “Letter of Transmittal”), as the same may be supplemented or amended from time to time, any press releases or advertisements, to the extent applicable, expressly relating to the Exchange Offer, any Rule 165 Material, and any other written material filed with the Commission or furnished by or with the written consent of the Company to the holders of the Old Securities in connection with the Exchange Offer and the Solicitation, are herein collectively referred to as the “Exchange Materials.” The Company authorizes you to use the Exchange Materials in connection with the Exchange Offer and the Solicitation, without assuming responsibility for the accuracy, completeness or fairness of the statements contained therein, except with respect to any information furnished in writing by you, and you agree not to use any written material in connection therewith other than the Exchange Materials and such other written materials, if any, as the Company may provide or approve.
          The Dealer Managers hereby agree that, without the prior written consent of the Company (which consent the Company agrees will not be unreasonably withheld), each Dealer Manager will not hereafter publicly disseminate any written materials to holders of Old Securities for or in connection with the solicitation of tenders of Old Securities or Consents pursuant to the Exchange Offer or the Solicitation, other than the Exchange Materials, or make any representations to holders of Old Securities in connection with the solicitation of tenders of Old Securities or Consents pursuant to the Exchange Offer or the Solicitation, other than the Exchange Materials.
          The date on which the Preliminary Prospectus is filed with the Commission and the Exchange Materials are first mailed or otherwise distributed to holders of Old Securities is hereinafter referred to as the “Commencement Date.”

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          2. Retention. The Company hereby appoints and authorizes Deutsche Bank Securities Inc. and U.S. Bancorp Investments, Inc. as the dealer managers and solicitation agents (the “Dealer Managers” or “you”) and Deutsche Bank Securities Inc. as the “Representative” of the Dealer Managers in connection with the Exchange Offer and the Solicitation, until the Exchange Date and on the basis of the representations, warranties and agreements of the Company contained herein and subject to the terms and conditions hereof, you hereby accept such appointment upon the terms and subject to the conditions set forth in this Agreement. You agree, in accordance with customary practice, to perform those services in connection with the Exchange Offer and the Solicitation as are customarily performed by investment banks acting in such roles in connection with exchange offers and consent solicitations of a like nature, including but not limited to communicating generally regarding the Exchange Offer and the Solicitation with brokers, dealers, commercial banks, trust companies and other persons. The Company hereby agrees and acknowledges that you may, to the extent you deem appropriate, retain the services of any of your affiliates to assist you in providing your services hereunder.
     (a) The Company shall use its reasonable best efforts to furnish you, or cause the trustee or trustees under the Trust Agreement, to furnish you, as soon as practicable after the Commencement Date, with the names of the holders of Old Securities as of the Commencement Date and, to the extent available to the Company, together with their addresses and the number of Old Securities held by them. Additionally, the Company shall use its reasonable best efforts to update such information from time to time during the term of this Agreement as requested by you and to the extent such information is reasonably available to the Company within the time constraints specified.
     (b) The Company agrees that any reference to a Dealer Manager or the Dealer Managers in any Exchange Materials or in any press release or other document or communication relating to the Exchange Offer and the Solicitation or your activities in connection therewith is subject to your prior approval. If you resign or your engagement hereunder is terminated prior to the dissemination of the Exchange Materials or any other release or communication, no reference shall be made therein to you, unless applicable law requires a reference to the Dealer Managers after such resignation or termination, in which case the Company agrees to provide you with prompt notice of such requirement and to provide you a reasonable opportunity to seek an appropriate protective order or other remedy.
     (c) The Company authorizes you to communicate with any information agent and exchange agent (the “Information Agent and Exchange Agent”) and any depositary designated or retained by the Company with respect to the Exchange Offer and the Solicitation (the “Depositary”) as to such matters regarding the Exchange Offer and the Solicitation as you may reasonably request.
     (d) In full payment for services rendered and to be rendered hereunder by you, the Company agrees to pay you fees and to reimburse you for expenses as follows:

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  (i)   on the Exchange Date, the Company shall pay to the Dealer Managers the fees calculated and payable as set forth in a letter addressed to the Dealer Managers dated the date hereof; and
 
  (ii)   whether or not any Old Securities are exchanged pursuant to the Exchange Offer, the Company shall pay all reasonable expenses incurred in connection with the preparation, printing, mailing and publishing of the Exchange Materials, and all amounts payable to securities dealers (including the Dealer Managers), brokers, banks, trust companies and nominees as reimbursements of their customary mailing and handling expenses incurred in forwarding the Exchange Materials to their customers, and of any forwarding agent, and all other expenses of the Company in connection with the Exchange Materials and shall reimburse the Dealer Managers for all reasonable out-of-pocket expenses as incurred by the Dealer Managers in connection with their services as Dealer Managers under this Agreement. If the Dealer Managers withdraw pursuant to Section 6 hereof or terminate this Agreement pursuant to Section 8 hereof, the Dealer Managers shall nevertheless be entitled to receive reimbursement of all expenses pursuant to this Section 2(d)(ii) which have accrued to the date of such withdrawal or termination, as the case may be. Any payments to be made by the Company to the Dealer Managers pursuant to this Section 2(d)(ii) shall be made promptly after the completion or termination of the Exchange Offer and the Solicitation.
          The Company shall perform its obligations to you set forth in this Section 2(d)(ii) and in Section 7 hereof whether or not the Exchange Offer and the Solicitation are commenced or the Company exchanges any Old Securities pursuant to the Exchange Offer.
          The Company acknowledges and agrees that the Dealer Managers are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the Exchange Offer and the Solicitation and not as financial advisors or fiduciaries to, or agents of, the Company or any other person. You shall act hereunder as an independent contractor and nothing contained herein shall make the Company or any of their affiliates, agents of you or any of your affiliates. Nothing contained in this Agreement shall constitute you a partner of or joint venturer with the Company or any of their affiliates. Additionally, the Dealer Managers are not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Dealer Managers shall have no responsibility or liability to the Company with respect thereto.
          3. Certain Covenants. The Company covenants with you as follows:
     (a) The Company will prepare the Exchange Materials and will file all Exchange Materials with the Commission to the extent required by the Securities Act and the Securities Exchange Act of 1934, as amended, and the rules and regulations of

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the Commission promulgated thereunder (the “Exchange Act”), as applicable, including all Rule 165 Material, and a final prospectus relating to the Registration Statement in accordance with Rule 424(b). The Company will furnish to the Dealer Managers and to counsel for the Dealer Managers, without charge, during the period beginning on the Commencement Date and continuing to and including the Exchange Date, (i) signed photostatic copies of the Registration Statement (and any amendment thereto), in each case including all exhibits and consents filed therewith, and (ii) copies of the Exchange Materials and any amendments and supplements thereto in such quantities as each Dealer Manager may reasonably request.
     (b) The Company will give you prior written notice of its intention to amend or supplement any Exchange Materials, will furnish you with copies of such amendment or supplement, and will not use any such amendment or supplement to which you or your counsel shall reasonably object in writing or which is not in compliance with the Securities Act or Exchange Act.
     (c) If, at any time prior to the Exchange Date, any event occurs as a result of which it shall be, in the reasonable judgment of the Company or its counsel or you or your counsel, necessary to amend or supplement any of the Exchange Materials in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it is necessary, in the reasonable judgment of any such person, at any time to amend or supplement any of the Exchange Materials to comply with the Securities Act, the Exchange Act or any other applicable law, rule or regulation, such person shall (i) promptly inform the Company and you (at which time the Dealer Managers shall be entitled to cease soliciting tenders until such time as the Company has complied with clause (ii) of this sentence), and (ii) (subject to Section 3(b) above) the Company shall promptly prepare, file or transmit for filing with the Commission, and furnish copies to you in such quantities as you may reasonably request, of such amendments or supplements to such Exchange Materials, so that either (A) the statements in the Exchange Materials, as so amended or supplemented, will not, in the light of the circumstances under which they were made, be misleading or (B) such compliance is effected.
     (d) The Company shall comply with the applicable provisions of the Securities Act and the rules and regulations of the Commission promulgated thereunder, and the Exchange Act, in connection with the Exchange Materials, the Exchange Offer and the Solicitation, the issuance of the New Securities and the Preferred Stock and the transactions contemplated hereby and thereby; the Company shall take on a timely basis all actions necessary or legally required in relation to the Exchange Offer and the Solicitation and all other actions contemplated by this Agreement and by the Exchange Materials, including the appropriate authorization by the Company of any amendments or modifications of the Exchange Offer.
     (e) The Company shall notify you prior to the time when it proposes to commence the Exchange Offer or, after commencement, to extend the Exchange Offer; and the Company shall advise or cause the Depositary to advise you upon your

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reasonable request from time to time during the period of, and promptly after the expiration of, the Exchange Offer, as to all names and addresses of the holders which have validly tendered their Old Securities for exchange and delivered their consent to the Proposed Amendments during the immediately preceding day, indicating the aggregate liquidation amount of Old Securities, verified to be in proper form for exchange, rejected for exchange, and being processed for exchange; and will notify you as promptly as practicable following expiration of the Exchange Offer and the Solicitation on the Expiration Date (as defined in the Preliminary Prospectus), of the aggregate liquidation amount of Old Securities in respect of which a tender has been verified to be in proper form, a tender has been rejected and which are being processed. The Company shall promptly give you notice of changes in the Expiration Date with respect to the Exchange Offer and the Solicitation. The Company shall not accept Old Securities for exchange unless the conditions to the obligations of each Dealer Manager set forth in Section 6 hereof have been satisfied.
     (f) The Company shall advise you promptly of (i) the occurrence of any event, or the discovery of any fact, which could reasonably be expected to cause the Company to amend, withdraw or terminate the Exchange Offer or the Solicitation, or amend or supplement any of the Exchange Materials, (ii) the occurrence of any event, or the discovery of any fact, which could reasonably be expected to cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) the filing and effectiveness of the Registration Statement or any amendment thereto, (iv) the mailing or the delivery to the Commission for filing of any Preliminary Prospectus or amendment or supplement to the Prospectus, any Rule 165 Material or any document to be filed pursuant to the Exchange Act which will be incorporated by reference in the Preliminary Prospectus or the Prospectus, (v) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus or any amendment or supplement thereto, (vi) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any Rule 165 Material or for additional information relating to the Exchange Offer, (vii) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threat of initiation of any proceedings for that purpose, (viii) of the suspension of qualification of the New Securities for offering or sale in any jurisdiction or the initiation or threat of initiation of any proceedings for that purpose, (ix) the issuance or the threatened issuance of any order or the taking of any other action by any administrative or judicial tribunal or governmental agency or instrumentality, or of any litigation or claim concerning the Exchange Offer and the Solicitation (and, if in writing, will promptly furnish you a copy thereof), and (x) any other information relating to the Exchange Offer which you may from time to time reasonably request. If an event specified in clauses (vii) or (viii) in the immediately preceding sentence occurs, 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

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suspension of qualification is issued, to obtain the lifting thereof at the earliest possible moment
     (g) The Company shall not commence the mailing of the Exchange Materials unless the conditions set forth in Section 6 that are required to be satisfied or complied with as of the Commencement Date shall have been satisfied and complied with prior to or concurrently with the commencement of such mailing or shall have otherwise been waived in writing by you.
     (h) The Company acknowledges and agrees that the Dealer Managers shall have no liability (in tort, contract or otherwise) to the Company, its affiliates or any other person for any losses, claims, damages, liabilities and expenses (each a “Loss” and, collectively, the “Losses”) arising from any act or omission on the part of any broker or dealer in securities (a “Dealer”), bank or trust company, or any other person in connection with the Exchange Offer and the Solicitation, and neither the Dealer Managers nor any of their affiliates shall be liable for any Losses arising from their own acts or omissions in performing their respective obligations as a Dealer Manager or as a Dealer in connection with the Exchange Offer and the Solicitation, except for any such Losses that are finally judicially determined to have resulted primarily from their bad faith, gross negligence or willful misconduct; provided, however, that nothing in this Agreement shall limit each Dealer Manager’s liability for breach of any express agreement made by such Dealer Manager in this Agreement. In soliciting or obtaining tenders of Old Securities, no Dealer, bank or trust company is to be deemed to be acting as the Dealer Managers’ agent or the agent of the Company or any of its affiliates, and the Dealer Managers shall not be deemed the agent of any Dealer, bank or trust company or a fiduciary of the Company or an agent or fiduciary of any of its affiliates, equity holders, creditors or of any other person. In soliciting or obtaining tenders of Old Securities, the Dealer Manager shall not be nor shall the Dealer Managers be deemed for any purpose to act as a partner or joint venturer of, or a member of a syndicate or group with, the Company or any of its affiliates in connection with the Exchange Offer and the Solicitation or each other, or any purchase of New Securities, and none of the Company or any of its affiliates shall be deemed to act as the Dealer Managers’ agents. The Company shall have sole authority for the acceptance or rejection of any and all tenders of Old Securities.
     (i) The Company will make generally available to its security holders (as defined in Rule 158) as soon as practicable, but not later than 45 days after the close of each of the first three fiscal quarters of each fiscal year and 90 days after the close of each fiscal year, earnings statements (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve month period beginning not later than the first day of the fiscal quarter next following the execution date of this Agreement.
     (j) Neither the Company nor any of its affiliates, as such term is defined in Rule 501(b) under the Securities Act (each, an “Affiliate”) will take, directly or indirectly, any action which is designed to or which has constituted or which would be

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expected to cause or result in stabilization or manipulation of the price of any security of the Trust or the Company in connection with the Exchange Offer.
     (k) The Company will endeavor, in cooperation with the Dealer Managers, to qualify the New Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as the Dealer Managers may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the New 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 New Securities have been qualified as above provided.
     (l) The Company will cause all Old Securities accepted in the Exchange Offer to be cancelled as described in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (m) The Company will assist the Dealer Managers in arranging for the New Securities to be eligible for clearance and settlement through The Depository Trust Company.
     (n) The Company will use its commercially-reasonable best efforts to list, subject to notice of issuance, the New Securities on the New York Stock Exchange.
     (o) The Company agrees that it will not make any written communications (other than non-public communications among participants (as such term is defined in Rule 165 of the Securities Act)) in connection with or related to the Exchange Offer that could constitute a “prospectus” for the purposes of Section 5(b)(1) of the Securities Act, except for any Preliminary Prospectus, the Prospectus and any Rule 165 Material, and to provide you with a copy of all Rule 165 Material promptly after filing of the same with the Commission. The Company will not amend or supplement the Exchange Materials or file any Exchange Materials with the Commission, without your prior written consent (which consent shall not be unreasonably withheld), unless required by applicable law. Prior to the earlier of the Exchange Date or the date of termination of the Exchange Offer and the Solicitation, the Company will not file any document under the Exchange Act unless, within a reasonable time prior to such proposed filing, the Company has furnished to you a copy of such document for review and has provided you with a reasonable opportunity to review such materials and provide comments to the Company.
          4. Expenses of the Company. In addition to the obligation of the Company to pay the fees of the Dealer Managers and to reimburse the Dealer Managers for their reasonable out-of-pocket expenses as provided in subsection 2(d) hereof, the Company agrees to pay all costs and expenses incident to the performance of the obligations of the Company under this Agreement, whether or not the transactions contemplated herein are consummated or this Agreement is terminated pursuant to Section 8 hereof, including, but not

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limited to, all costs and expenses incident to (a) the preparation, filing, printing, word processing, publishing or other production of documents with respect to such transactions, including any costs of printing the Exchange Materials and any amendments or supplements thereto and all other agreements relating to the Exchange Offer and the Solicitation or the distribution of any blue sky memoranda, (b) the customary mailing and handling (including postage, air freight charges and charges for counting and packaging) of such copies of the Exchange Materials and any amendments or supplements thereto as may, in each case, be reasonably requested for use in connection with the Exchange Offer, (c) all arrangements relating to the delivery to the Dealer Managers of copies of the foregoing documents, (d) the preparation, issuance and delivery of the New Securities, and the qualification of the New Securities under securities or “blue sky” laws of the several states or any non-U.S. jurisdiction, including filing fees and the reasonable fees and disbursements of counsel for the Dealer Managers, and including any stamp or transfer taxes in connection with the original issuance and sale of the New Securities, (e) the registration of the Exchange Offer and the New Securities under the Securities Act, (f) the listing of the New Securities on the New York Stock Exchange, (g) the fees and disbursements of counsel, accountants and any other experts or advisors retained by the Company and the Trust, (h) the fees and disbursements of the Information Agent and Exchange Agent and the Depositary, (i) the fees and disbursements of the Indenture Trustee, the trustees of the Trust, the Collateral Agent (including the fees and expenses of counsel to such trustees and the Collateral Agent in connection with the Transaction Documents) and (i) any costs and expenses of the Company incurred in connection with any meetings with holders of Old Securities relating to the Exchange Offer and the Solicitation.
          5. Representations and Warranties.
     The Company (on behalf of itself and each of its subsidiaries) represents and warrants to you that:
     (a) On (x) the Commencement Date, the Registration Statement complied, and on the Effective Date, the Registration Statement will comply, and (y) the date upon which the Prospectus is first filed in accordance with Rule 424(a) or Rule 424(b), as applicable, on the Expiration Date and on the Exchange Date, the Prospectus (and any supplements thereto) will comply, in all material respects with the applicable requirements of the Securities Act, the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the respective rules and regulations promulgated thereunder; on the Commencement Date, the Effective Date and the Exchange Date, the Registration Statement did not and will not contain any untrue statement of any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and on the date of any filing pursuant to Rule 424(a) or Rule 424(b), as applicable, as of its date (and on the date of any supplement thereto), on the Expiration Date and on the Exchange Date, the Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no

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representation or warranty is made with respect to any such statement or omission made in reliance upon and in conformity with information furnished in writing by you to the Company expressly for use therein.
     (b) No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Exchange Material, at the time of filing thereof, complied or will comply in all material respects with the Securities Act, and no Preliminary Prospectus, at the time of filing thereof, included or will include any 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; provided, however, that no representation or warranty is made with respect to any such statement or omission made in reliance upon and in conformity with information furnished in writing by you to the Company expressly for use therein. On the Expiration Date and on the Exchange Date, (i) the Prospectus, assuming for purposes of this clause (c) that the Prospectus was dated as of the Expiration Date, and (ii) any Rule 165 Material as supplemented or amended as of the Expiration Date (together, the “Disclosure Package”), when taken together as a whole, will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made with respect to any such statement or omission made in reliance upon and in conformity with information furnished in writing by you to the Company expressly for use therein.
     (c) The Rule 165 Material when filed with the Commission complied or will comply in all material respects with the applicable requirements of the Securities Act; and no Rule 165 Material, at the time of first use, when taken together with the Preliminary Prospectus as then amended or supplemented, contained or will contain any untrue statement of a material fact or omitted or will 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 made, not misleading; provided, however, that no representation or warranty is made with respect to any such statement or omission made in reliance upon and in conformity with information furnished in writing by you to the Company expressly for use therein.
     (d) At the Commencement Date, the Expiration Date and the Exchange Date, the Exchange Materials at such date (i) complied and will comply in all material respects with all applicable requirements of the laws of those jurisdictions in which solicitations of tenders and consents are or will be made in the Exchange Offer pursuant to this Agreement and (ii) did not and will not contain an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made with respect to any such statement or omission made in reliance upon and in conformity

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with information furnished in writing by you to the Company expressly for use therein.
     (e) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, any Preliminary Prospectus 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.
     (f) 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 own, lease and operate its properties and conduct its business as described in the Preliminary Prospectus, the Disclosure Package and the Prospectus; 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 do so to qualify or to be in good standing would not have a material adverse effect on the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries considered as one enterprise (a “Material Adverse Effect”).
     (g) U.S. Bank National Association, the Company’s principal subsidiary bank, has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Preliminary Prospectus, the 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.
     (h) Each of the Company and its subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization; and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; the Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) 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

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in preparing and evaluating the disclosures in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (i) The authorized capitalization of the Company is as set forth in the Preliminary Prospectus, the Disclosure Package and the Prospectus, and the shares of issued and outstanding capital stock set forth thereunder have been duly authorized and validly issued and are fully paid and non-assessable and conform to the descriptions thereof contained in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (j) This Agreement has been duly executed and delivered by the Company and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, arrangement, liquidation, conservatorship, readjustment of debt, fraudulent transfer and other similar laws affecting the rights of creditors generally, and (ii) the discretion of any court of competent jurisdiction in awarding equitable remedies, including, without limitation, acceleration, specific performance or injunctive relief, and the effect of general principles of equity.
     (k) The New Securities have been duly authorized by the Company and, when issued and delivered by the Company in exchange for the Old Securities, will be duly and validly issued and fully paid and nonassessable and will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (l) The Preferred Stock Amendment, the proposed form of which has been furnished to the Dealer Managers, will have been duly filed with the Secretary of State of the State of Delaware on or before the Exchange Date.
     (m) The Preferred Stock Amendment and the issuance of Preferred Stock pursuant to the Deposit Agreement has each been duly authorized by the Company and, upon filing of the Preferred Stock Amendment the Secretary of State of the State of Delaware on or before the Exchange Date and when issued and delivered by the Company in exchange for the Old Securities pursuant to the Deposit Agreement on the Exchange Date, the Preferred Stock will be duly and validly issued and fully paid and nonassessable and will conform in all material respects to the descriptions thereof contained in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (n) Each of (i) the Supplemental Indenture, (ii) the Trust Agreement Amendment, (iii) the Stock Purchase Contract Agreement Amendment, (iv) the Collateral Agreement Amendment, and (v) the Deposit Agreement, has been duly authorized by the Company and, when executed and delivered at or prior to the Exchange Date upon receipt of the requisite Consents to the Proposed Amendments, each of (v) the Base Indenture as supplemented by the Supplemental Indenture, (w) the Trust Agreement as amended by the Trust Agreement Amendment, (x) the Stock

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Purchase Contract Agreement Amendment, (y) the Collateral Agreement Amendment, and (z) the Deposit Agreement, will have been duly executed and delivered by the Company and will constitute a valid and legally binding instrument of the Company, enforceable in accordance with its respective terms, except as the enforceability thereof may be limited by (A) bankruptcy, insolvency, moratorium, reorganization, arrangement, liquidation, conservatorship, readjustment of debt, fraudulent transfer and other similar laws affecting the rights of creditors generally, and (B) the discretion of any court of competent jurisdiction in awarding equitable remedies, including, without limitation, acceleration, specific performance or injunctive relief, and the effect of general principles of equity.
     (o) Each of the Administrative Trustees is an employee of or affiliated with the Company and, when executed and delivered at or prior to the Exchange Date upon receipt of the requisite Consents to the Proposed Amendments, the Trust Agreement Amendment will have been duly executed and delivered by each Administrative Trustee and the Trust Agreement as amended by the Trust Agreement Amendment will constitute a valid and legally binding instrument of the Trust, enforceable in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, moratorium, reorganization, arrangement, liquidation, conservatorship, readjustment of debt, fraudulent transfer and other similar laws affecting the rights of creditors generally, and (ii) the discretion of any court of competent jurisdiction in awarding equitable remedies, including, without limitation, acceleration, specific performance or injunctive relief, and the effect of general principles of equity.
     (p) Each of the Transaction Documents that are described in the Preliminary Prospectus, the Disclosure Package and the Prospectus will conform in all material respects to the respective statements relating thereto in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (q) The Company has all the necessary power and authority to conduct and consummate the Exchange Offer and the Solicitation, issue the New Securities and the Preferred Stock in accordance with the terms of the Exchange Offer, execute, deliver and perform this Agreement and the Transaction Documents, and to consummate the transactions herein and therein contemplated. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the New Securities and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents, and the consummation of the transactions herein and therein contemplated, will not contravene any provision of applicable law, the Trust Agreement, the certificate of incorporation or bylaws of the Company or articles of association or bylaws of U.S. Bank National Association or any agreement or other instrument binding upon the Company or U.S. Bank National Association, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any subsidiary; and, no consent, authorization or order of, or filing or registration with, any court or governmental agency or authority is required for the conduct and consummation of the

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Exchange Offer or the Solicitation, the execution, delivery and performance by the Company of the Transaction Documents, issuance of the New Securities and the Preferred Stock in accordance with the terms of the Exchange Offer or the consummation of the transactions herein and therein contemplated, except such as have been made or obtained or will be made or obtained at or before the Exchange Date from the Board of Governors of the Federal Reserve System or in connection with the registration of the New Securities with the Commission pursuant to the Securities Act and except such as may be required under applicable state securities or “blue sky” laws.
     (r) 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 agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, which violation or default would be material to the Trust.
     (s) 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.
     (t) Each of the Company and the subsidiaries of the Company own or possess adequate trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Company nor any of the subsidiaries of the Company has received any notice of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect on the conduct of the business, operations, financial condition or income of the Trust or of the Company and its subsidiaries considered as one enterprise
     (u) 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 Trust or the Company or any of the subsidiaries of the Company, which may reasonably be expected to have a Material Adverse Effect, or which may reasonably be expected to materially and adversely affect the performance of this Agreement or the consummation of the transactions described in the Preliminary Prospectus, the Disclosure Package and the Prospectus; and there are no material contracts or documents of the Trust or the Company or any of the subsidiaries of the Company which are required to be filed as exhibits to the Registration Statement by the Act or by the rules and regulations of the Commission thereunder which have not been so filed.

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     (v) No labor dispute with the employees of the Company or any of its Subsidiaries exists, or to the knowledge of the Company, is imminent.
     (w) Ernst & Young LLP, who certified the financial statements, Company management’s assessment of internal controls and the Company’s internal controls included or incorporated by reference in the Preliminary Prospectus, the Disclosure Package and the Prospectus, is an independent registered public accounting firm as required by the Act and the Exchange Act and the rules and regulations issued by the Commission thereunder.
     (x) The financial statements of the Company and its consolidated subsidiaries included or incorporated by reference in the Preliminary Prospectus, the 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; said financial statements have been prepared in conformity with generally accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods involved.
     (y) 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 Trust or the Company in connection with the Exchange Offer.
     (z) 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”) and any instances of non-compliance have been resolved with the applicable governmental agency and no formal action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
     (aa) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any director, officer, agent, employee or other person associated with or acting on behalf of the Company or any of its subsidiaries, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment

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to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
     (bb) None of the Trust, 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 currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC.
     (cc) The Company and, to the best of its knowledge, its officers and directors are in compliance with applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”), including Section 402 related to loans and Sections 302 and 906 related to certifications.
     (dd) Since the respective dates as of which information is given in the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, except as otherwise stated therein or contemplated thereby, (A) there has not been any change in the capital stock or long-term debt of the Company or any of its subsidiaries, (B) there has been no Material Adverse Effect, whether or not arising in the ordinary course of business and (C) there have been no material transactions entered into by the Trust or the Company, or any of the subsidiaries of the Company other than those in the ordinary course of business.
     (ee) The statements set forth in the Preliminary Prospectus, the Disclosure Package and the Prospectus under the captions “Description of Preferred Stock,” “Description of Depositary Shares,” “Comparison of Rights Between the Normal ITS and the Depositary Shares,” and “The Exchange Offer and the Consent Solicitation—The Proposed Amendments,” insofar as such statements purport to summarize certain provisions of the documents referred to therein, fairly summarize such provisions in all material respects. The statements set forth in the Preliminary Prospectus, the Disclosure Package and the Prospectus under the captions “Material U.S. Federal Income Tax Consequences” and “Benefit Plan Investor Considerations,” insofar as such statements refer to statements of law or legal conclusions, fairly summarize the matters referred to therein in all material respects.
     (ff) The Company is not, and will not be as a result of the consummation of the Exchange Offer, an “investment company” that is required to be registered under the Investment Company Act of 1940, as amended or controlled by an entity required to be registered under the 1940 Act as an “investment company.”

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     (gg) There are no contracts, agreements or understandings among the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or who in connection with the issuance, sale and delivery of the New Securities and the execution, delivery and performance of this Agreement, have the right to request the Company to include such securities with the New Securities registered pursuant to the Registration Statement.
     (hh) There are no stamp or other issuance or transfer taxes or duties or other similar fees or charges required to be paid in connection with the execution and delivery of this Agreement and the Transaction Documents, the issuance or sale by the Company of the New Securities, the solicitation or acceptance of Consents or tenders with respect to the Old Securities.
     (ii) The Trust has been duly created and is validly existing as a statutory trust in good standing under the Trust Agreement and the Delaware Statutory Trust Act and has the trust power and authority to own its properties and conduct its business as described in the Preliminary Prospectus, the Disclosure Package and the Prospectus.
     (jj) Upon receipt of the requisite Consents to the Proposed Amendments, each of (x) the Trust Agreement as amended by the Trust Agreement Amendment, (y) the Stock Purchase Contract Agreement Amendment, and (z) the Collateral Agreement Amendment, will have been duly authorized, executed and delivered by or on behalf of the Trust and will constitute a valid and legally binding instrument of the Trust, enforceable in accordance with its respective terms, except as the enforceability thereof may be limited by (A) bankruptcy, insolvency, moratorium, reorganization, arrangement, liquidation, conservatorship, readjustment of debt, fraudulent transfer and other similar laws affecting the rights of creditors generally, and (B) the discretion of any court of competent jurisdiction in awarding equitable remedies, including, without limitation, acceleration, specific performance or injunctive relief, and the effect of general principles of equity.
     (kk) Upon receipt of the requisite Consents to the Proposed Amendments, the Trust will have all the necessary power and authority to execute, deliver and perform the Transaction Documents to which it is a party and to consummate the transactions therein contemplated. The execution, delivery and performance of the Transaction Documents and the consummation of the transactions therein contemplated, will not result in any violation of or conflict with (A) the Certificate of Trust of the Trust, (B) any applicable Delaware law, rule or regulation or (C) any provision of applicable law of the United States; will not contravene any provision of applicable law, the Trust Agreement (as amended by the Trust Agreement Amendment), the certificate of incorporation or bylaws of the Company or articles of association or bylaws of U.S. Bank National Association or any agreement or other instrument binding upon the Trust, the Company or U.S. Bank National Association that is material to the Trust or to the Company and its subsidiaries, taken as a whole,

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or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Trust; and, no consent, authorization or order of, or filing or registration with, any court or governmental agency or authority is required for the execution, delivery and performance by the Trust of the Transaction Documents and to consummate the transactions therein contemplated, except such as have been made or obtained or will be made or obtained at or before the Exchange Date from the Board of Governors of the Federal Reserve System or in connection with the registration of the New Securities with the Commission pursuant to the Securities Act and except such as may be required under applicable state securities or “blue sky” laws.
     (ll) As of the Exchange Date, the provisions of the Collateral Agreement as amended by the Collateral Agreement Amendment will continue to be effective to create in favor of the Collateral Agent for the benefit of the Company a valid security interest under the Uniform Commercial Code as in effect in the State of New York on the date hereof (the “UCC”) in all “security entitlements” (as defined in Section 8-102(a)(17) of the UCC and the Federal Book-Entry Regulations) now or hereafter carried in or to the Junior Subordinated Notes or treasury securities included in the Pledge Account (the “Pledged Securities Entitlements”); and the provisions of the Collateral Agreement as amended by the Collateral Agreement Amendment will continue to be effective under the UCC and the Federal Book-Entry Regulations to perfect the security interest of the Collateral Agent for the benefit of the Company in the Pledged Security Entitlements. “Federal Book-Entry Regulations” means (a) the federal regulations contained in Subpart B (“Treasury/Reserve Automated Debt Entry System (TRADES)” governing Book-Entry Securities consisting of U.S. Treasury bonds, notes and bills) and Subpart D (“Additional Provisions”) of 31 C.F.R. Part 357, 31 C.F.R. Section 357.10 through Section 357.14 and Section 357.41 through Section 357.44 (including related defined terms in 31 C.F.R. Section 357.2); and (b) to the extent substantially identical to the federal regulations referred to in clause (a) above (as in effect from time to time), the federal regulations governing other Book-Entry Securities.
     (mm) The Company has not agreed to pay and the Company does not know of any outstanding material claims in the nature of a finder’s fee, financial advisory fee, origination fee or similar fee to be paid by them with respect to the transactions contemplated hereby except as contemplated by this Agreement.
          6. Conditions of the Dealer Managers’ Obligations. The obligations of the Dealer Managers in this Agreement are subject to the accuracy of the representations and warranties contained herein as of the Commencement Date and as of the Exchange Date, as if made on and as of each such date (except as expressly provided therein), to the accuracy in all material respects of the statements contained in certificates delivered by the officers of the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its covenants and agreements hereunder and to the following additional conditions, unless waived in writing by you:

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     (a) The Registration Statement shall have been declared effective by the Commission, and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall be in effect and no proceedings for that purpose shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement, the Preliminary Prospectus or the Prospectus shall have been received; and no stop order suspending or preventing the use of the Preliminary Prospectus or the Prospectus shall have been initiated or threatened by the Commission. The Prospectus and any amendment or supplement thereto and all Rule 165 Material shall have been timely filed with the Commission under the Securities Act, subject to compliance with Rule 165(e) of the Securities Act, and in accordance with Section 4(b) hereof. All requests by the Commission for additional information with respect to the Exchange Offer and the Solicitation shall have been complied with to your reasonable satisfaction. All other Exchange Materials required to be filed with the Commission shall have been filed with the applicable time prescribed for such filing under the Securities Act.
     (b) There shall not have been any legal action, order, decree or other administrative proceeding instituted or threatened against the Company or the Trust that could reasonably be expected to result in a Material Adverse Effect, or against you relating to the Exchange Offer and the Solicitation and your activities in connection therewith or any of the other transactions contemplated by the Exchange Materials.
     (c) On the Commencement Date and the Exchange Date, you shall have received, dated as of each such date, (i) the opinion and negative assurance letter of Squire, Sanders & Dempsey, L.L.P., counsel for the Company, substantially in the form of Exhibits B-1 and B-2 hereto, (ii) the opinion of Lee R. Mitau, Executive Vice President and General Counsel of the Company, substantially in the form of Exhibits C-1 and C-2 hereto, and (iii) Richards, Layton & Finger, P.A., special Delaware counsel to the Trust, substantially in the form of Exhibits D-1 and D-2 hereto.
     (d) On the Commencement Date and the Exchange Date, you shall have received, dated as of each such date, an opinion and 10b-5 side letter of Shearman & Sterling LLP, your counsel, in the form and substance reasonably satisfactory to you.
     (e) Subsequent to the respective dates of the most recent financial statements included or incorporated by reference in the Preliminary Prospectus, the Disclosure Package and the Prospectus (as amended or supplemented), there shall not have been any material adverse change in the condition, financial or otherwise, of the Trust or of the Company and its subsidiaries considered as one enterprise, or in the earnings, affairs or business prospects of the Trust or 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 Preliminary Prospectus, the Disclosure Package and the Prospectus exclusive of any amendment or supplement.

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     (f) None of the Exchange Offer, the Consent Solicitation or any of the other transactions contemplated by the Exchange Materials shall be enjoined (temporarily or permanently) and no restraining order or other injunctive order shall have been issued, or any action, suit or proceeding shall have been commenced, with respect to the Exchange Offer, the Solicitation, this Agreement, the issuance of the New Securities and the Preferred Stock or any of the other transactions contemplated by the Exchange Materials, before any court or governmental authority.
     (g) On the Exchange Date, you shall have received a certificate, dated such date, of the principal financial or accounting officer of the Company to the effect that, to the best of his knowledge after reasonable investigation:
(i) Except for representations and warranties that speak of a particular date (which representations and warranties shall be true and correct in all material respects as of such date), the representations and warranties of the Company in this Agreement are true and correct in all material respects as if made on and as of such date and the Company has performed all covenants and agreements and satisfied all conditions on its part to be performed or satisfied at or prior to such date (after giving effect to the Exchange Offer, the Solicitation and the other transactions contemplated by the Exchange Materials), in all material respects;
(ii) Subsequent to the date as of which information is given in the Preliminary Prospectus, the Disclosure Package and the Prospectus (as amended or supplemented), as of the date of such certificate, there has not 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 Preliminary Prospectus, the Disclosure Package and the Prospectus;
(iii) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Preliminary Prospectus has been issued and no proceedings for that purpose have been instituted and are pending or have been threatened as of such date; and neither the Exchange Offer, nor any of the other transactions contemplated hereby or by the Exchange Materials has been enjoined (temporarily or permanently) and no restraining order or other injunctive order has been issued nor, to his knowledge, has any action, suit or proceeding been commenced with respect to the Exchange Offer, the Solicitation, this Agreement, the issuance of the New Securities or any of the other transactions contemplated by the Exchange Materials, before any court or governmental authority; and
(iv) Since the Commencement Date, (A) no downgrading has occurred in the rating accorded the Company’s unsecured debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (B) no such

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organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities or preferred stock or the Old Securities.
     (h) On the Exchange Date, all conditions to the consummation of the Exchange Offer set forth in the Exchange Materials shall have been satisfied in all material respects without waiver and all other transactions contemplated by the Exchange Materials to be consummated simultaneously with or prior to the consummation of the Exchange Offer shall have been consummated or shall be consummated simultaneously.
     (i) On the Commencement Date and the Exchange Date, Ernst & Young LLP shall have furnished to you customary comfort letters addressed to you and in form and substance satisfactory to you and your counsel with respect to the financial statements of the Company that it has audited and certain financial information contained or incorporated by reference in the Exchange Materials.
     (j) On the Exchange Date, all of the Transaction Documents shall have been executed and delivered by each of the parties thereto and shall be in full force and effect and the Dealer Managers shall have received fully executed copies thereof and the Company shall not be in default in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any of the Transaction Documents, and no condition shall exist that, with the giving of notice or the lapse of time, or both, would constitute such a default, except in each case where the consequences of such default or defaults, if any, would not reasonably be expected to result in a Material Adverse Effect.
     (k) On the Exchange Date, the Company shall not have any knowledge that any party shall have failed to perform or comply with any of the agreements contained in any of the Transaction Documents and required to be performed or complied with by such party unless such failure would not reasonably be expected to result in a Material Adverse Effect.
     (l) On the Exchange Date, the Company shall have obtained all consents and approvals necessary to consummate the transactions contemplated by this Agreement and the Exchange Materials, including, without limitation, from the Board of Governors of the Federal Reserve System.
     (m) On the Exchange Date, counsel for the Dealer Managers shall have been furnished with such documents, certificates and opinions as they reasonably may require for the purpose of enabling them to pass upon the issuance and sale of the New Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the Exchange Offer and the Solicitation and any other transactions contemplated by the

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Exchange Materials shall be reasonably satisfactory in form and substance to the Dealer Managers and counsel for each Dealer Manager.
     (n) Since the date of this Agreement, (A) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities or preferred stock by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (B) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities or preferred stock or the Old Securities.
     (o) Prior to the Exchange Date, the New Securities shall have been approved for listing on the NYSE, subject to notice of issuance.
          All such documents, certificates, schedules or instruments delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to you and your counsel. The Company shall furnish to you such conformed copies of such documents, certificates, schedules and instruments in such quantities as you shall reasonably request.
          In the event that any of the foregoing conditions is not met when required to be met, then you shall be entitled to withdraw as a Dealer Manager in connection with the Exchange Offer and the Solicitation without any liability or penalty to you or any other “indemnified party” (as defined in Section 7) and without loss of any right to the payment of all expenses and fees hereunder that have accrued as of the date of such withdrawal that are otherwise payable under this Agreement.
          7. Indemnification. The Company agrees to indemnify and hold harmless the Dealer Managers and each other person, if any, “controlling” a Dealer Manager within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each an “indemnified party”) from and against any and all losses, actions, claims, damages or liabilities, and will reimburse any indemnified party for all costs and expenses (including reasonable counsel fees) as they are incurred by such indemnified party in connection with investigating, preparing to defend or defending any such action or claim caused by or arising out of, or in connection with, the Exchange Offer and the Solicitation (whether or not consummated), including, but not limited to, losses, actions, claims, liabilities, damages, costs or expenses arising out of or based upon (1) (A) any untrue statement of a material fact or alleged untrue statement of a material fact contained in the Registration Statement or any amendment or supplement thereto, or arising out of or are based upon the omission or alleged omission to state therein any material fact required to be stated therein or necessary in order to make the statements therein not misleading, (B) any untrue statement of a material fact or alleged untrue statement of a material fact contained in the Disclosure Package, any Preliminary Prospectus, the Prospectus, any Rule 165 Material, any Exchange Materials or any other information provided by the Company to any holder of Old Securities in connection with the Exchange Offer and the Solicitation or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a

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material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (2) any breach of any agreement or representation of the Company contained in this Agreement or which arise out of or are based upon any failure to accept Old Securities properly exchanged pursuant to the Exchange Offer, (3) the performance by you of the services contemplated by this Agreement, or otherwise arising out of, relating to or in connection with the Exchange Offer and the Solicitation; provided, however, that the Company will not be liable to any indemnified party under clause (4) hereof to the extent that any claims, liabilities, losses, damages, costs or expenses (a) are finally determined by a court of competent jurisdiction to the extent resulting primarily from the gross negligence or willful misconduct of such indemnified party; and provided further, however, that the Company will not be liable to any indemnified party under clause (1) hereof to the extent that any claims, liabilities, losses, damages, costs or expenses arise out of or is based upon any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission to state in any of the Exchange Materials a material fact, if in either such case such statement or omission was made in reliance upon and in conformity with information furnished in writing by the Dealer Managers to the Company expressly for use therein (which for purposes of this Agreement, shall consist of the name and address of the Dealer Managers on the front cover and the back cover of the Prospectus and the Letter of Transmittal). The Company shall not be liable under this Section 8 for any settlement of any claim or action effected without its prior written consent, which shall not be unreasonably withheld or delayed.
          The Company will not, without the prior written consent of the Representative, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought by an indemnified party hereunder (when an indemnified party is or could have been a party to such claim, action, suit or proceeding), unless such settlement, compromise or consent includes an unconditional written release (in form and substance reasonably satisfactory to the indemnified parties) of the indemnified parties from all liability arising out of such claim, action, suit or proceeding.
          Each indemnified party shall give prompt notice to the Company of any action commenced against it in respect of which indemnity may be sought hereunder but failure to so notify the Company shall not relieve it from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event 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 this Section 7, counsel to the indemnified party shall be selected by the Dealer Managers. The Company may participate at its own expense in the defense of such action; provided, however, that counsel to the Company shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the Company 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.

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          In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 7 is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), the Company, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect (a) the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the Exchange Offer and the Solicitation or (b) if the allocation provided by the foregoing clause (a) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand in connection with such losses, claims, damages or liabilities (or actions in respect thereof). The relative benefits received by the Company on the one hand and the indemnified parties on the other hand shall be deemed to be in the same proportion as (a) the aggregate liquidation amount of Old Securities solicited for exchange pursuant to the Exchange Offer and the Solicitation bears to (b) the fees and expenses paid or proposed to be paid by the Company to such indemnified party under this Agreement. The relative fault of the Company on the one hand and the Dealer Managers on the other shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or by the Dealer Managers on the other and such party’s relative intent, knowledge, access to information and opportunities to correct or prevent such statement or omission. The indemnity, reimbursement and contribution obligations of the Company under this Agreement shall be in addition to any rights that the Dealer Managers or any other indemnified party may have at common law or otherwise, including any other agreements by and among the parties hereto. The Company and the Dealer Managers agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation (even if the Company on the one hand and the indemnified parties on the other hand were treated as one entity for such purpose) or by any other method of allocation that does not take into account the equitable considerations referred to in this paragraph. Notwithstanding any other provision of this paragraph, the indemnified parties shall not be obligated to make contributions hereunder that in the aggregate exceed the total fees received by the Dealer Managers under this Agreement, less the aggregate amount of any damages that the indemnified parties have otherwise been required to pay for which indemnification is provided for hereunder, and no person guilty of fraudulent misrepresentation shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this paragraph, each of the Dealer Manager’s respective affiliates, directors, officers, agents, representatives, employees and each person, if any, who controls a Dealer Manager 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 Dealer Manager.
          8. Termination.
          (a) This Agreement may be terminated (i) by the Dealer Managers at any time upon notice to the Company if (A) the Company shall mail or otherwise distribute or

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propose to mail or otherwise distribute any supplement to any Exchange Materials to which the Dealer Managers shall reasonably object or which shall be reasonably disapproved by their counsel, (B) at any time prior to the Exchange Date, the Exchange Offer is terminated or withdrawn for any reason (other than the failure of the Dealer Managers to perform their obligations hereunder) or any restraining order or other injunctive order shall have been issued or any action, suit or proceeding shall have been commenced with respect to the Exchange Offer, this Agreement or any of the other transactions contemplated by the Exchange Materials, before any court or governmental authority which makes it inadvisable for the Dealer Managers, in their reasonable discretion, to continue to act as Dealer Managers hereunder, (C) any of the conditions specified in Section 6 shall not have been fulfilled when required thereunder to be fulfilled or the representations and warranties under Section 4 are incorrect in any material respect, or (D) there is a good faith disagreement between the Dealer Managers on the one hand and the Company on the other hand with respect to a material term or condition of the Exchange Offer or the Solicitation or the Exchange Materials, or (ii) by the Company upon notice to the Dealer Managers, if there is a good faith disagreement between the Dealer Managers on the one hand and the Company on the other hand with respect to a material term or condition of the Exchange Offer or the Solicitation or the Exchange Materials.
          (b) Termination of this Agreement pursuant to this Section 8 shall be without liability of any party to any other party except as provided in Section 11 hereof.
          9. Notices. Any notices required to be given in writing pursuant to any of the provisions of this Agreement shall be delivered
(a) to the Company:
U.S. Bancorp
800 Nicollet Mall, BC-MN-H185
Minneapolis, Minnesota 54402
Attention: Secretary
with a copy to:
Squire, Sanders & Dempsey L.L.P.
221 E. 4th Street, Suite 2900
Cincinnati, Ohio 45202
          Attention:   James J. Barresi, Esq.
Aaron A. Seamon, Esq.
or (b) to the Representative:
Deutsche Bank Securities Inc.
60 Wall Street, 2nd Floor
New York, New York 10005
Attention: General Counsel

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with a copy to:
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
          Attention:   Michael J. Schiavone, Esq.
Lona Nallengara, Esq.
Any such notice may be made by telecopier or telephone, but if so made shall be subsequently confirmed in writing.
          10. Tombstone. The Company acknowledges that you may at any time after the Exchange Date place an announcement in such newspapers and periodicals as you may choose at your own cost stating that you acted as a Dealer Manager to the Company in connection with the Exchange Offer and the Solicitation, provided that you will submit a copy of any such announcements to the Company for its prior approval, which approval shall not be unreasonably withheld or delayed.
          11. Survival. The provisions of Section 2(d) and 4 hereof, the indemnity, reimbursement and contribution agreements contained in Section 7 hereof, the representations and warranties and agreements set forth in Section 5 hereof, Section 12 hereof and the right to any fees under Section 8 hereof shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of you or any of your affiliates or any person controlling you or any of your affiliates, (b) consummation of the Exchange Offer and the Solicitation or (c) any termination of this Agreement or of your engagement hereunder, and shall be binding upon and shall inure to the benefit of any successors, assigns, heirs and personal representatives of the Company, you and the indemnified parties referred to in Section 7 hereof, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit, or remedy.
          12. APPLICABLE LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THE COMPANY AND YOU HEREBY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE CITY OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATING TO THIS AGREEMENT OR ANY MATTERS CONTEMPLATED HEREBY. YOU, ON THE ONE HAND, AND THE COMPANY (ON THEIR OWN BEHALF AND, TO THE EXTENT PERMITTED BY LAW, ON BEHALF OF THEIR STOCKHOLDERS), ON THE OTHER HAND, WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT OR PROCEEDING WITH RESPECT TO YOUR ENGAGEMENT AS A DEALER MANAGER OR YOUR ROLE IN CONNECTION HEREWITH.

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          13. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
          14. Headings. The section headings in this Agreement have been inserted as a matter of convenience of reference only and are not a part hereof.
          15. Entire Agreement, Etc. This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, oral or written, among the parties hereto with respect to the subject matter hereof. This Agreement may not be amended, modified or supplemented without the prior written consent of each of the parties hereto.

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          If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and the Dealer Managers.
         
  Very truly yours,

U.S. BANCORP
 
 
  By:   /s/ Kenneth D. Nelson    
    Name:   Kenneth D. Nelson   
    Title:   Executive Vice President and Treasurer   
 
Dealer Manager Agreement

 


 

CONFIRMED AND ACCEPTED, as of the date first above written.
         
  DEUTSCHE BANK SECURITIES INC.,
As Representative of the Dealer Managers
 
 
  By:   /s/ Jason Braunstein    
    Name:   Jason Braunstein   
    Title:   Managing Director   
 
     
  By:   /s/ Venkat Badinehal    
    Name:   Venkat Badinehal   
    Title:   Managing Director   
 
Dealer Manager Agreement

 


 

Exhibit A-1
[Form of Offering Memorandum]

 


 

Exhibit A-2
[Form of Letter of Transmittal]

 


 

     Exhibit B-1
Form of Opinion of Squire, Sanders & Dempsey L.L.P. to be delivered at the Commencement Date
     1. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Preliminary Prospectus.
     2. U.S. Bank National Association has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Preliminary Prospectus.
     3. This Agreement has been duly authorized, executed and delivered by the Company and constitutes 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 except that the rights of indemnification and contribution thereunder may be limited by applicable Federal and state securities laws.
     4. The shares of Preferred Stock and the Depositary Shares have been duly and validly authorized for issuance by the Company and, when the shares of Preferred Stock are issued and deposited with the Depositary in accordance with the provisions of the Deposit Agreement and the Depositary Shares are issued and delivered by the Depositary in accordance with the provisions of the Deposit Agreement in exchange for the Old Securities in accordance with the Preliminary Prospectus and the Letter of Transmittal, the shares of Preferred Stock and the Depositary Shares will be duly and validly issued and fully paid and non-assessable and the Depositary Shares will represent legal and valid interests in the Preferred Stock.
     5. Each of (i) the Supplemental Indenture, (ii) the Trust Agreement Amendment, (iii) the Stock Purchase Contract Agreement Amendment, (iv) the Collateral Agreement Amendment, and (v) the Deposit Agreement, has been duly and validly authorized by the Company.
     6. The Preliminary Prospectus, as of its date, appears on its face to comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder.
     7. The Registration Statement, as of the Commencement Date, appears on its face to comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder.

 


 

     8. If conducted in accordance with the terms and conditions set forth in the Preliminary Prospectus and the Letter of Transmittal in respect of the Exchange Offer and the Solicitation, the terms and provisions of the Exchange Offer will comply in all material respects with the requirements of the Securities Act and the Exchange Act and the respective rules and regulations promulgated thereunder.
     9. The Exchange Act reports incorporated by reference into the Registration Statement or any Preliminary Prospectus (other than the financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, as of its date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading.
     10. The Exchange Offer, the Solicitation, the issuance of the Depositary Shares and the Preferred Stock and all other actions by the Company contemplated in the Exchange Materials and this Agreement have been duly and validly authorized by all necessary corporate action by the Company and no other corporate proceedings by the Company are necessary to authorize any such actions.
     11. The Company has all the necessary power and authority to conduct and consummate the Exchange Offer and the Solicitation, issue the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, execute, deliver and perform this Agreement and the Transaction Documents, and to consummate the transactions herein and therein contemplated.
     12. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents, and the consummation of the transactions herein and therein contemplated, will not result in a violation of any federal or state law nor will such action result in any violation of the provisions of the charter or bylaws of the Company or the articles of association or bylaws of U.S. Bank National Association.
     13. The execution, delivery and performance of the Transaction Documents to which it is a party and compliance with the provisions thereof by the Trust, and the consummation of the transactions contemplated therein, and the performance of the obligations thereunder will not violate any provision of federal law or, to the best knowledge of such counsel, any agreement or instrument binding upon the Trust or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Trust, except such contravention as would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Trust.

 


 

     14. No consent, approval, license, authorization, or order of, or filing or registration with, any court or governmental authority or agency is required in connection with the conduct and consummation of the Exchange Offer or the Solicitation by the Company or the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, or for the execution, delivery and performance by the Company of this Agreement and the Transaction Documents to which it is a party or the consummation by the Company of the transactions herein and therein contemplated, except such as have been made or obtained or will be made or obtained at or before the Commencement Date from the Board of Governors of the Federal Reserve System or in connection with the registration of the Depositary Shares and the Preferred Stock with the Commission pursuant to the Securities Act and except such as may be required under state securities or Blue Sky laws.
     15. No consent, approval, license, authorization, or order of, or filing or registration with, any federal court or federal government authority or agency is required for the execution, delivery and performance by the Trust of the Transaction Documents to which it is a party or the consummation by the Trust of the transactions herein and therein contemplated, except such as have been made or obtained or will be made or obtained at or before the Commencement Date from the Board of Governors of the Federal Reserve System.
     16. The statements set forth in the Preliminary Prospectus under the captions “Description of Preferred Stock,” “Description of Depositary Shares,” “Comparison of Rights Between the Normal ITS and the Depositary Shares,” and “The Exchange Offer and the Consent Solicitation—The Proposed Amendments,” insofar as such statements purport to summarize certain provisions of the documents referred to therein, fairly summarize such provisions in all material respects.
     17. The statements set forth in the Preliminary Prospectus under the captions “Material U.S. Federal Income Tax Consequences” and “Benefit Plan Investor Considerations,” insofar as such statements refer to statements of law or legal conclusions, fairly summarize the matters referred to therein in all material respects.
     18. To the best of such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Preliminary Prospectus or filed as exhibits to the Registration Statement other than those described or referred to therein or incorporated by reference and the description thereof or references thereto are correct.
     19. The Company is not, and as a result of the consummation of the Exchange Offer as contemplated in the Preliminary Prospectus, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
          Such counsel shall also have furnished to the Dealer Managers a written statement, addressed to the Dealer Managers and dated the Commencement Date, in form and substance satisfactory to the Dealer Managers, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the

 


 

Preliminary Prospectus and the documents incorporated by reference therein and any other Exchange Materials and in the course of preparation of those documents such counsel has participated in conferences with representatives of the Company and with representatives of Ernst & Young LLP and (y) based upon such counsel’s examination of the Registration Statement and the Preliminary Prospectus and the documents incorporated by reference therein and any other Exchange Materials, such counsel’s investigations made in connection with the preparation of the Registration Statement and the Preliminary Prospectus and the documents incorporated by reference therein and any other Exchange Materials and such counsel’s participation in the conferences referred to above, such counsel has no reason to believe that: (A) the Preliminary Prospectus (other than the financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which no statement need be rendered) as of its date, contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (B) the Exchange Materials (other than the financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which no statement need be rendered) as of the Commencement Date, contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 


 

Exhibit B-2
Form of Opinion of Squire, Sanders & Dempsey L.L.P. to be delivered at the Exchange Date
     1. The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware 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.
     2. U.S. Bank National Association has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the General Disclosure Package and the Prospectus.
     3. This Agreement has been duly authorized, executed and delivered by the Company and constitutes 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 except that the rights of indemnification and contribution thereunder may be limited by applicable Federal and state securities laws.
     4. The shares of Preferred Stock and the Depositary Shares have been duly and validly authorized for issuance by the Company and, when the shares of Preferred Stock are issued and deposited with the Depositary in accordance with the provisions of the Deposit Agreement and the Depositary Shares are issued and delivered by the Depositary in accordance with the provisions of the Deposit Agreement in exchange for the Old Securities in accordance with the Prospectus and the Letter of Transmittal, the shares of Preferred Stock and the Depositary Shares will be duly and validly issued and fully paid and non-assessable and the Depositary Shares will represent legal and valid interests in the Preferred Stock and the Preferred Stock and the Depositary Shares conform to the descriptions thereof contained in the General Disclosure Package and the Prospectus.
     5. Each of (i) the Supplemental Indenture, (ii) the Trust Agreement Amendment, (iii) the Stock Purchase Contract Agreement Amendment, (iv) the Collateral Agreement Amendment, and (v) the Deposit Agreement, has been duly and validly authorized, executed and delivered by the Company and the Administrative Trustees of the Trust, to the extent they are a party thereto, and each of (w) the Base Indenture as supplemented by the Supplemental Indenture, (x) the Stock Purchase Contract Agreement Amendment, (y) the Collateral Agreement Amendment, and (z) the Deposit Agreement, constitute a valid and legally binding agreement of the Company, the Trust and each Trustee, as applicable, enforceable against the Company, the Trust and the Trustees, as applicable in accordance with its respective 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
     6. Each of the Preliminary Prospectus and the Prospectus, as of its respective date, appears on its face to comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder.
     7. The Registration Statement has been declared effective under the Securities Act; any required filing of each prospectus relating to the Exchange Offer (including the Prospectus) pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of any Rule 165 Information has been made in the manner and within the time period required by Rule 165; and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
     8. The Registration Statement, as of the Commencement Date and as of the date it was declared effective by the Commission (the “Effective Date”), appears on its face to comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations promulgated thereunder.
     9. If conducted in accordance with the terms and conditions set forth in the Preliminary Prospectus, the Prospectus and the Letter of Transmittal in respect of the Exchange Offer and the Solicitation, the terms and provisions of the Exchange Offer will comply in all material respects with the requirements of the Securities Act and the Exchange Act and the respective rules and regulations promulgated thereunder.
     10. The Exchange Act reports incorporated by reference into the Registration Statement, any Preliminary Prospectus or the Prospectus (other than the financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), when they were filed with the Commission, complied as to form in all material respects with the requirements of the Exchange Act, and the rules and regulations of the Commission thereunder; and such counsel has no reason to believe that any of such documents, when they were so filed, as of its date contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading.
     11. The Exchange Offer, the Solicitation, the issuance of the Depositary Shares and the Preferred Stock and all other actions by the Company contemplated in the Exchange Materials and this Agreement have been duly and validly authorized by all necessary corporate action by the Company and no other corporate proceedings by the Company are necessary to authorize any such actions.

 


 

     12. The Company has all the necessary power and authority to conduct and consummate the Exchange Offer and the Solicitation, issue the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, execute, deliver and perform this Agreement and the Transaction Documents, and to consummate the transactions herein and therein contemplated.
     13. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents, and the consummation of the transactions contemplated herein and therein, will not result in a violation of any federal or state law nor will such action result in any violation of the provisions of the charter or bylaws of the Company or the articles of association or bylaws of U.S. Bank National Association.
     14. The execution, delivery and performance of the Transaction Documents to which it is a party and compliance with the provisions thereof by the Trust, and the consummation of the transactions contemplated therein, and the performance of the obligations thereunder will not violate any provision of federal law or, to the best knowledge of such counsel, any agreement or instrument binding upon the Trust or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Trust, except such contravention as would not, individually or in the aggregate, have a material adverse effect on the condition (financial or other), business, properties, net worth or results of operations of the Trust.
     15. No consent, approval, license, authorization, or order of, or filing or registration with, any court or governmental authority or agency is required in connection with the conduct and consummation of the Exchange Offer or the Solicitation by the Company or the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, or for the execution, delivery and performance by the Company of this Agreement and the Transaction Documents to which it is a party or the consummation by the Company of the transactions herein and therein contemplated, except such as have been made or obtained or will be made or obtained at or before the Commencement Date from the Board of Governors of the Federal Reserve System or in connection with the registration of the Depositary Shares or the Preferred Stock with the Commission pursuant to the Securities Act and except such as may be required under state securities or Blue Sky laws.
     16. No consent, approval, license, authorization, or order of, or filing or registration with, any federal court or federal government authority or agency is required for the execution, delivery and performance by the Trust of the Transaction Documents to which it is a party or the consummation by the Trust of the transactions herein and therein contemplated, except such as have been made or obtained or will be made or obtained at or before the Commencement Date from the Board of Governors of the Federal Reserve System.
     17. The statements set forth in the General Disclosure Package and the Prospectus under the captions “Description of Preferred Stock,” “Description of Depositary Shares,”

 


 

“Comparison of Rights Between the Normal ITS and the Depositary Shares,” and “The Exchange Offer and the Consent Solicitation—The Proposed Amendments,” insofar as such statements purport to summarize certain provisions of the documents referred to therein, fairly summarize such provisions in all material respects.
     18. The statements set forth in the General Disclosure Package and the Prospectus under the captions “Material U.S. Federal Income Tax Consequences” and “Benefit Plan Investor Considerations,” insofar as such statements refer to statements of law or legal conclusions, fairly summarize the matters referred to therein in all material respects.
     19. To the best of such counsel’s knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the General Disclosure Package or the Prospectus or filed as exhibits to the Registration Statement other than those described or referred to therein or incorporated by reference and the description thereof or references thereto are correct.
     20. The Company is not, and as a result of the consummation of the Exchange Offer as contemplated in the Preliminary Prospectus, will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
          Such counsel shall also have furnished to the Dealer Managers a written statement, addressed to the Dealer Managers and dated the Exchange Date, in form and substance satisfactory to the Dealer Managers, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Preliminary Prospectus, the Prospectus and the documents incorporated by reference therein and any other Exchange Materials and in the course of preparation of those documents such counsel has participated in conferences with representatives of the Company and with representatives of Ernst & Young LLP and (y) based upon such counsel’s examination of the Registration Statement, the Preliminary Prospectus, the Prospectus and the documents incorporated by reference therein and any other Exchange Materials, such counsel’s investigations made in connection with the preparation of the Registration Statement, the Preliminary Prospectus, the Prospectus and the documents incorporated by reference therein and any other Exchange Materials and such counsel’s participation in the conferences referred to above, such counsel has no reason to believe that: (A) the Registration Statement (other than the financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom), as of the Effective Date and each deemed effective date with respect to the Dealer Managers pursuant to Rule 430B(f) under the Securities Act, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Prospectus (other than the financial statements, supporting schedules and other financial data included or incorporated by reference therein or omitted therefrom, as to which no statement need be rendered) as of its date or the date hereof, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. or (C) the Exchange Materials (other than the financial statements, supporting schedules and other financial data included or

 


 

incorporated by reference therein or omitted therefrom, as to which no statement need be rendered) as of the date hereof, contains any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 


 

Exhibit C-1
Form of Opinion of the General Counsel of the Company to be delivered at the Commencement Date
     1. The Company is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
     2. 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 .
     3. There are no pending or, to the best of such counsel’s knowledge, overtly threatened lawsuits or claims against the Company or its subsidiaries which are required to be disclosed in the Preliminary Prospectus that are not disclosed as required.
     4. To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened against the Trust or to which the Trust or any of its property is subject, that are required to be described in the Preliminary Prospectus that are not described as required and there are no agreements, contract, indentures, leases or other instruments of the Trust that are required to be described in the Preliminary Prospectus that are not described as required.
     5. To the best of such counsel’s knowledge, no restraining order, injunction or denial of an application for approval has been issued, and no legal or governmental proceedings are pending or threatened, by or before the Commission or any other government agency (including any court) with respect to the conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated herein and therein.
     6. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents, and the consummation of the transactions contemplated herein and therein, 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 subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to

 


 

which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole.

 


 

Exhibit C-2
Form of Opinion of the General Counsel of the Company to be delivered at the Exchange Date
     1. The Company is duly qualified to do business as a foreign corporation and is in good standing in each U.S. jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification, except where the failure to so qualify would not have a Material Adverse Effect on the Company and its subsidiaries, taken as a whole.
     2. 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 .
     3. There are no pending or, to the best of such counsel’s knowledge, 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.
     4. To the best of such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened against the Trust or to which the Trust or any of its property is subject, that are required to be described in the Preliminary Prospectus that are not described as required and there are no agreements, contract, indentures, leases or other instruments of the Trust that are required to be described in the General Disclosure Package and the Prospectus that are not described as required.
     5. To the best of such counsel’s knowledge, no restraining order, injunction or denial of an application for approval has been issued, and no legal or governmental proceedings are pending or threatened, by or before the Commission or any other government agency (including any court) with respect to the conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated herein and therein.
     6. The conduct and consummation of the Exchange Offer and the Solicitation, the issuance of the Depositary Shares and the Preferred Stock in accordance with the terms of the Exchange Offer, the execution, delivery and performance of this Agreement and the Transaction Documents and the consummation of the transactions contemplated herein and therein, 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 subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to

 


 

which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole.

 


 

Exhibit D-1
Form of Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to the Trust, to be delivered at the Commencement Date
     1. The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, and all filings required under the laws of the State of Delaware with respect to the creation and valid existence of the Trust as a statutory trust have been made.
     2. Under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trust power and authority to own its property and conduct its business, all as described in the Trust Agreement.
     3. The Trust Agreement constitutes a valid and binding obligation of the Company and the Trustees, and is enforceable against the Company and the Trustees, in accordance with its terms.
          In rendering the opinions expressed above, such counsel need express no opinion concerning the securities or tax laws of the State of Delaware

 


 

Exhibit D-2
Form of Opinion of Richards, Layton & Finger, P.A., special Delaware counsel to the Trust, to be delivered at the Exchange Date
     1. The Trust has been duly created and is validly existing in good standing as a statutory trust under the Delaware Statutory Trust Act, and all filings required under the laws of the State of Delaware with respect to the creation and valid existence of the Trust as a statutory trust have been made.
     2. Under the Delaware Statutory Trust Act and the Trust Agreement, the Trust has the trust power and authority to own its property and conduct its business, all as described in the Trust Agreement.
     3. Under the Delaware Statutory Trust Act and the Trust Agreement, as amended by the Trust Agreement Amendment, the execution and delivery by the Trust of the Stock Purchase Contract Agreement Amendment and the Collateral Agreement Amendment, and the performance by the Trust of its obligations thereunder, have been duly authorized by all necessary trust action on the part of the Trust.
     4. The Trust Agreement, as amended by the Trust Agreement Amendment, constitutes a valid and binding obligation of the Company and the Trustees, and is enforceable against the Company and the Trustees, in accordance with its terms.
     5. Each of (x) the Stock Purchase Contract Agreement Amendment and (y) the Collateral Agreement Amendment, have been duly executed and delivered by the Trust.
     6. The execution, delivery and performance of the Trust Agreement Amendment, the Stock Purchase Contract Agreement Amendment and the Collateral Agreement Amendment, the consummation by the Trust of the transactions contemplated thereby and compliance by the Trust with its obligations thereunder, will not result in any violation of or conflict with (A) any of the provisions of the Certificate of Trust of the Trust or the Trust Agreement, as amended by the Trust Agreement Amendment or (B) any applicable Delaware law or administrative regulation thereunder which is applicable to the Trust.
     7. No authorization, approval, consent or order of any Delaware legislative, administrative or regulatory body under the laws or administrative regulations of the State of Delaware is required to be obtained by the Trust solely in connection with the execution, delivery and performance of the Trust Agreement Amendment, the Stock Purchase Contract Agreement Amendment and the Collateral Agreement Amendment, the consummation by the Trust of the transactions contemplated thereby and compliance by the Trust with its obligations thereunder.
          In rendering the opinions expressed above, such counsel need express no opinion concerning the securities or tax laws of the State of Delaware. Such counsel may note that a consent fee was paid in connection with the amendments of the above documents,

 


 

and that, while not free from doubt, that such payment should not adversely affect such counsel’s opinions. Such counsel may expressly assume, among other matters, that the requisite vote of holders of a majority in liquidation amount of the Old Securities for such amendments has been obtained and all certificates and opinions required to be delivered pursuant to the terms of such documents have been so delivered.

 


 

Schedule I
Transaction Documents
Trust Agreement Amendment
Supplemental Indenture, including amended form of global Junior Note
Stock Purchase Contract Agreement Amendment
Collateral Agreement Amendment
Preferred Stock Amendment
Deposit Agreement

 

EX-4.9 3 c58008exv4w9.htm EX-4.9 exv4w9
Exhibit 4.9
 

EIGHTH SUPPLEMENTAL INDENTURE
between
U.S. BANCORP
and
WILMINGTON TRUST COMPANY,
as Trustee
DATED AS OF [ ], 2010
 
Supplement to Junior Subordinated Indenture dated as of April 28, 2005,
as supplemented by that certain First Supplemental Indenture
dated as of August 3, 2005 and that certain Second Supplemental Indenture
dated as of December 29, 2005 and that certain Third Supplemental Indenture
dated as of March 17, 2006 and that certain Fourth Supplemental Indenture dated as of
April 12, 2006 and that certain Fifth Supplemental Indenture dated as of August 30, 2006
and that certain Sixth Supplemental Indenture dated as of February 1, 2007 and that certain
Seventh Supplemental Indenture dated as of December 10, 2009
 

 


 

     EIGHTH SUPPLEMENTAL INDENTURE, dated as of [ ], 2010 (this “Supplemental Indenture”), among U.S. BANCORP, a Delaware corporation (hereinafter called the “Company”), having its principal office at 800 Nicollet Mall, Minneapolis, Minnesota 55402, WILMINGTON TRUST COMPANY, a Delaware banking corporation, as successor Trustee (hereinafter called the “Trustee”), and U.S. Bank National Association, as Securities Registrar and Paying Agent.
RECITALS
     WHEREAS, the Company and Delaware Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, as original Trustee (hereinafter called the “Original Trustee”), have entered into that certain Junior Subordinated Indenture, dated as of April 28, 2005 (the “Base Indenture”), which was amended and supplemented by the First Supplemental Indenture, dated as of August 3, 2005 (the “First Supplemental Indenture”), which was further amended and supplemented by the Second Supplemental Indenture, dated as of December 29, 2005, among the Company, the Original Trustee and the Trustee (the “Second Supplemental Indenture”), which was further amended and supplemented by the Third Supplemental Indenture, dated as of March 17, 2006, (the “Third Supplemental Indenture”), which was further amended and supplemented by the Fourth Supplemental Indenture, dated as of April 12, 2006 (the “Fourth Supplemental Indenture”), which was further amended and supplemented by the Fifth Supplemental Indenture, dated as of August 30, 2006 (the “Fifth Supplemental Indenture”), which was further amended and supplemented by the Sixth Supplemental Indenture, dated as of February 1, 2007 (the “Sixth Supplemental Indenture”), and which was further amended and supplemented by the Seventh Supplemental Indenture, dated as of December 10, 2009 (the “Seventh Supplemental Indenture” and, together with the Junior Subordinated Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and the Sixth Supplemental Indenture, collectively referred to herein as the “Indenture”); providing for the issuance from time to time of Securities;
     WHEREAS, pursuant to Section 9.1(3) of the Base Indenture, the Company and the Trustee entered into the Third Supplemental Indenture to establish the form and terms of the Company’s Remarketable Junior Subordinated Notes due 2042 (the “Original Notes”) pursuant to Sections 2.1 and 3.1 of the Base Indenture;
     WHEREAS, on March 17, 2006, pursuant to Section 2.1 and 3.1 of the Base Indenture, the Company issued $1,251,000,000 aggregate principal amount of the Original Notes to USB Capital Trust IX (the “Trust”), a Delaware statutory trust, in connection with the Trust’s public offering of its Capital Securities known as 6.189% Fixed-to-Floating Rate Normal Income Trust Securities (the “Normal ITS”);
     WHEREAS, the entire $1,251,000,000 aggregate principal amount of Original Notes remain Outstanding and held of record by the Trust on the date hereof;
     WHEREAS, Section 9.2 of the Base Indenture provides that (A) with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company
Eighth Supplemental Indenture

1


 

and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental thereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of Securities of such series under the Indenture; and (B) in the case of the Securities of a series issued to a USB Trust, so long as any of the corresponding series of Capital Securities issued by such USB Trust remains outstanding, no such amendment shall be made that adversely affects the holders of such Capital Securities in any material respect without the prior consent of the holders of at least a majority of the aggregate liquidation preference of such Capital Securities then outstanding;
     WHEREAS, the Company has solicited consents upon the terms and subject to the conditions set forth in the prospectus and consent solicitation statement dated [___], 2010 and in the related Letter of Transmittal and Consent, as each may be amended from time to time, from each Holder of Normal ITS to the amendments to the Indenture set forth below in this Supplemental Indenture and to authorize the Trust, as Holder of the Original Notes, to consent to such amendments (the “Proposed Amendments”);
     WHEREAS, the Company has received the consents from Holders of at least a majority in aggregate liquidation amount of the outstanding Normal ITS to effect the Proposed Amendments and make the changes to the Indenture embodied in and to be effected by this Supplemental Indenture pursuant to Section 9.2 of the Base Indenture;
     WHEREAS, the Company has received the consent of the Trust, as Holder of the outstanding Original Notes, to effect the Proposed Amendments and make the changes to the Indenture embodied in and to be effected by this Supplemental Indenture pursuant to Section 9.2 of the Base Indenture;
     WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this Supplemental Indenture have been satisfied;
     WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to, the Indenture have been done; and
     WHEREAS, pursuant to Section 9.2 of the Base Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture;
     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually covenanted and agreed that the Indenture is supplemented and amended to the extent and for the purposes expressed herein, as follows:
Eighth Supplemental Indenture

2


 

ARTICLE I
CAPITALIZED TERMS
     Section 1.1. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Indenture.
ARTICLE II
AMENDMENTS TO CERTAIN PROVISIONS OF ARTICLE 1 OF THE THIRD
SUPPLEMENTAL INDENTURE
     Section 2.1. The definition of “Remarketing Date” in Section 1.1 of the Third Supplemental Indenture is hereby deleted in its entirety.
     Section 2.2. The definition of “Trust Agreement” in Section 1.1 of the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:
     “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of March 17, 2006, among the Company, as Depositor, Wilmington Trust Company, as the Property Trustee and the Delaware Trustee, and the Administrative Trustees (each as named therein) and the several Holders (as defined therein) as amended by Amendment No. 1 to the Amended and Restated Trust Agreement, dated as of [ ], 2010, relating to the Trust.
     Section 2.3. The following definition is hereby added to 1.1 of the Third Supplemental Indenture in the appropriate alphabetical location:
     “Remarketing Period” means the thirty Business Day period beginning on the thirty-third Business Day preceding each of March 15, June 15, September 15 and December 15, 2011 and March 15, 2012 until the settlement of a Successful Remarketing, or if an Early Settlement Event shall have occurred, each of the dates determined in accordance with Section 3.4.
ARTICLE III
AMENDMENTS TO CERTAIN PROVISIONS OF ARTICLE 2 OF THE THIRD
SUPPLEMENTAL INDENTURE
     Section 3.1. Section 2.4(a) of the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:
     (a) The Notes shall be issued initially in fully registered form in the name of the Securities Intermediary and the Custodial Agent, in their respective capacities as such. For so long as such Notes are held by the Collateral Agent and the Custodial Agent, each such Note
Eighth Supplemental Indenture

3


 

shall represent the principal amount so indicated in the Securities Register, provided that the aggregate principal amount of all such Notes shall at all times equal the principal amount issued in accordance with Section 2.1, as adjusted for any subsequent cancellation pursuant to Section 3.9 of the Base Indenture.
     Section 3.2. The following Section 2.4(f) is hereby added to the Third Supplemental Indenture:
     (f) In the event that any Pledged Note is to be released from the Pledge and transferred to the Property Trustee pursuant to Section 2.04 of the Collateral Agreement (a “Cancelled Note”), as a result of the retirement of any Subject Normal ITS (as defined in the Trust Agreement) pursuant to Section 4.9 of the Trust Agreement as provided for in said Section 2.04 of the Collateral Agreement, such release and transfer shall be evidenced by an endorsement by the Collateral Agent or the Securities Registrar on the Note held by the Collateral Agent reflecting a reduction in the principal amount of such Note equal in amount to the principal amount of the Cancelled Note. The Collateral Agent shall confirm any such reduced principal amount by faxing or otherwise delivering a photocopy of such endorsement made on the Note evidencing such reduced principal amount to the Trustee at the facsimile number or address of the Trustee provided for notices to the Property Trustee in the Collateral Agreement (or at such other facsimile number or address as the Property Trustee shall provide to the Collateral Agent).
ARTICLE IV
AMENDMENTS TO CERTAIN PROVISIONS OF ARTICLE 3 OF THE THIRD
SUPPLEMENTAL INDENTURE
     Section 4.1. Section 3.2 of the Third Supplemental Indenture is hereby amended as set forth below:
     (a) The first paragraph of Section 3.2 is hereby amended and restated in its entirety as follows:
     In connection with Remarketings, the Company shall have the right hereunder, subject to Section 3.3(a), without the consent of any Holder of the Notes, to change certain terms of the Notes as provided below in this Section 3.2. By not later than the 21st day prior to each Remarketing Period, the Company will specify the following information or decisions in a notice to the Remarketing Agent, the Collateral Agent, the Custodial Agent, the Property Trustee (on behalf of the Trust) and the Trustee (clauses (a) through (f) applying only if the Remarketing is Successful and clause (g) applying only in the case of a Failed Remarketing):
     (b) The word “and” appearing at the end of Section 3.2(e) is hereby deleted.
     (c) The following new Section 3.2(f) is hereby added to the Third Supplemental Indenture, and the existing Section 3.2(f) is hereby renumbered as Section 3.2(g):
Eighth Supplemental Indenture

4


 

     (f) whether the Notes will be remarketed in one or more Series, which may include, at the Company’s sole option, different (i) Stated Maturity Dates, (ii) rates of interest, and (iii) denominations and interest payment dates, as such terms may be determined in accordance with the Indenture, as the same may be further supplemented from time to time by a supplemental indenture as permitted by Section 3.6 hereof; if the Notes are to be remarketed in more than one series, the term “Notes” as used in this Section 3.2 and in Section 3.3 shall be deemed to refer to the Notes of any such series; and
     Section 4.2. Section 3.3 of the Third Supplemental Indenture is hereby amended as set forth below:
     (a) The words “any Remarketing Date” in Section 3.3(b) are hereby deleted and replaced in their entirety with “the final day of any Remarketing Period”.
     (b) Section 3.3(d)(iv) is hereby amended and restated in its entirety as follows:
     (iv) the Company and the Remarketing Agent shall attempt another Remarketing during the next Remarketing Period.
     Section 4.3. Section 3.4 of the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:
     Section 3.4 Early Remarketing.
     If an Early Settlement Event occurs prior to the Stock Purchase Date, the Remarketing Periods shall be the thirty Business Day periods commencing on the thirty-third Business Day prior to March 15, June 15, September 15 or December 15, that is the first such date that is at least 30 days after the occurrence of such Early Settlement Event, and concluding with the earlier to occur of the fifth such date and a Successful Remarketing; provided that in the case of an Early Settlement Event of the type described in clause (v) of the definition of such term, there shall be only one Remarketing Period and the Reset Rate or Reset Spread shall not be subject to the Fixed Rate Reset Cap or Floating Rate Reset Cap, as the case may be, and if the Remarketing conducted on such date is not Successful, it shall be a Failed Remarketing and the Stock Purchase Date shall be the next succeeding February 15, May 15, August 15 or November 15 (or if such day is not a Business Day, the next Business Day).
     Section 4.4. Section 3.5 of the Third Supplemental Indenture is hereby amended as set forth below:
     (a) The words “any Remarketing Date” in Sections 3.5(a) and (b) are hereby deleted and replaced in their entirety with “the final day of any Remarketing Period”.
     (b) The following new Section 3.5(c) is hereby added to the Third Supplemental Indenture
Eighth Supplemental Indenture

5


 

     (c) If on any Business Day during a Remarketing Period other than the last day thereof the Company has determined to postpone the Remarketing until the next Business Day, the Company shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing has been postponed and shall post such information on its website on the World Wide Web.
     Section 4.5. Section 3.6 of the Third Supplemental Indenture is hereby amended and restated in its entirety as follows:
    Section 3.6 Supplemental Indenture.
     Notwithstanding any provision of the Base Indenture to the contrary, the Company and the Trustee may enter into a supplemental indenture without the consent of any Holder of the Notes to reflect any modifications to the terms of the Notes pursuant to the terms of this Article III, including, without limitation, to give effect to the issuance of remarketed Notes in one or more series and to amend the form of Note in Article V hereof to give effect thereto, and to provide for the exchange of the Notes for Notes in the form reflecting such modifications and adopted pursuant to such supplemental indenture.
ARTICLE V
NEW SERIES OF NOTES FOLLOWING A SUCCESSFUL REMARKETING
     Section 5.1. Upon a Successful Remarketing in which more than one series of Notes are to be issued hereunder, the final terms of any series of Notes will be reflected in the security certificate or certificates evidencing such series of Notes and Article V hereof shall be deemed to be amended thereby.
     Section 5.2. Upon a Successful Remarketing in which more than one series of Notes are to be issued hereunder, any reference in the Indenture to “series” and “Notes” shall, unless otherwise required by the context, be deemed to be a reference to each separate series of Notes.
     Section 5.3. Upon a Successful Remarketing in which more than one series of Notes are to be issued hereunder, upon the execution of one or more supplemental indentures specified in Section 4.4 hereof, Notes of each series in the respective aggregate principal amounts specified in such supplemental indenture or supplemental indentures shall be executed by the Company and delivered to the Trustee or an Authenticating Agent for authentication, and the Trustee or an Authenticating Agent shall thereupon authenticate and deliver said Notes of such series in accordance with a Company Order.
Eighth Supplemental Indenture

6


 

ARTICLE VI
MISCELLANEOUS
     Section 6.1. Effectiveness. This Supplemental Indenture will become effective upon its execution and delivery.
     Section 6.2. Ratification of Indenture. The Indenture as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
     Section 6.3. Further Assurances. The Company will, at its own cost and expense, execute and deliver any documents or agreements, and take any other actions that the Trustee or its counsel may from time to time request in order to assure the Trustee of the benefits of the rights granted to the Trustee under the Indenture, as supplemented and amended by this Supplemental Indenture.
     Section 6.4. Effect of Recitals. The recitals contained herein shall be taken as the statements of the Company, and the Trustee does not assume any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.
     Section 6.5. Effect of Headings. The Article and Section headings herein are for convenience only and shall not effect the construction hereof.
     Section 6.6. Successors and Assigns. All covenants and agreements in the Indenture, as amended and supplemented by this Supplemental Indenture, by the Company shall bind its successors and assigns, whether so expressed or not.
     Section 6.7. Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture is intended to or shall provide any rights to any parties other than those expressly contemplated by this Supplemental Indenture.
     Section 6.8. Trust Indenture Act Controls. If any provision of this Supplemental Indenture limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 through operation of Section 318(c) thereof, such imposed duties shall control.
     Section 6.9. Severability. In case any provision of this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     Section 6.10. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
****
Eighth Supplemental Indenture

7


 

     This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
* * * *
Eighth Supplemental Indenture

8


 

     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written.
             
        U.S. BANCORP
 
           
 
      By:    
 
           
 
      Its:    
 
           
Attest:
           
 
           
By
 
 
       
Its
           
 
 
 
       
 
           
        WILMINGTON TRUST COMPANY,
as Trustee
 
           
 
      By:    
 
           
 
      Its:    
 
           
 
           
Attest:
           
 
           
By
           
Its
 
 
       
 
 
 
       
 
           
        U.S. BANK NATIONAL ASSOCIATION,
as Securities Registrar and Paying Agent
 
           
 
      By:    
 
           
 
      Its:    
 
           
Eighth Supplemental Indenture

EX-4.11 4 c58008exv4w11.htm EX-4.11 exv4w11
EXHIBIT 4.11
 
Amended and Restated Trust Agreement
among
U.S. Bancorp,
as Depositor,
Wilmington Trust Company,
as Property Trustee,
Wilmington Trust Company,
as Delaware Trustee,
the Administrative Trustees (as named herein),
and the several Holders of the Trust Securities
Dated as of March 17, 2006
of
USB CAPITAL IX
 

 


 

U.S. Bancorp
Certain Sections of this Trust Agreement relating to Section 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
     
Trust Indenture   Trust Agreement
Act Section   Section
§ 310(a)(1)
  8.7 
(a)(2)
  8.7 
(a)(3)
  8.9 
(a)(4)
  2.7(a)(ii) 
(b)
  8.8 
(c)
  Not applicable
§ 311(a)
  8.13 
(b)
  8.13 
§ 312(a)
  5.7 
(b)
  5.7 
(c)
  5.7 
§ 313(a)
  8.15(a), 8.15(b) 
(b)
  8.15(b) 
(c)
  12.8 
(d)
  8.15(c) 
§ 314(a)
  8.16 
(b)
  Not applicable
(c)(1)
  8.17 
(c)(2)
  8.17 
(c)(3)
  Not applicable
(d)
  Not applicable
(e)
  1.1, 8.17 
§ 315(a)
  8.1(a), 8.3(a) 
(b)
  8.2, 12.8 
(c)
  8.1(d) 
(d)
  8.1(e), 8.3 
(e)
  Not applicable
§ 316(a)
  Not applicable
(a)(1)(A)
  Not applicable
(a)(1)(B)
  5.16(e) 
(a)(2)
  Not applicable
(b)
  5.16 
(c)
  6.8 
§ 317(a)(1)
  Not applicable
(a)(2)
  8.14 
(b)
  5.9 
§ 318(a)
  12.10 
(b)
  12.10 
 
Note:   This reconciliation and tie shall not, for any purpose be deemed to be part of the Trust Agreement.
Trust Agreement

-i-


 

Table of Contents
         
    Page  
ARTICLE I
 
       
Defined Terms
 
       
Section 1.1 Definitions
    1  
 
       
ARTICLE II
 
       
Continuation of the Issuer Trust; Issuance of Trust Preferred Securities; and Related Matters
 
       
Section 2.1 Name
    18  
Section 2.2 Office of the Delaware Trustee; Principal Place of Business
    18  
Section 2.3 Initial Contribution of Trust Property; Organizational Expenses
    18  
Section 2.4 Issuance of the Trust Preferred Securities
    18  
Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Notes
    19  
Section 2.6 Declaration of Trust
    19  
Section 2.7 Authorization to Enter into Certain Transactions
    20  
Section 2.8 Assets of Issuer Trust
    24  
Section 2.9 Title to Trust Property
    24  
 
       
ARTICLE III
 
       
Payment Account
 
       
Section 3.1 Payment Account
    24  
 
       
ARTICLE IV
 
       
Distributions; Redemption, Etc.
 
       
Section 4.1 Distributions
    24  
Section 4.2 Redemption
    27  
Section 4.3 Subordination of Common Securities
    29  
Section 4.4 Payment Procedures
    31  
Section 4.5 Tax Returns and Reports
    31  
Section 4.6 Payment of Expenses of the Issuer Trust
    31  
Section 4.7 Payments under Indenture or Pursuant to Direct Actions
    31  
Section 4.8 Combination of Stripped ITS and Normal ITS after Stock Purchase Date
    32  

 


 

         
    Page  
ARTICLE V
 
       
Trust Securities Certificates
 
       
Section 5.1 Initial Ownership
    32  
Section 5.2 The Trust Securities Certificates
    32  
Section 5.3 Execution and Delivery of Trust Securities Certificates
    33  
Section 5.4 Registration of Transfer and Exchange of Trust Preferred Securities Certificates
    33  
Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates
    34  
Section 5.6 Persons Deemed Holders
    34  
Section 5.7 List of Holders’ Names and Addresses
    35  
Section 5.8 Maintenance of Office Agency
    35  
Section 5.9 Appointment of Paying Agent
    36  
Section 5.10 Ownership of Common Securities by Depositor; Common Securities Certificate
    36  
Section 5.11 Book-Entry Trust Preferred Securities Certificates
    36  
Section 5.12 Notices to Clearing Agency
    39  
Section 5.13 Exchanges
    39  
Section 5.14 Remarketing Elections
    41  
Section 5.15 Definitive Trust Preferred Securities Certificates
    43  
Section 5.16 Rights of Holders; Waivers of Past Defaults
    44  
Section 5.17 CUSIP Numbers
    46  
Section 5.18 Remarketing Procedures
    46  
 
       
ARTICLE VI
 
       
Acts of Holders; Meetings; Voting
 
       
Section 6.1 Limitations on Voting Rights
    47  
Section 6.2 Notice of Meetings
    49  
Section 6.3 Meetings of Holders of the Trust Preferred Securities
    49  
Section 6.4 Voting Rights
    49  
Section 6.5 All Votes Must Be Made by a United States Person
    49  
Section 6.6 Proxies, Etc
    50  
Section 6.7 Holder Action by Written Consent
    50  
Section 6.8 Record Date for Voting and Other Purposes
    50  
Section 6.9 Acts of Holders
    50  
Section 6.10 Inspection of Records
    51  
 
       
ARTICLE VII
 
       
Representations and Warranties
 
       
Section 7.1 Representations and Warranties of the Property Trustee and the Delaware Trustee
    51  
Section 7.2 Representations and Warranties of Depositor
    53  

-iii-


 

         
    Page  
ARTICLE VIII
 
       
The Issuer Trustees
 
       
Section 8.1 Certain Duties and Responsibilities
    53  
Section 8.2 Certain Notices
    55  
Section 8.3 Certain Rights of Property Trustee
    56  
Section 8.4 Not Responsible for Recitals or Issuance of Securities
    58  
Section 8.5 May Hold Securities
    58  
Section 8.6 Compensation; Indemnity; Fees
    58  
Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees and Administrative Trustees
    59  
Section 8.8 Conflicting Interests
    59  
Section 8.9 Co-Trustees and Separate Trustee
    60  
Section 8.10 Resignation and Removal; Appointment of Successor
    61  
Section 8.11 Acceptance of Appointment by Successor
    62  
Section 8.12 Merger, Conversion, Consolidation or Succession to Business
    62  
Section 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust
    63  
Section 8.14 Property Trustee May File Proofs of Claim
    63  
Section 8.15 Reports by Property Trustee
    63  
Section 8.16 Reports to the Property Trustee
    64  
Section 8.17 Evidence of Compliance with Conditions Precedent
    64  
Section 8.18 Number of Issuer Trustees
    64  
Section 8.19 Delegation of Power
    65  
 
       
ARTICLE IX
 
       
Dissolution, Liquidation and Merger
 
       
Section 9.1 Perpetual Existence
    65  
Section 9.2 Early Dissolution
    65  
Section 9.3 Dissolution
    65  
Section 9.4 Liquidation
    66  
Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust
    67  
 
       
ARTICLE X
 
       
Qualifying Treasury Securities
 
       
Section 10.1 Qualifying Treasury Securities
    68  
 
       
ARTICLE XI
 
       
Other ITS Related Provisions
 
       
Section 11.1 Tax Treatment
    69  

-iv-


 

         
    Page  
ARTICLE XII
 
       
Miscellaneous Provisions
 
       
Section 12.1 Limitation of Rights of Holders
    69  
Section 12.2 Amendment
    70  
Section 12.3 Separability Clause
    71  
Section 12.4 Governing Law
    71  
Section 12.5 Payments Due on Non-Business Day
    72  
Section 12.6 Successors and Assigns
    72  
Section 12.7 Effect of Headings and Table of Contents
    72  
Section 12.8 Reports, Notices and Demands
    72  
Section 12.9 Agreement Not to Petition
    73  
Section 12.10 Trust Indenture Act; Conflict with Trust Indenture Act
    73  
Section 12.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture
    73  
EXHIBITS:
Exhibit A – Original Certificate of Trust
Exhibit B – Restated Certificate of Trust
Exhibit C – Form of Capital ITS Certificate
Exhibit D – Form of Common Securities Certificate
Exhibit E – Form of Normal ITS Certificate
Exhibit F – Form of Stripped ITS Certificate

-v-


 

     Amended and Restated Trust Agreement, dated as of March 17, 2006, among (i) U.S. Bancorp, a Delaware corporation (including any successors or assigns, the “Depositor”), (ii) Wilmington Trust Company, a Delaware banking corporation, as property trustee (in such capacity, the “Property Trustee”); (iii) Wilmington Trust Company, a Delaware banking corporation, as Delaware trustee (in such capacity, the “Delaware Trustee”), (iv) David M. Moffett, an individual, and Daryl N. Bible, an individual and Lee R. Mitau, an individual, each of whose address is c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402 (each, an “Administrative Trustee,” and collectively, the “Administrative Trustees”) (the Property Trustee, the Delaware Trustee, and the Administrative Trustees being referred to collectively as the “Issuer Trustees”), and (iv) the several Holders, as hereinafter defined.
Recital of the Depositor
     The Depositor and Delaware Trust Company, National Association (the “Original Trustee”), have heretofore duly declared and established a statutory trust (the “Issuer Trust”), pursuant to the Delaware Statutory Trust Act (as hereinafter defined) by entering into that certain Trust Agreement, dated as of April 27, 2005 (the “Original Trust Agreement”), and by the execution and filing with the Secretary of State of the State of Delaware the Certificate of Trust, filed on April 27, 2005, attached as Exhibit A (the “Original Certificate of Trust”). Pursuant to an Omnibus Appointment and Resignation Agreement, dated as of January 18, 2006, the Original Trustee resigned and Wilmington Trust Company was appointed by the Depositor as successor trustee under the Original Trust Agreement and a Restated Certificate of Trust, a copy of which is attached as Exhibit B (the “Restated Certificate of Trust” and together with the Original Certificate of Trust, the “Certificate of Trust”), was filed with the Secretary of State of Delaware on January 18, 2006.
     The Depositor and the Issuer Trustees desire to amend and restate the Trust Agreement in its entirety as set forth herein to provide for, among other things, (i) the issuance of the Common Securities by the Issuer Trust to the Depositor, (ii) the issuance of Normal ITS by the Issuer Trust and their issuance and sale pursuant to the Underwriting Agreement, (iii) the issuance of Stripped ITS and Capital ITS in Exchange for Normal ITS as provided in Section 5.13, (iv) the acquisition by the Issuer Trust from the Depositor of all of the right, title and interest in the Notes, and (v) the entering into by the Issuer Trust with the Depositor of the Stock Purchase Contract Agreement and, pursuant to the Stock Purchase Contracts evidenced by that Agreement, the purchase by the Issuer Trust of shares of Preferred Stock on the Stock Purchase Date.
     Now, therefore, this Trust Agreement witnesseth: For and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each party, for the benefit of the other parties and for the benefit of the Holders, hereby amends and restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
     Section 1.1 Definitions.
     For all purposes of this Trust Agreement, except as otherwise expressly provided or unless the context otherwise requires:
Trust Agreement

-1-


 

     (i) The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular.
     (ii) All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein.
     (iii) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles that are generally accepted at the date or time of such computation; provided that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by the Depositor.
     (iv) The words “hereby”, “hereof” and “hereunder” and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or other subdivision.
     “Act” has the meaning specified in Section 6.9.
     “Actual/360 Basis” means, for purposes of calculating the rate of Distributions, such rate calculated on the basis of a 360-day year and the number of days actually elapsed.
     “Additional Amount” means, with respect to Normal ITS and Capital ITS of a given Liquidation Amount and/or a given period, the amount of Additional Interest paid by the Depositor on a Like Amount of Notes for such period.
     “Additional Distribution Date” means each January 15, April 15, July 15 and October 15 commencing on the later of the first such date on which Stripped ITS are Outstanding and July 15, 2006 (or, if any such day is not a Business Day, the next succeeding Business Day).
     “Additional Interest” has the meaning specified in the Base Indenture.
     “Administrative Trustee” means each of the individuals identified as an “Administrative Trustee” in the preamble to this Trust Agreement solely in such individual’s capacity as Administrative Trustee of the Issuer Trust and not in such individual’s individual capacity, or such Administrative Trustee’s successor in interest in such capacity, or any successor trustee appointed as herein provided.
     “Affected Class(es)” means, (i) if a proposed action or inaction or Event of Default or other relevant circumstance relates solely and specifically to Trust Property, each Class for which such Trust Property is a Corresponding Asset, (ii) if a proposed action or inaction or Event of Default or other relevant circumstance does not relate specifically and solely to Trust Property, then each Class that could reasonably be expected to be affected by the action proposed or inaction or Event of Default, and (iii) for purposes of Section 5.16 at any time, the Classes of Trust Preferred Securities for which Notes at such time are Corresponding Assets (that is, (A) for purposes of Sections 5.16(b) and 5.16(c), until the Remarketing Settlement Date the Normal ITS and the Capital ITS and, thereafter, the Capital ITS, (B) for purposes of Section 5.16(d), the Normal ITS and the Stripped ITS, and (C) for purposes of Section 5.16(e), (I) if the Event of Default is of the type referred to in clause (a) of the definition of that term, the Normal ITS and the Capital ITS until the Remarketing Settlement Date and the Capital ITS thereafter, (II) if the Event of Default is of the
Trust Agreement

-2-


 

type described in paragraph (b) of the definition of that term, the Normal ITS and Stripped ITS, (III) if the Event of Default is of the type described in clause (d) of the definition of that term, the Classes of Trust Preferred Securities that were to have been redeemed, and (IV) if the Event of Default is of the type described in any of clause (c), (e) or (f) of the definition of that term, each Class of Trust Preferred Securities then outstanding).
     “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
     “Agent Agreement” has the meaning specified in Section 5.4.
     “Authorized Officer” of any Person means any officer of such Person or any Person authorized by or pursuant to a resolution of the Board of Directors of such Person.
     “Bankruptcy Event” means, with respect to any Person:
     (a) the entry of a decree or order by a court having jurisdiction in the premises judging such Person a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjudication or composition of or in respect of such Person under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of such Person or of any substantial part of its property or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or
     (b) the institution by such Person of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or similar official) of such Person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by such Person in furtherance of any such action.
     “Bankruptcy Laws” has the meaning specified in Section 12.9.
     “Base Indenture” means the Junior Subordinated Indenture, dated as of April 28, 2005, between the Depositor and Delaware Trust Company, National Association (the “Original Note Trustee”), as amended and supplemented by the First Supplemental Indenture, dated as of August 3, 2005, between the Depositor and the Original Note Trustee, as further amended and supplemented by the Second Supplemental Indenture, dated as of December 29, 2005, among the Depositor, the Original Note Trustee and the Note Trustee, as amended or supplemented from time to time.
     “Board of Directors” means either the board of directors of any Person or any committee of that board of directors duly authorized to act.
Trust Agreement

-3-


 

     “Book-Entry Transfer” means:
     (a) as to Trust Preferred Securities represented by Book-Entry Trust Preferred Securities Certificates and as to Notes represented by global certificates that settle and clear through a Clearing Agency’s system, transfer or delivery in accordance with the rules and procedures of the applicable Clearing Agency (including, in the case for DTC if it is the Clearing Agency, book-entry deliveries through DTC’s Deposit/Withdrawal at Custodian DWAC system); and
     (b) as to treasury securities (including Qualifying Treasury Securities), transfer or delivery in accordance with the regulations of the United States Department of the Treasury governing book-entry treasury securities, including those currently at 12 C.F.R. Part 357.
     “Book-Entry Trust Preferred Securities” means Trust Preferred Securities the ownership and transfers of which shall be made through book entries by a Clearing Agency as provided in Section 5.11.
     “Book-Entry Trust Preferred Securities Certificate” means a Trust Preferred Securities Certificate evidencing ownership of Book-Entry Trust Preferred Securities.
     “Business Day” means a day other than a Saturday, a Sunday, or any other day on which banking institutions in New York, New York, Minneapolis, Minnesota or Wilmington, Delaware are authorized or required by law or executive order to remain closed.
     “Capital ITS” means a beneficial interest in the Issuer Trust, having a Liquidation Amount of $1,000 per Capital ITS and having the rights provided for Capital ITS in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein.
     “Capital ITS Certificate” means a certificate evidencing ownership of Capital ITS, substantially in the form attached as Exhibit C.
     “Capital ITS Distribution Date” means (i) each April 15 and October 15, commencing on the later of the first such date on which Capital ITS are Outstanding and October 15, 2006 continuing through and including the last such date to occur prior to the Remarketing Date for a Successful Remarketing, and (ii) thereafter for so long as Capital ITS remain outstanding, each day that is an interest payment date for the Notes.
     “Capital ITS Distribution Rate” means (i) from the Closing Date to but not including the Remarketing Settlement Date for a Successful Remarketing, 5.539% per annum (calculated on a 30/360 Basis), and (ii) thereafter, the rate per annum, whether a fixed rate or a rate determined pursuant to a formula, determined pursuant to the Remarketing Agreement in connection with the Remarketing (it being understood and agreed that, if there is not a Successful Remarketing of the Notes, the Capital ITS Distribution Rate pursuant to clause (i) shall remain in effect for so long as Capital ITS are outstanding).
     “Capital ITS Redemption Date” means, with respect to any Capital ITS to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided that (i) each Note Redemption Date shall be a Capital ITS Redemption Date for a Like Amount of Capital ITS and (ii) if a Successful Remarketing occurs, the first Business Day after the Stock Purchase Date shall be a Capital ITS Redemption Date for a redemption in kind pursuant to Section 4.2(c).
Trust Agreement

-4-


 

     “Capital ITS Redemption Price” means, with respect to a redemption of Capital ITS for a Redemption Price payable in cash pursuant to Section 4.2(a) and the related Capital ITS Redemption Date, the redemption price for a Like Amount of Notes redeemed on such date in accordance with the Indenture.
     “Certificate” means a Capital ITS Certificate, a Normal ITS Certificate, a Stripped ITS Certificate or a Common Securities Certificate.
     “Certificate Custodian” means, with respect to the Trust Preferred Securities of a Class, the Securities Registrar, as custodian with respect to the Book-Entry Trust Preferred Securities Certificates representing the Trust Preferred Securities of such Class, or any successor entity thereto.
     “Certificate Depositary Agreement” means the agreement among the Issuer Trust, the Paying Agent and DTC, as the initial Clearing Agency, dated as of the Closing Date.
     “Certificate of Designation” means the “Certificate of Designation Series A Non-Cumulative Perpetual Preferred Stock of U.S. Bancorp”, dated March 16, 2006, setting forth the resolutions of the Depositor’s Board of Directors fixing the designations, voting powers, preferences and relative, participating and other special rights, and qualifications, limitations and restrictions thereof of the shares of the Preferred Stock as a new series of the Depositor’s preferred stock.
     “Certificate of Trust” has the meaning specified in the recitals hereof, as amended from time to time.
     “Class” means each of the Normal ITS, the Stripped ITS, the Capital ITS and the Common Securities, each as a class of beneficial interests in the Issuer Trust.
     “Clearing Agency” means an organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. DTC will be the initial Clearing Agency.
     “Clearing Agency Participant” means a broker, dealer, bank, other financial institution or other Person for whom from time to time a Clearing Agency effects book-entry transfers and pledges of securities deposited with the Clearing Agency.
     “Closing Date” means the Time of Delivery, which date is also the date of execution and delivery of this Trust Agreement.
     “Collateral Account” has the meaning specified in the Collateral Agreement.
     “Collateral Agent” means U.S. Bank National Association, as Collateral Agent under the Collateral Agreement until a successor Collateral Agent shall have been appointed and qualified pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Collateral Agent” shall mean the Person who is then the Collateral Agent thereunder.
     “Collateral Agreement” means the Collateral Agreement, dated as of the date hereof, among the Depositor, the Collateral Agent, the Custodial Agent, the Securities Intermediary, the Issuer Trust (acting through the Property Trustee) and the Securities Registrar for the ITS, as amended from time to time.
Trust Agreement

-5-


 

     “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
     “Common Securities Certificate” means a certificate evidencing ownership of Common Securities, substantially in the form attached as Exhibit D.
     “Common Security” means a beneficial interest in the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights provided therefor in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein.
     “Contingent Disposition Election” has the meaning specified in Section 5.14(a)(ii).
     “Contingent Exchange Election” has the meaning specified in Section 5.14(a)(i).
     “Contract Payments” has the meaning specified in the Stock Purchase Contract Agreement.
     “Corresponding Assets” means, with respect to each $1,000 Liquidation Amount of Trust Securities:
     (a) in the case of Normal ITS and Common Securities, (i) from the Time of Delivery to but not including the Remarketing Settlement Date for a Successful Remarketing, $1,000 principal amount of Pledged Notes and a 1/100th interest in a Stock Purchase Contract, (ii) from and including the Remarketing Settlement Date for a Successful Remarketing to but not including the Stock Purchase Date, the U.S. Bank Deposit made with the net proceeds of each $1,000 principal amount of Pledged Notes sold in such Successful Remarketing on such Remarketing Settlement Date and a 1/100th interest in a Stock Purchase Contract, and (iii) from and including the Stock Purchase Date and thereafter for so long as Normal ITS are outstanding, 1/100th of a share of Preferred Stock;
     (b) in the case of Stripped ITS, (i) from the date of issuance for each Stripped ITS to but not including the Stock Purchase Date, $1,000 principal amount of Pledged Treasury Securities and a 1/100th interest in a Stock Purchase Contract, and (ii) from and including the Stock Purchase Date and thereafter for so long as Stripped ITS are outstanding, 1/100th of a share of Preferred Stock, subject to Section 4.8; and
     (c) in the case of Capital ITS, from the date of issuance for each Capital ITS, $1,000 principal amount of Notes, subject to Section 5.14.
     “Corporate Trust Office” means (i) when used with respect to the Property Trustee, the office of the Property Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn: Corporate Trust Administration, and (ii) when used with respect to the Note Trustee, the principal office of the Note Trustee located at Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attn: Corporate Trust Administration.
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     “Custodial Agent” means U.S. Bank National Association, as Custodial Agent under the Collateral Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Custodial Agent” shall mean the Person who is then the Custodial Agent thereunder.
     “Custody Account” has the meaning specified in the Collateral Agreement.
     “Deferred Contract Payment Amount” means, at any time for each $100,000 stated amount of Stock Purchase Contracts, the amount of the Contract Payments accrued on such stated amount that has been deferred and not paid by reason of the Depositor’s exercise of its right to defer payment of Contract Payments pursuant to Section 2.7 of the Stock Purchase Contract Agreement, together with interest accrued on such amount in accordance with the terms of the Stock Purchase Contract Agreement.
     “Deferred Note Interest Amount” means, at any time for each $1,000 principal amount of Notes, the amount of interest accrued on such principal amount that has been deferred and not paid by reason of the Depositor’s exercise of its right to defer payment of interest pursuant to Section 3.11 of the Base Indenture or Section 2.5 of the Indenture Supplement, together with interest accrued on such amount in accordance with the terms of the Indenture and the Indenture Supplement.
     “Definitive Trust Preferred Securities Certificates” means either or both (as the context requires) of (i) Trust Preferred Securities Certificates issued as Book-Entry Trust Preferred Securities Certificates as provided in Section 5.11, and (ii) Trust Preferred Securities Certificates issued in certificated, fully registered form as provided in Section 5.15.
     “Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. C. ss. 3801 et seq., as it may be amended from time to time.
     “Delaware Trustee” means the Person identified as the “Delaware Trustee” in the preamble to this Trust Agreement, solely in its capacity as Delaware Trustee of the Issuer Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor Delaware trustee appointed as herein provided.
     “Depositor” has the meaning specified in the preamble to this Trust Agreement.
     “Direct Action” has the meaning specified in Section 5.16(c) and Section 5.16(d).
     “Distribution Date” means an Additional Distribution Date, a Capital ITS Distribution Date or a Regular Distribution Date.
     “Distribution Period” means:
     (i) with respect to Normal ITS, Stripped ITS and Common Securities, each period of time beginning on a Regular Distribution Date (or the Closing Date in the case of the Distribution Period ending in October 2006) and continuing to but not including the next succeeding Regular Distribution Date for such Class; and
     (ii) with respect to Capital ITS, each period of time beginning on a Capital ITS Distribution Date (or the Closing Date in the case of the Distribution Period ending in
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October 2006) and continuing to but not including the next succeeding Capital ITS Distribution Date.
     “Distributions” means amounts payable in respect of the Trust Securities as provided in Section 4.1.
     “Dividend Payment Date” has the meaning specified in the Certificate of Designation.
     “DTC” means The Depository Trust Company.
     “Early Dissolution Event” has the meaning specified in Section 9.2.
     “Early Settlement Event” has the meaning specified in the Indenture Supplement.
     “Event of Default” means any one of the following events (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
     (a) the occurrence of a Note Event of Default; or
     (b) the occurrence of a Preferred Stock Default; or
     (c) default by the Issuer Trust in the payment of any Distribution when it becomes due and payable, and continuation of such default for a period of 30 days; or
     (d) default by the Issuer Trust in the payment of any Redemption Price of any Trust Security when it becomes due and payable; or
     (e) default in the performance, or breach, in any material respect, of any covenant or warranty of the Issuer Trustees in this Trust Agreement (other than those specified in clause (b) or (c) above) and continuation of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Issuer Trustees and to the Depositor by the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Trust Preferred Securities a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
     (f) the occurrence of a Bankruptcy Event with respect to the Property Trustee if a successor Property Trustee has not been appointed within 90 days thereof.
     “Excess Proceeds Distribution” means the distribution that each Holder of Stripped ITS shall receive on each Additional Distribution Date on a pro rata basis from the Trust of the amount by which the proceeds of the Qualifying Treasury Securities pledged by the Trust in respect of Stock Purchase Contracts maturing at least one business day prior to such date exceed the amount required to purchase replacement Qualifying Treasury Securities.
     “Exchange” has the meaning specified in Section 5.13(a).
     “Exchange Act” means the Securities Exchange Act of 1934, and any successor statute thereto, in each case as amended from time to time.
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     “Exchange Period” means the Collateral Agent’s and the Securities Registrar’s normal business hours on any Business Day other than (i) any day in January, April, July or October that is on or after the first day of such month through the 15th day of such month (or the next Business Day if the 15th day is not a Business Day) and (ii) the period from 3:00 P.M., New York City time, on the second Business Day before any Remarketing Date to but not including the Business Day after that Remarketing Date.
     “Failed Remarketing” has the meaning specified in the Indenture.
     “Federal Reserve Board” means the Board of Governors of the Federal Reserve System, as from time to time constituted, or if at any time after the execution of this Trust Agreement the Federal Reserve is not existing and performing the duties now assigned to it, then the bodies performing such duties at such time, or the Federal Reserve Bank of Minneapolis, or any successor Federal reserve bank having primary jurisdiction over the Depositor.
     “Final Remarketing” has the meaning specified in the Indenture.
     “Guarantee Agreement” means the Guarantee Agreement executed and delivered by the Depositor and Wilmington Trust Company, a Delaware banking corporation, as guarantee trustee, contemporaneously with the execution and delivery of this Trust Agreement, for the benefit of the holders of the Trust Preferred Securities, as amended from time to time.
     “Holder” means, with respect to a Trust Security, the Person in whose name the Trust Security evidenced by a Certificate is registered in the Security Register (and any such Person shall be deemed to be a beneficial owner within the meaning of the Delaware Statutory Trust Act); provided, however, that solely for the purpose of determining whether the Holders of the requisite number of ITS have voted on any matter (and not for any other purpose hereunder), if the ITS remains in the form of one or more Book-Entry Trust Preferred Securities Certificates and if the Clearing Agency (or its nominee) that is the registered holder of such Book-Entry Trust Preferred Securities Certificate has sent an omnibus proxy assigning voting rights to the Clearing Agency Participants to whose accounts the ITS are credited on the record date, the term “Holder” shall mean such Clearing Agency Participant acting at the direction of the Owners.
     “Indemnified Person” has the meaning specified in Section 8.6(c).
     “Indenture” means the Base Indenture and the Indenture Supplement, taken together.
     “Indenture Supplement” means the Third Supplemental Indenture to the Base Indenture, dated as of March 17, 2006, between the Depositor and the Note Trustee, as amended or supplemented from time to time.
     “Investment Company Act” means the Investment Company Act of 1940, or any successor statute thereto, in each case as amended from time to time.
     “Issuer Trust” means the Delaware statutory trust known as “USB Capital IX”, which was created under the Delaware Statutory Trust Act pursuant to the Original Trust Agreement and the filing of the Certificate of Trust, and continued pursuant to this Trust Agreement.
     “Issuer Trustees” means, collectively, the Property Trustee, the Delaware Trustee, and the Administrative Trustees.
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     “ITS” means each of the Normal ITS, the Stripped ITS and the Capital ITS.
     “Lien” means any lien, pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership interest, hypothecation, assignment, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever.
     “Like Amount” means:
     (a) with respect to a distribution of Notes to Holders of Normal ITS, Capital ITS or Common Securities in connection with a dissolution or liquidation of the Issuer Trust or a redemption in kind of Capital ITS pursuant to Section 4.2(c), Notes having a principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom such Notes are distributed;
     (b) with respect to a distribution of Pledged Treasury Securities to Holders of Stripped ITS in connection with a dissolution or liquidation of the Issuer Trust, Pledged Treasury Securities having a principal amount equal to the Liquidation Amount of the Stripped ITS to whom such Pledged Treasury Securities are distributed;
     (c) with respect to a distribution of Preferred Stock or fractional interests in Preferred Stock to Holders of Trust Securities in connection with a dissolution or liquidation of the Issuer Trust, Preferred Stock or a fractional interest in a share of Preferred Stock (which may be effected by the Issuer Trust through the creation of depositary shares) having a liquidation preference equal to the Liquidation Amount of the Trust Securities of the Holder to whom such shares of Preferred Stock or a fractional interest in a share of Preferred Stock (including through a depositary share) are distributed;
     (d) with respect to any distribution of Additional Amounts to Holders of Normal ITS, Capital ITS or Common Securities, Notes having a principal amount equal to the Liquidation Amount of the Normal ITS, Capital ITS or Common Securities in respect of which such distribution is made;
     (e) with respect to a redemption of Preferred Stock, 1/100th of a share of Preferred Stock for each Normal ITS or Common Security;
     (f) with respect to an Exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS pursuant to Section 5.13(b), a number of Stripped ITS and a number of Capital ITS in each case equal to the number of Normal ITS included in such Exchange (e.g., if 1,000 Normal ITS are being Exchanged, the Holder will receive 1,000 Stripped ITS and 1,000 Capital ITS in accordance with and subject to Section 5.13);
     (g) with respect to an Exchange of Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities, a number of Normal ITS equal to the number of Stripped ITS and the number of Capital ITS being Exchanged (e.g., if 1,000 Stripped ITS and 1,000 Capital ITS are being Exchanged, the Holder will receive upon the Exchange 1,000 Normal ITS together with $1,000,000 principal amount of Qualifying Treasury Securities released from the Pledge, in accordance with and subject to Section 5.13(e));
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     (h) with respect to Notes (including Pledged Notes as applicable) being deposited or delivered in connection with an Exchange, Notes having a principal amount equal to $1,000 for each normal ITS involved in the Exchange;
     (i) with respect to Section 5.16(c), $1,000 principal amount of Notes for each $1,000 Liquidation Amount of Trust Preferred Securities of each Affected Class; and
     (j) with respect to Section 5.16(d), 1/100th of a Stock Purchase Contract with its stated amount of $100,000 for each $1,000 Liquidation Amount of Trust Preferred Securities of the Affected Classes.
     “Liquidation Amount” means the stated amount of $1,000 per Trust Security.
     “Liquidation Date” means the date of the distribution of the assets of the Issuer Trust to Holders pursuant to Section 9.4.
     “Liquidation Distribution” has the meaning specified in Section 9.4(d).
     “Majority in Liquidation Amount” means as to a Class or Classes of Trust Securities, except as provided by the Trust Indenture Act, Trust Securities of such Class or Classes representing more than 50% of the aggregate Liquidation Amount of all Outstanding Trust Securities of such Class or Classes.
     “Normal ITS” means a beneficial interest in the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights provided for Normal ITS in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein.
     “Normal ITS Certificate” means a certificate evidencing ownership of Normal ITS, substantially in the form attached as Exhibit E.
     “Normal ITS Distribution Rate” means (i) from the Closing Date to but not including the later of the Regular Distribution Date in April 2011 and the Stock Purchase Date (and for each related Distribution Period), 6.189% per annum (calculated on a 30/360 Basis) and (ii) thereafter, for each Distribution Period and related Regular Distribution Date, the greater of (A) Three-Month LIBOR for such Distribution Period plus 1.02% and (B) 3.50% (calculated on an Actual/360 Basis).
     “Normal ITS Redemption Date” means, with respect to any Normal ITS to be redeemed, the date fixed for such redemption by or pursuant to this Trust Agreement; provided that each Preferred Stock Redemption Date shall be a Redemption Date for a like amount of Normal ITS.
     “Normal ITS Redemption Price” means, with respect to any Normal ITS and Common Securities and the related Normal ITS Redemption Date, the redemption price for a Like Amount of Preferred Stock redeemed in accordance with the Certificate of Designation.
     “Note Event of Default” means any “Event of Default” specified in Section 5.1 of the Base Indenture.
     “Note Redemption Date” means, with respect to any Notes to be redeemed under the Indenture, the date fixed for redemption of such Notes under the Indenture.
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     “Note Redemption Price” means, with respect to any Notes to be redeemed under the Indenture, the Redemption Price for such redemption and related Note Redemption Date determined in accordance with the Indenture.
     “Note Trustee” means Wilmington Trust Company, a Delaware banking corporation, solely in its capacity as trustee pursuant to the Indenture and not in its individual capacity, or its successor in interest in such capacity, or any successor trustee appointed as provided in the Indenture.
     “Notes” means the $1,251,000,000 initial aggregate principal amount of the Depositor’s Remarketable Junior Subordinated Notes due 2042 issued pursuant to the Indenture.
     “Notice of Contingent Disposition Election” has the meaning specified in Section 5.14(f).
     “Notice of Contingent Exchange Election” has the meaning specified in Section 5.14(d)(i).
     “Officers’ Certificate” means, with respect to any Person, a certificate signed by any two Authorized Officers of such Person. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement shall include:
     (a) a statement by each officer signing the Officers’ Certificate that such officer has read the covenant or condition and the definitions relating thereto;
     (b) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers’ Certificate;
     (c) a statement that such officer has made such examination or investigation as, in such officer’s opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and
     (d) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with.
     “Opinion of Counsel” means a written opinion of counsel, who may be counsel for or an employee of the Depositor or any Affiliate of the Depositor.
     “Original Trust Agreement” has the meaning specified in the recitals to this Trust Agreement.
     “Outstanding,” when used with respect to Trust Securities of a Class, means, as of the date of determination, all Trust Securities of such Class theretofore executed and delivered under this Trust Agreement, except:
     (a) Trust Securities of such Class theretofore canceled by the Property Trustee or delivered to the Property Trustee for cancellation;
     (b) Trust Securities of such Class for whose payment or redemption money in the necessary amount has been theretofore deposited with the Property Trustee or any Paying Agent; provided that if such Trust Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Trust Agreement; and
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     (c) Trust Securities of such Class that have been paid or in exchange for or in lieu of which other Trust Preferred Securities have been executed and delivered pursuant to Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite Liquidation Amount of the Outstanding Trust Preferred Securities of a Class have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Trust Preferred Securities of such Class owned by the Depositor, any Issuer Trustee, or any Affiliate of the Depositor or any Issuer Trustee shall be disregarded and deemed not to be Outstanding, except that (a) in determining whether any Issuer Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Trust Preferred Securities of such Class that such Issuer Trustee actually knows to be so owned shall be so disregarded, and (b) the foregoing shall not apply at any time when all of the outstanding Trust Preferred Securities of such Class are owned by the Depositor, one or more of the Issuer Trustees, and/or any such Affiliate. Trust Preferred Securities of a Class so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Administrative Trustees the pledgee’s right so to act with respect to such Trust Preferred Securities and that the pledgee is not the Depositor or any Affiliate of the Depositor.
     “Owner” means each Person who is the beneficial owner of Book-Entry Trust Preferred Securities as reflected in the records of the Clearing Agency or, if a Clearing Agency Participant is not the Owner, then as reflected in the records of a Person maintaining an account with such Clearing Agency (directly or indirectly, in accordance with the rules of such Clearing Agency).
     “Paying Agent” means any paying agent or co-paying agent appointed pursuant to Section 5.9 and shall initially be U.S. Bank National Association.
     “Payment Account” means a segregated non-interest-bearing corporate trust account maintained by the Property Trustee initially with U.S. Bank National Association (in its corporate capacity and not as Paying Agent), in its trust department for the benefit of the Holders in which all amounts paid in respect of the Notes will be held and from which the Property Trustee, through the Paying Agent, shall make payments to the Holders in accordance with Sections 4.1 and 4.2. After the Stock Purchase Date, the Payment Account may at any time be established with any commercial bank by the Property Trustee.
     “Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint stock company, company, limited liability company, trust, unincorporated association, or government or any agency or political subdivision thereof, or any other entity of whatever nature.
     “Pledge” means the pledge under the Collateral Agreement of Notes or Qualifying Treasury Securities, as the case may be.
     “Pledged Notes” has the meaning specified in the Collateral Agreement.
     “Pledged Treasury Securities” has the meaning specified in the Collateral Agreement.
     “Predecessor Capital ITS Certificate” of any particular Capital ITS Certificate means every previous Capital ITS Certificate evidencing all or a portion of the rights and obligations of the Depositor and the Holder under the Capital ITS evidenced thereby; and, for the purposes of this definition, any Capital ITS Certificate delivered under Section 5.5 in exchange for or in lieu of a
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mutilated, destroyed, lost or stolen Capital ITS Certificate shall be deemed to evidence the same rights and obligations of the Depositor and the Holder as the mutilated, destroyed, lost or stolen Capital ITS Certificate.
     “Predecessor Certificate” means a Predecessor Normal ITS Certificate, a Predecessor Stripped ITS Certificate or a Predecessor Capital ITS Certificate, as applicable.
     “Predecessor Normal ITS Certificate” of any particular Normal ITS Certificate means every previous Normal ITS Certificate evidencing all or a portion of the rights and obligations of the Depositor and the Holder under the Normal ITS evidenced thereby; and, for the purposes of this definition, any Normal ITS Certificate delivered under Section 5.5 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Normal ITS Certificate shall be deemed to evidence the same rights and obligations of the Depositor and the Holder as the mutilated, destroyed, lost or stolen Normal ITS Certificate.
     “Predecessor Stripped ITS Certificate” of any particular Stripped ITS Certificate means every previous Stripped ITS Certificate evidencing all or a portion of the rights and obligations of the Depositor and the Holder under the Stripped ITS evidenced thereby; and, for the purposes of this definition, any Stripped ITS Certificate delivered under Section 5.5 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Stripped ITS Certificate shall be deemed to evidence the same rights and obligations of the Depositor and the Holder as the mutilated, destroyed, lost or stolen Stripped ITS Certificate.
     “Preferred Stock” means the Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share and $1.00 par value per share, of the Depositor.
     “Preferred Stock Default” means the failure of the Depositor to comply in any material respect with any of its obligations (i) under the Stock Purchase Contract Agreement or (ii) as issuer of the Preferred Stock, including in the Certificate of Designation, the Depositor’s certificate of incorporation, or arising under applicable law.
     “Preferred Stock Redemption Date” means, with respect to any shares of Preferred Stock to be redeemed under the Certificate of Designation, the date fixed for redemption of such shares under the Certificate of Designation.
     “Proceeds” has the meaning specified in the Collateral Agreement.
     “Property Trustee” means the Person identified as the “Property Trustee” in the preamble to this Trust Agreement, solely in its capacity as Property Trustee of the Issuer Trust and not in its individual capacity, or its successor in interest in such capacity, or any successor property trustee appointed as herein provided.
     “Prospectus” means the prospectus, dated March 10, 2006, of the Depositor relating to the offering of the Normal ITS, as supplemented by the prospectus supplement, dated March 14, 2006.
     “Qualifying Treasury Securities” has the meaning specified in Section 10.1.
     “Recombination Notice and Request” has the meaning specified in Section 5.13(d)(ii).
     “Redemption Date” means a Normal ITS Redemption Date or a Capital ITS Redemption Date, as applicable.
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     “Redemption Price” means, (i) with respect to a redemption of Normal ITS, the Normal ITS Redemption Price, and (ii) with respect to a redemption of Capital ITS, the Capital ITS Redemption Price.
     “Regular Distribution Date” means:
     (a) each April 15 and October 15 occurring prior to and including the later of April 15, 2011 and the Stock Purchase Date, commencing October 15, 2006 (or, in the case of Stripped ITS, the first such date on which Stripped ITS are outstanding);
     (b) after the later of April 15, 2011 and the Stock Purchase Date, each January 15, April 15, July 15 and October 15, or if any such date is not a Business Day, the next Business Day; and
     (c) the Stock Purchase Date if not otherwise a Regular Distribution Date;
provided, however, that the last Regular Distribution Date for the Stripped ITS shall be the Stock Purchase Date.
     “Relevant Trustee” shall have the meaning specified in Section 8.10.
     “Remarketing” has the meaning specified in the Indenture.
     “Remarketing Agent” means, as to a Remarketing and Remarketing Agreement, the remarketing agent and any successor or replacement remarketing agent appointed by the Depositor.
     “Remarketing Agent’s Fee” means, as to the Remarketing Agent and a Remarketing, the fee provided for in the Remarketing Agreement.
     “Remarketing Agreement” means the Remarketing Agreement to be entered into prior to the first Remarketing among the Depositor, the Issuer Trust (acting through the Property Trustee) and the Remarketing Agent, as amended or supplemented from time to time.
     “Remarketing Date” has the meaning specified in the Indenture.
     “Remarketing Settlement Date” has the meaning specified in the Indenture.
     “Reset Rate” has the meaning specified in the Indenture Supplement (and is the interest rate applicable to the Notes and the Capital ITS Distribution Rate commencing on the Remarketing Settlement Date).
     “Responsible Officer” means, with respect to any Issuer Trustee other than an Administrative Trustee, the President, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer, any Assistant Trust Officer or any Financial Services Officer of such Issuer Trustee.
     “Securities Act” means the Securities Act of 1933, and any successor statute thereto, in each case as amended from time to time.
     “Securities Intermediary” means U.S. Bank National Association, as Securities Intermediary under the Collateral Agreement until a successor Securities Intermediary shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter
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“Securities Intermediary” shall mean such successor or any subsequent successor who is appointed pursuant to the Collateral Agreement.
     “Securities Register” has the meaning specified in Section 5.4.
     “Securities Registrar” means the transfer agent and registrar designated by the Administrative Trustees for the Trust Securities pursuant to Section 5.4.
     “Stock Purchase Contract” has the meaning specified in the Stock Purchase Contract Agreement.
     “Stock Purchase Contract Agreement” means the Stock Purchase Contract Agreement, dated as of the date hereof, between the Depositor and the Property Trustee (acting on behalf of the Issuer Trust).
     “Stock Purchase Date” has the meaning specified in the Stock Purchase Contract Agreement.
     “Stripped ITS” means a beneficial interest in the Issuer Trust, having a Liquidation Amount of $1,000 and having the rights provided for Stripped ITS in this Trust Agreement, including the right to receive Distributions and a Liquidation Distribution as provided herein.
     “Stripped ITS Certificate” means a certificate evidencing ownership of Stripped ITS, substantially in the form attached as Exhibit F.
     “Stripped ITS Distribution Rate” means 0.65% per annum, calculated on a 30/360 Basis.
     “Stripped ITS Treasury Roll Over Amount” means, for each Additional Distribution Date on which Stripped ITS are Outstanding, an amount per $1,000 of Stripped ITS equal to the excess (if any) of $1,000 (which is the principal amount of Pledged Treasury Securities per Stripped ITS maturing at least one but not more than six Business Days prior to such date) over the amount required to be expended by the Collateral Agent to purchase Qualifying Treasury Securities maturing at least one but not more than six Business Days prior to July 15, 2006 (for the period to such date if Stripped ITS are Outstanding before such date) and thereafter the next succeeding January 15, April 15, July 15 or October 15, as applicable, in the amount of $1,000.
     “Stripping Notice and Request” has the meaning specified in Section 5.13(b)(iii).
     “Successful” has the meaning specified in the Indenture Supplement.
     “Successor Securities” has the meaning specified in Section 9.5.
     “30/360 Basis” means, for purposes of calculating a rate for Distributions, such rate calculated on the basis of a 360-day year consisting of twelve 30-day months.
     “Three-Month LIBOR” means, for any Distribution Period commencing on or after the Stock Purchase Date, “Three-Month LIBOR” for the corresponding Dividend Period as defined in and determined pursuant to the Certificate of Designation.
     “Time of Delivery” means March 17, 2006.
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     “Transaction Agreements” means each of the Stock Purchase Contract Agreement, the Collateral Agreement, the Underwriting Agreement, the Notes, the Certificate Depositary Agreement, the Indenture, the Indenture Supplement and any other agreement determined by an Issuer Trustee to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees under this Trust Agreement.
     “Trust Agreement” means this Amended and Restated Trust Agreement, as the same may be modified, amended or supplemented in accordance with the applicable provisions hereof, including (i) all exhibits, and (ii) for all purposes of this Trust Agreement and any such modification, amendment or supplement, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this Trust Agreement and any such modification, amendment or supplement, respectively.
     “Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939, as so amended.
     “Trust Preferred Securities” means the Normal ITS, the Stripped ITS and the Capital ITS.
     “Trust Preferred Securities Certificate” means a Normal ITS Certificate, a Stripped ITS Certificate or a Capital ITS Certificate.
     “Trust Property” means (a) the Notes for so long as they are owned by the Issuer Trust in accordance with this Trust Agreement, (b) the Stock Purchase Contracts, (c) the Preferred Stock once acquired by the Issuer Trust pursuant to the Stock Purchase Contracts, (d) treasury securities (that are required to be Qualifying Treasury Securities when delivered) delivered to the Property Trustee (or the Collateral Agent) pursuant to Section 5.13 or Section 5.14, (e) the rights of the Issuer Trust under the Transaction Agreements, and (f) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Property Trustee pursuant to the Trust Agreement.
     “Trust Security” means any one of the Common Securities or the Trust Preferred Securities.
     “Trust Securities Certificate” means any one of the Common Securities Certificates or the Trust Preferred Securities Certificates.
     “Underwriting Agreement” means the Underwriting Agreement, dated March 14, 2006, among the Issuer Trust, the Depositor, and the underwriters named therein.
     “United States Person” means, for U.S. federal income tax purposes, a citizen or resident of the United States, a domestic partnership, a domestic corporation, an estate the income of which is subject to U.S. federal income taxation regardless of its source, and a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust, and (ii) one or more United States persons have the authority to control all substantial decisions of the trust.
     “U.S. Bank Deposit” has the meaning specified in the Stock Purchase Contract Agreement.
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ARTICLE II
Continuation of the Issuer Trust; Issuance of Trust Preferred
Securities; and Related Matters
     Section 2.1 Name.
     The trust continued hereby shall be known as “USB Capital IX,” as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders and the other Issuer Trustees, in which name the Administrative Trustees and the other Issuer Trustees may conduct the business of the Issuer Trust, make and execute contracts and other instruments on behalf of the Issuer Trust and sue and be sued on behalf of the Issuer Trust.
     Section 2.2 Office of the Delaware Trustee; Principal Place of Business.
     The address of the Delaware Trustee in the State of Delaware is Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust Administration, or such other address in the State of Delaware as the Delaware Trustee may designate by written notice to the Depositor, the Property Trustee and the Administrative Trustees. The principal executive office of the Issuer Trust is c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402
     Section 2.3 Initial Contribution of Trust Property; Organizational Expenses.
     The Issuer Trustees acknowledge receipt from the Depositor in connection with the Original Trust Agreement of the sum of $10, which constituted the initial Trust Property. The Depositor shall pay organizational expenses of the Issuer Trust as they arise or shall, upon request of any Issuer Trustee, promptly reimburse such Issuer Trustee for any such expenses paid by such Issuer Trustee. The Depositor shall not make any claim upon the Trust Property for the payment of such expenses.
     Section 2.4 Issuance of the Trust Preferred Securities.
     (a) On March 14, 2006, the Depositor, on behalf of the Issuer Trust, executed and delivered the Underwriting Agreement, which action is hereby authorized, approved, ratified and confirmed in all respects. Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Issuer Trust, in connection with the execution and delivery on such date of 1,250,000 Normal ITS to the underwriters named in the Underwriting Agreement, shall execute in accordance with Section 5.3 and deliver to the Clearing Agency a Normal ITS Certificate or Certificates that are Book-Entry Trust Preferred Securities Certificates, registered in the name of the Clearing Agency (or its nominee) representing 1,250,000 Normal ITS, against payment of $1,000 per Normal ITS or $1,250,000,000 in the aggregate, net of the applicable underwriting discount determined in accordance with the Underwriting Agreement, as the purchase price therefor in immediately available funds, which funds such Administrative Trustee shall promptly deliver to the Property Trustee or its designee.
     (b) On the date on which an Administrative Trustee, on behalf of the Issuer Trust executes and delivers a Normal ITS Certificate pursuant to Section 2.4(a), such Administrative Trustee shall also execute in accordance with Section 5.3 and deliver to the Clearing Agency or the Certificate Custodian two additional Book-Entry Trust Preferred Securities Certificates, one of which shall be a Capital ITS Certificate and the other of which shall be a Stripped ITS Certificate,
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each representing up to a maximum number of Capital ITS or Stripped ITS, as applicable, that is the same as the number of Normal ITS evidenced by the Certificate contemporaneously issued as a Book-Entry Trust Preferred Securities Certificate pursuant to Section 2.4(b) and Section 2.4(c).
     (c) In order to give effect to Exchanges, the Securities Registrar may, as provided in Section 5.11, endorse Book-Entry Trust Preferred Securities Certificates to reduce or increase the number of Normal ITS, Stripped ITS or Capital ITS evidenced by each such Book-Entry Trust Preferred Securities Certificate, provided that no such endorsement shall result in a Book-Entry Trust Preferred Securities Certificate evidencing a number of Normal ITS, Stripped ITS or Capital ITS exceeding the maximum number set forth on the face of such Certificate.
     Section 2.5 Issuance of the Common Securities; Subscription and Purchase of Notes.
     Contemporaneously with the execution and delivery of this Trust Agreement, an Administrative Trustee, on behalf of the Issuer Trust, shall execute in accordance with Section 5.3 and deliver to the Depositor a Common Securities Certificate, registered in the name of the Depositor, evidencing 1,000 Common Securities, each having a Liquidation Amount of $1,000 and having an aggregate Liquidation Amount of $1,000,000, against payment by the Depositor of the purchase price therefor in immediately available funds, which amount such Administrative Trustee shall promptly deliver to the Property Trustee or its designee. Contemporaneously therewith, an Administrative Trustee, on behalf of the Issuer Trust, shall (x) subscribe to and purchase from the Depositor the Notes registered in the name of the Issuer Trust and having an aggregate initial principal amount equal to $1,251,000,000, (y) shall deliver to the Depositor the purchase price therefor (being the sum of the amounts delivered to the Property Trustee or its designee pursuant to (i) the second sentence of Section 2.4 and (ii) the first sentence of this Section 2.5), and (z) shall instruct the Depositor to deliver the Notes to the Collateral Agent for deposit in the Collateral Account.
     Section 2.6 Declaration of Trust.
     The exclusive purposes and functions of the Issuer Trust are (a) to issue and sell Trust Securities, (b) to use the proceeds from such sale to acquire the Notes, (c) to enter into and perform its obligations under the Transaction Agreements (including, on the Stock Purchase Date, to acquire Preferred Stock pursuant to the Stock Purchase Contracts), (d) to hold the Notes and certain treasury securities and the U.S. Bank Deposit and pledge them to secure the Issuer Trust’s obligations under the Stock Purchase Contracts, and (e) to engage in those activities necessary or incidental thereto. The Depositor hereby appoints the Issuer Trustees as trustees of the Issuer Trust, to have all the rights, powers and duties to the extent set forth herein, and the Issuer Trustees hereby accept such appointment. The Property Trustee hereby declares that it will hold the Trust Property upon and subject to the conditions set forth herein for the benefit of the Issuer Trust and the Holders. The Administrative Trustees shall have all rights, powers and duties set forth herein and in accordance with applicable law with respect to accomplishing the purposes of the Issuer Trust. The Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Property Trustee or the Administrative Trustees, or any of the duties and responsibilities of the Issuer Trustees generally, set forth herein. The Delaware Trustee shall be one of the trustees of the Issuer Trust for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Delaware Statutory Trust Act and for taking such actions as are required to be taken by a Delaware trustee under the Delaware Statutory Trust Act.
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     Section 2.7 Authorization to Enter into Certain Transactions.
     (a) The Issuer Trustees shall conduct the affairs of the Issuer Trust in accordance with the terms of this Trust Agreement. Subject to the limitations set forth in Section 2.7(b), and in accordance with the following clauses (i) and (ii) of this Section 2.7(a), the Issuer Trustees shall have the authority to enter into all transactions and agreements determined by the Issuer Trustees to be appropriate in exercising the authority, express or implied, otherwise granted to the Issuer Trustees under this Trust Agreement, and to perform all acts in furtherance thereof, including the following:
     (i) As among the Issuer Trustees, the Administrative Trustees, and each of them, shall have the power and authority to act on behalf of the Issuer Trust with respect to the following matters:
     (A) execution of the Trust Securities on behalf of the Issuer Trust in accordance with this Trust Agreement and the issuance and sale of the Trust Securities;
     (B) causing the Issuer Trust to perform the Underwriting Agreement and causing the Issuer Trust to enter into, and to execute, deliver and perform the Certificate Depository Agreement and such other agreements as may be necessary or desirable in connection with the purposes and function of the Issuer Trust;
     (C) assisting in the registration of the Trust Preferred Securities under the Securities Act and under state securities or blue sky laws, and the qualification of this Trust Agreement under the Trust Indenture Act;
     (D) assisting in the listing of the Trust Preferred Securities upon such securities exchange or exchanges, if any, as shall be determined by the Depositor, with the registration of the Trust Preferred Securities under the Exchange Act, if required, and with the preparation and filing of all periodic and other reports and other documents pursuant to the foregoing;
     (E) assisting in the sending of notices (other than notices of default) and other information regarding the Trust Securities, the Notes and the Preferred Stock to the Holders in accordance with this Trust Agreement;
     (F) appointing a Paying Agent and a Securities Registrar and any successor Paying Agent or Securities Registrar in accordance with this Trust Agreement to U.S. Bank National Association, as initial Paying Agent and Securities Registrar;
     (G) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware;
     (H) execution and delivery of closing certificates, if any, pursuant to the Underwriting Agreement and any Remarketing Agreement and application for a taxpayer identification number for the Issuer Trust;
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     (I) unless otherwise required by the Delaware Statutory Trust Act, the Trust Indenture Act or other applicable law, execution on behalf of the Issuer Trust (either acting alone or together with any or all of the Administrative Trustees) of any documents that the Administrative Trustees have the power to execute pursuant to this Trust Agreement;
     (J) the taking of any action incidental to the foregoing as the Issuer Trustees may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement; and
     (K) the taking of any action required to be taken by the Administrative Trustees under any of the Transaction Agreements.
     (ii) As among the Issuer Trustees, the Property Trustee shall have the power, duty and authority to act on behalf of the Issuer Trust with respect to the following matters:
     (A) the establishment of the Payment Account;
     (B) the execution and delivery on behalf of the Issuer Trust of the Stock Purchase Contract Agreement, the Collateral Agreement, the Remarketing Agreement, and any other Transaction Agreement other than the Underwriting Agreement and the Certificate Depository Agreement and the performance by the Issuer Trust of its obligations and the exercise by the Issuer Trust of its rights thereunder;
     (C) the receipt of the Notes and, in connection with an Exchange, Notice of Contingent Exchange Election or Remarketing, the receipt of Qualifying Treasury Securities;
     (D) the pledge of Notes and Qualifying Treasury Securities pursuant to the Collateral Agreement;
     (E) the receipt of the Preferred Stock on the Stock Purchase Date;
     (F) the collection of interest, principal and any other payments or instruments (including due bills or promissory notes of the Depositor issuable under or with respect to the Notes) made in respect of the Notes and the holding of such amounts in the Payment Account;
     (G) the collection of the Contract Payments and any other payments or instruments (including due bills or promissory notes of the Depositor issuable under the Stock Purchase Contract Agreement or with respect to the Contract Payments) and the holding of such amounts in the Payment Account;
     (H) the collection of payment of dividends, redemption price and other payments made in respect of the Preferred Stock and the holding of such amounts in the Payment Account;
     (I) the distribution through the Paying Agent of amounts or property or instruments (including due bills or promissory notes of the Depositor issuable
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under or with respect to the Notes or the Stock Purchase Contracts) distributable to the Holders in respect of the Trust Securities;
     (J) the exercise of all of the rights, powers and privileges of a holder of the Notes for so long as the Issuer Trust holds Notes, subject to Articles V and VI of this Trust Agreement;
     (K) the exercise of all of the rights, powers and privileges of a holder of Preferred Stock for so long as the Issuer Trust holds Preferred Stock, subject to Articles V and VI of this Trust Agreement;
     (L) the sending of notices of default and other information regarding the Trust Securities, the Notes, the Preferred Stock and the Transaction Agreements to the Holders in accordance with this Trust Agreement;
     (M) the distribution of the Trust Property in accordance with the terms of this Trust Agreement;
     (N) to the extent provided in this Trust Agreement, the winding up of the affairs of and liquidation of the Issuer Trust and the preparation, execution and filing of the certificate of cancellation with the Secretary of State of the State of Delaware; and
     (O) after an Event of Default (other than under paragraph (b), (c), (d) or (e) of the definition of such term if such Event of Default is by or with respect to the Property Trustee), the taking of any action incidental to the foregoing as the Property Trustee may from time to time determine is necessary or advisable to give effect to the terms of this Trust Agreement and to protect and conserve the Trust Property for the benefit of the Holders (without consideration of the effect of any such action on any particular Holder).
Except as otherwise provided in this Section 2.7(a)(ii), the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 2.7(a)(i).
     (b) So long as this Trust Agreement remains in effect, the Issuer Trust (or the Issuer Trustees acting on behalf of the Issuer Trust) shall not undertake any business, activities or transactions except as expressly provided herein or contemplated hereby. In particular, the Issuer Trustees (acting on behalf of the Issuer Trust) shall not (i) acquire any investments or engage in any activities not authorized by this Trust Agreement, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or interests therein, including to Holders, except as expressly provided herein, (iii) take any action that would cause the Issuer Trust to become taxable as a corporation or classified as a partnership for U.S. federal income tax purposes, (iv) incur any indebtedness for borrowed money or issue any other debt, (v) take or consent to any action that would result in the placement of a Lien on any of the Trust Property, except as expressly provided herein, (vi) apply any of the Trust Property or its proceeds other than as provided herein, (vii) acquire any assets other than the Trust Property, (viii) possess any power or otherwise act in such a way as to vary the Trust Property, except as expressly provided herein, (ix) possess any power or otherwise act in such a way as to vary the terms of the Trust Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Trust Securities) or (x) issue any securities or other evidences of beneficial ownership
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of, or beneficial interest in, the Issuer Trust other than the Trust Securities. The Property Trustee shall defend all claims and demands of all Persons at any time claiming any Lien on any of the Trust Property adverse to the interest of the Issuer Trust or the Holders in their capacity as Holders (other than the Lien created by the Collateral Agreement, which is a permitted Lien).
     (c) In connection with the issuance and sale of the Trust Preferred Securities, the Depositor shall have the right and, if the Depositor shall desire that the actions be taken, the responsibility to assist the Issuer Trust with respect to, or effect on behalf of the Issuer Trust, the following (and any actions taken by the Depositor in furtherance of the following prior to the date of this Trust Agreement are hereby ratified and confirmed in all respects):
     (i) the preparation and filing by the Issuer Trust with the Commission of and the execution on behalf of the Issuer Trust of a registration statement on the appropriate form in relation to the Trust Preferred Securities, including any amendments thereto;
     (ii) the determination of the states in which to take appropriate action to qualify or register for sale all or part of the Trust Preferred Securities and the determination of any and all such acts, other than actions that must be taken by or on behalf of the Issuer Trust, and the advice to the Issuer Trust of actions they must take on behalf of the Issuer Trust, and the preparation for execution and filing of any documents to be executed and filed by the Issuer Trust or on behalf of the Issuer Trust, as the Depositor deems necessary or advisable in order to comply with the applicable laws of any such states;
     (iii) the preparation for filing by the Issuer Trust and execution on behalf of the Issuer Trust of an application to the New York Stock Exchange or any other national stock exchange or the Nasdaq National Market or any other automated quotation system for listing upon notice of issuance of any Trust Preferred Securities and filing with such exchange or self-regulatory organization such notification and documents as may be necessary from time to time to maintain such listing;
     (iv) the negotiation of the terms of, and the execution and delivery of, the Underwriting Agreement providing for the sale of the Trust Preferred Securities; and
     (v) the taking of any other actions necessary or desirable to carry out any of the foregoing activities.
     (d) Notwithstanding anything herein to the contrary, the Administrative Trustees are authorized and directed to conduct the affairs of the Issuer Trust and to operate the Issuer Trust so that the Issuer Trust will not be deemed to be an “investment company” required to be registered under the Investment Company Act, and will not be taxable as a corporation or classified as a partnership for U.S. federal income tax purposes. In this connection, the Depositor and the Administrative Trustees are authorized to take any action, not inconsistent with applicable law, the Certificate of Trust or this Trust Agreement, that they determine in their discretion to be necessary or desirable for such purposes, as long as such action does not adversely affect in any material respect the interests of the Holders of the Outstanding Trust Preferred Securities. In no event shall the Depositor or the Issuer Trustees be liable to the Issuer Trust or the Holders for any failure to comply with this Section that results from a change in law or regulation or in the interpretation thereof.
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     Section 2.8 Assets of Issuer Trust.
     The assets of the Issuer Trust shall consist solely of the Trust Property.
     Section 2.9 Title to Trust Property.
     Legal title to all Trust Property shall be vested at all times in the Property Trustee (in its capacity as such) and shall be held and administered by the Property Trustee in trust for the benefit of the Issuer Trust and the Holders in accordance with this Trust Agreement, subject to the terms and provisions of the Collateral Agreement.
ARTICLE III
Payment Account
     Section 3.1 Payment Account.
     (a) On or prior to the Closing Date, the Property Trustee shall establish or cause to be established the Payment Account. The Property Trustee and its agents shall have exclusive control and sole right of withdrawal with respect to the Payment Account for the purpose of making deposits in and withdrawals from the Payment Account in accordance with this Trust Agreement. All monies and other property deposited or held from time to time in the Payment Account shall be held by the Property Trustee in the Payment Account for the exclusive benefit of the Holders and for distribution as herein provided, including (and subject to) any priority of payments provided for herein.
     (b) The Property Trustee shall deposit or cause to be deposited in the Payment Account, promptly upon receipt, (i) all payments of principal of or interest on, and any other payments or proceeds with respect to, the Notes, (ii) all Contract Payments, (iii) all Excess Proceeds Distributions, (iv) all Stripped ITS Treasury Roll Over Amounts, (v) all payments of dividends or redemption price on, and other payments or proceeds with respect to, the Preferred Stock or the Stock Purchase Contracts and (vi) all other cash amounts received as payments on or with respect to the Trust Property. Amounts held in the Payment Account shall not be invested by the Property Trustee pending distribution thereof.
ARTICLE IV
Distributions; Redemption, Etc.
     Section 4.1 Distributions.
     (a) The Trust Securities represent beneficial interests in the Issuer Trust, and Distributions will be made on the Trust Securities of a Class on applicable Distribution Dates in amounts that correspond to amounts of interest, dividends or Contract Payments, as applicable (and (i) in the case of the Normal ITS, Capital ITS and Common Securities, Additional Amounts and Deferred Note Interest Amounts, and (ii) in the case of the Normal ITS, Stripped ITS and Common Securities, Deferred Contract Payment Amounts) that are received by the Property Trustee or the Paying Agent on or in connection with each applicable Distribution Date on the Trust Property that is the Corresponding Assets for such Class, as provided in Sections 4.1(b), (c) and (d).
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     (b) In the case of the Normal ITS and the Common Securities, subject to Section 4.1(e):
     (i) Distributions will be payable in cash on each Regular Distribution Date;
     (ii) the Distributions payable on each Regular Distribution Date for the related Distribution Period will be at a rate per annum applied to the Liquidation Amount per Normal ITS and Common Security equal to the Normal ITS Distribution Rate for such Distribution Period (with the consequence that the amount of the Distribution for each $1,000 of Normal ITS or Common Securities payable on each Regular Distribution Date being equal to (x) the sum of the amount of interest payable on such Regular Distribution Date on a Like Amount of Notes (without giving effect to any change in the interest rate on the Notes in connection with a Remarketing) plus 1/100th of the Contract Payment payable on a Stock Purchase Contract having a stated amount of $100,000 for each Distribution Period ending on or before the Stock Purchase Date and (y) the amount of dividends payable on such Regular Distribution Date on a Like Amount of Preferred Stock for each Distribution Period thereafter;
     (iii) Distributions shall be cumulative for each Regular Distribution Date to and including the Stock Purchase Date (because the Corresponding Assets to such date include Notes or Pledged Securities in a Like Amount) and non-cumulative thereafter (because the Corresponding Assets thereafter are the Preferred Stock); and
     (iv) the amount of Distributions payable for any Distribution Period ending on or prior to the Stock Purchase Date shall include the Additional Amounts received by the Issuer Trust, if any.
     (c) In the case of Capital ITS, subject to Section 4.1(e):
     (i) Distributions will be payable in cash on each Capital ITS Distribution Date;
     (ii) the Distributions payable on each Capital ITS Distribution Date for the related Distribution Period will be at a rate per annum applied to the Liquidation Amount per Capital ITS equal to the Capital ITS Distribution Rate for such Distribution Period, with the consequence that the amount of the Distribution for each $1,000 of Capital ITS payable on each Capital ITS Distribution Date is equal to the amount of interest payable on or accrued to (as applicable) such Distribution Date on a Like Amount of Notes;
     (iii) Distributions shall be cumulative; and
     (iv) the amount of Distributions payable for any Distribution Period shall include the Additional Amounts, if any.
     (d) In the case of Stripped ITS, subject to Section 4.1(e):
     (i) Distributions will be payable in cash on each Regular Distribution Date;
     (ii) the Distributions payable on each Regular Distribution Date for the related Distribution Period will be at a rate per annum applied to the Liquidation Amount per Stripped ITS equal to 1/100th of the Contract Payment payable on a Stock Purchase
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Contract having a stated amount of $100,000 on such Stripped ITS Distribution Date (expressed as a percentage);
     (iii) Distributions shall be cumulative; and
     (iv) additionally, on each Additional Distribution Date on which Stripped ITS are Outstanding (or as promptly thereafter as the Collateral Agent and the Paying Agent determine to be practicable), the Property Trustee shall distribute or cause to be distributed through the Paying Agent an amount per $1,000 of Stripped ITS equal to, the Stripped ITS Treasury Roll-Over Amount for such Additional Distribution Date.
     (e) Distributions on the Trust Securities of a Class shall be made by the Paying Agent from the Payment Account and shall be payable on each Distribution Date only to the extent that the Issuer Trust has funds then on hand and available in the Payment Account from the Corresponding Assets of such Class for the payment of such Distributions. The Issuer Trust will have amounts to make full Distributions on the relevant Classes of Trust Securities in accordance with Sections 4.1(b), (c) and (d) on an applicable Distribution Date only if the Depositor has not (i) defaulted in paying interest on the Notes or Contract Payments on the Stock Purchase Contracts or (ii) exercised its right to defer payment of interest on the Notes and Contract Payments on the Stock Purchase Contracts and, accordingly, there is no outstanding Deferred Note Interest Amount or Deferred Contract Payment Amount. Deferred Note Interest Amounts and Deferred Contract Payment Amounts will be paid to Holders of the relevant Classes of Trust Securities on a pro rata basis on the applicable Distribution Dates on which such amounts are received by the Issuer Trust (or as soon thereafter as the Property Trustee determines to be practicable).
     (f) In the event the Property Trustee or the Paying Agent receives any other cash or non-cash payments or distributions with respect to Corresponding Assets for any Class of Trust Preferred Securities (including promissory notes of the Depositor delivered pursuant to (i) Section 2.7(c) of the Stock Purchase Contract Agreement if there are any Deferred Contract Payment Amounts outstanding on the Stock Purchase Date or (ii) Section 2.5(c) of the Indenture Supplement if there are any Deferred Note Interest Amounts outstanding on the Stock Purchase Date), the Property Trustee shall distribute or cause to be distributed through the Paying Agent such cash amounts to the Holders of the related Classes of Trust Preferred Securities on a pro rata basis promptly after receipt and may, in its discretion, distribute non-cash amounts on a pro rata basis (or on a basis that is as close as possible to a pro rata basis as it determines to be reasonably practicable).
     (g) Distributions in cash on the Trust Securities of a Class with respect to an applicable Distribution Date shall be payable to the Holders thereof as they appear on the Securities Register for the Trust Securities at the close of business on the relevant record date for such Distribution Date, which shall be the last day of the month immediately preceding the month in which the relevant Distribution Date falls. Distributions payable on any Trust Securities of a Class that are not punctually paid on an applicable Distribution Date will cease to be payable to the Person in whose name such Trust Securities are registered on the relevant record date, and such defaulted Distribution will instead be payable to the Person in whose name such Trust Securities are registered on the special record date or other specified date for determining Holders entitled to such defaulted Distributions.
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     Section 4.2 Redemption.
     (a) On each Preferred Stock Redemption Date, the Issuer Trust will be required to redeem a Like Amount of Normal ITS and Common Securities at the Preferred Stock Redemption Price (it being understood and agreed that, because (i) the Preferred Stock will not become Trust Property until the Stock Purchase Date, and (ii) on the Stock Purchase Date, subject to Section 4.8, each $1,000 Liquidation Amount of Stripped ITS will automatically become $1,000 Liquidation Amount of Normal ITS, without any action by or on behalf of Holders being necessary, no redemption of Normal ITS, Stripped ITS or Common Securities will occur prior to the Stock Purchase Date).
     (b) On each Note Redemption Date, the Issuer Trust will be required to redeem a Like Amount of Capital ITS at the Note Redemption Price (it being understood and agreed that, because (i) the Notes by their terms are not redeemable prior to April 15, 2015, (ii) the Issuer Trust is required to redeem the Capital ITS in kind after the Stock Purchase Date pursuant to Section 4.2(c) if there is a Successful Remarketing, and (iii) the Depositor has the right to cause the Issuer Trust to redeem the Capital ITS in kind after the Stock Purchase Date pursuant to Section 4.2 if there is a Failed Remarketing or if the Stock Purchase Contracts terminate, a redemption of Capital ITS other than in kind pursuant to such Section 4.2(c) will only occur after April 15, 2015 and only if there is a Failed Remarketing and the Depositor does not exercise its right to cause the Trust to redeem the Capital ITS in kind).
     (c) If a Successful Remarketing occurs, then promptly after the Remarketing Settlement Date the Issuer Trust shall redeem the Capital ITS, in whole but not in part, in kind by exchanging for each Capital ITS a Like Amount of Notes. If a Failed Remarketing occurs but on the Stock Purchase Date there is no Deferred Note Interest Amount outstanding, then promptly after the Stock Purchase Date the Issuer Trust shall redeem the Capital ITS, in whole but not in part, in kind by exchanging for each Capital ITS a Like Amount of Notes. If a Failed Remarketing occurs and there is a Deferred Note Interest Amount outstanding on the Stock Purchase Date, or if the Stock Purchase Contracts terminate in accordance with the terms of the Stock Purchase Contract Agreement prior to a Stock Purchase Date occurring, then the Depositor may instruct the Issuer Trust at any time thereafter when no Deferred Note Interest Amount is outstanding to redeem the Capital ITS, in whole but not in part, in kind by exchanging for each Capital ITS a Like Amount of Notes. Any such redemption will be effected by Book-Entry Transfer of Notes in global form if the Notes then settle and clear through the Clearing Agency, and if the Notes do not then settle and clear through the Clearing Agency by delivery of definitive certificates evidencing the Notes to the Holders of Capital ITS.
     (d) Notice of redemption shall be given by the Property Trustee by first-class mail, postage prepaid, mailed not less than 30 (or not less than 20 in the case of a redemption in kind pursuant to Section 4.2(c) after a Successful Remarketing) nor more than 60 days prior to the Redemption Date to each Holder of Trust Securities to be redeemed, at such Holder’s address appearing in the Security Register. All notices of redemption shall state:
     (i) the Redemption Date;
     (ii) unless the redemption is a redemption of Capital ITS in kind pursuant to Section 4.2(c), the Redemption Price or if the Redemption Price cannot be calculated prior to the time the notice is required to be sent, the estimate of the Redemption Price together with a statement that it is an estimate and that the actual Redemption Price will be calculated on the third Business Day prior to the Redemption Date (and if an estimate is
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provided, a further notice shall be sent of the actual Redemption Price on the date that such Redemption Price is calculated);
     (iii) the CUSIP number or CUSIP numbers of the Trust Preferred Securities affected;
     (iv) if less than all the Outstanding Trust Securities are to be redeemed, the identification and the aggregate Liquidation Amount of the particular Trust Securities of the relevant Class to be redeemed;
     (v) that on the Redemption Date the Redemption Price will become due and payable upon each such Trust Security to be redeemed and that Distributions thereon will cease to accumulate on and after said date, except as provided in Section 4.2(e)(ii) below; and
     (vi) if the Trust Preferred Securities Certificates are not Book-Entry Trust Preferred Securities Certificates on the Redemption Date, the place or places where the Trust Preferred Securities Certificates are to be surrendered for the payment of the Redemption Price.
     (e) In the case of a redemption of Normal ITS and Common Securities pursuant to Section 4.2(a) or Capital ITS pursuant to Section 4.2(b), in each case for payment of a cash Redemption Price:
     (i) The Trust Securities redeemed on each Redemption Date shall be redeemed at the Redemption Price with the proceeds from the contemporaneous redemption of a Like Amount of Preferred Stock or Notes, as applicable. Redemptions of the Trust Securities shall be made and the Redemption Price shall be payable on each Redemption Date only to the extent that the Issuer Trust has funds then on hand and available in the Payment Account from the Depositor’s redemption of Preferred Stock or Notes, as applicable, for the payment of such Redemption Price.
     (ii) If the Property Trustee gives a notice of redemption in respect of any Trust Preferred Securities, then, by 12:00 noon, New York City time, on the Redemption Date, subject to Section 4.2(c), the Property Trustee will, with respect to Book-Entry Trust Preferred Securities, irrevocably deposit with the Clearing Agency for such Book-Entry Trust Preferred Securities, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give such Clearing Agency irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities. With respect to Trust Preferred Securities that are not Book-Entry Trust Preferred Securities, the Property Trustee, subject to Section 4.2(e)(i), will irrevocably deposit with the Paying Agent, to the extent available therefor, funds sufficient to pay the applicable Redemption Price and will give the Paying Agent irrevocable instructions and authority to pay the Redemption Price to the Holders of the Trust Preferred Securities upon surrender of their Trust Preferred Securities Certificates. Notwithstanding the foregoing, Distributions payable on or prior to the Redemption Date for any Trust Securities called for redemption shall be payable to the Holders of such Trust Securities as they appear on the Securities Register for the Trust Securities on the relevant record dates for the related Distribution Dates. If notice of redemption shall have been given and funds deposited as required, then upon the date of such deposit, all rights of Holders holding Trust Securities so called for redemption will cease, except the right of such Holders to receive the
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Redemption Price and any Distribution payable in respect of the Trust Securities on or prior to the Redemption Date, but without interest, and such Trust Securities will cease to be outstanding. In the event that payment of the Redemption Price in respect of any Trust Securities called for redemption is improperly withheld or refused and not paid either by the Issuer Trust or by the Depositor pursuant to the Guarantee Agreement, Distributions on such Trust Securities will continue to accumulate, as set forth in Section 4.1, from the Redemption Date originally established by the Issuer Trust for such Trust Securities to the date such Redemption Price is actually paid, in which case the actual payment date will be the date fixed for redemption for purposes of calculating the Redemption Price.
     (iii) Subject to Section 4.3(a), if less than all the Outstanding Normal ITS and Common Securities are to be redeemed on a Redemption Date, then the aggregate Liquidation Amount of Normal ITS and Common Securities to be redeemed shall be allocated pro rata to the Common Securities and the Normal ITS being redeemed based upon the relative Liquidation Amounts of such classes. The particular Normal ITS to be redeemed shall be selected on a pro rata basis based upon their respective Liquidation Amounts not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Normal ITS not previously called for redemption by any method the Property Trustee deems fair and appropriate, provided that so long as the Normal ITS are in book-entry form, such selection shall be made in accordance with the customary procedures for the Clearing Agency for the Normal ITS. The Property Trustee shall promptly notify the Securities Registrar in writing of the Normal ITS selected for redemption and, in the case of any Normal ITS selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Normal ITS shall relate, in the case of any Normal ITS redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Normal ITS that has been or is to be redeemed.
     (iv) If less than all the Outstanding Capital ITS are to be redeemed on a Redemption Date, then the particular Capital ITS to be redeemed shall be selected on a pro rata basis based upon their respective Liquidation Amounts not more than 60 days prior to the Redemption Date by the Property Trustee from the Outstanding Capital ITS not previously called for redemption by any method the Property Trustee deems fair and appropriate, provided that so long as the Capital ITS are in book-entry form, such selection shall be made in accordance with the customary procedures for the Clearing Agency for the Capital ITS. The Property Trustee shall promptly notify the Securities Registrar in writing of the Capital ITS selected for redemption and, in the case of any Capital ITS selected for partial redemption, the Liquidation Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Capital ITS shall relate, in the case of any Capital ITS redeemed or to be redeemed only in part, to the portion of the aggregate Liquidation Amount of Capital ITS that has been or is to be redeemed.
     Section 4.3 Subordination of Common Securities.
     (a) If on any Distribution Date the Paying Agent lacks funds available from payments of interest, dividends or Contract Payments (as applicable) to make full Distributions then due on all of the outstanding Trust Securities in accordance with Section 4.1 (other than because of the Depositor’s proper exercise of its right to (i) defer payment of Contract Payments, resulting in
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Deferred Contract Payment Amounts, or (ii) defer payment of interest on the Notes, resulting in Deferred Note Interest Amounts), then:
     (i) if the deficiency in funds results from the Depositor’s failure to make a full payment of interest on the Notes on an interest payment date for the Notes, then the available funds from the Depositor’s payment of interest on the Notes shall be applied first to make the Distributions then due on the Normal ITS and the Capital ITS on a pro rata basis on such Distribution Date up to the amount of such Distributions corresponding to interest payments on the Notes (or, if less, the amount of the corresponding Distributions that would have been made on the Normal ITS and Capital ITS had the Depositor made a full payment of interest on the Notes) before any such amount is applied to make a Distribution on Common Securities on such Distribution Date;
     (ii) if the deficiency in funds results from the Depositor’s failure to make a full payment of Contract Payments on the Stock Purchase Contracts on a payment date for Contract Payments, then the available funds from the Depositor’s payment of Contract Payments shall be applied first to make Distributions then due on the Normal ITS and the Stripped ITS on a pro rata basis on such Distribution Date up to the amount of such Distributions corresponding to the Contract Payments on the Stock Purchase Contracts (or, if less, the amount of the corresponding Distributions that would have been made on the Normal ITS and the Stripped ITS had the Depositor made a full payment of Contract Payments on the Stock Purchase Contracts) before any such amount is applied to make a Distribution on Common Securities on such Distribution Date; and
     (iii) if the deficiency in funds results from the Depositor’s failure to pay a full dividend on shares of Preferred Stock on a dividend payment date for the Preferred Stock, then the available funds from the Depositor’s payment of dividends on the Preferred Stock shall be applied first to make Distributions then due on the Normal ITS on a pro rata basis on such Distribution Date up to the amount of such Distributions corresponding to dividends on the Preferred Stock (or, if less, the amount of the corresponding Distributions that would have been made on the Normal ITS and the Stripped ITS, if any, had the Depositor paid a full dividend on the Preferred Stock) before any such amount is applied to make a Distribution on Common Securities on such Distribution Date.
     (b) If on any Redemption Date for a redemption pursuant to Section 4.2(a) the Paying Agent lacks funds available from the Depositor’s redemption of shares of Preferred Stock to pay the full Redemption Price then due on all of the outstanding Trust Securities to be redeemed in accordance with Section 4.2, then (i) the available funds shall be applied first to pay the Redemption Price on the Trust Preferred Securities to be redeemed on such Redemption Date and (ii) Common Securities shall be redeemed only to the extent funds are available for such purpose after the payment of the full Redemption Price on the Trust Preferred Securities to be redeemed, as aforesaid.
     (c) If an Early Dissolution Event occurs, no Liquidation Distributions shall be made on the Common Securities until full Liquidation Distributions have been made on each Class of Trust Preferred Securities in accordance with Section 9.4(d).
     (d) In the case of the occurrence of any Event of Default resulting from any Note Event of Default or Preferred Stock Default, the Holders of the Common Securities shall have no right to act with respect to any such Event of Default under this Trust Agreement until the effect of all such Events of Default with respect to the Trust Preferred Securities have been cured, waived or
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otherwise eliminated. Until all such Events of Default under this Trust Agreement with respect to the Trust Preferred Securities have been so cured, waived or otherwise eliminated, the Property Trustee shall act solely on behalf of the Holders of the Trust Preferred Securities and not on behalf of the Holders of the Common Securities, and only the Holders of the Trust Preferred Securities will have the right to direct the Property Trustee to act on their behalf.
     Section 4.4 Payment Procedures.
     Payments of cash Distributions (including any Additional Amounts) in respect of the Trust Preferred Securities shall, subject to the next succeeding sentence, be made by check mailed to the address of the Person entitled thereto as such address shall appear on the Securities Register or, if the Trust Preferred Securities are held by a Clearing Agency, such Distributions shall be made to the Clearing Agency by wire transfer of immediately available funds. A Holder of $1,000,000 or more in aggregate Liquidation Amount of Trust Preferred Securities may receive payments of cash Distributions (including any Additional Amounts) by wire transfer of immediately available funds upon written request to the Property Trustee not later than the 15th calendar day, whether or not a Business Day, before the relevant Distribution Date. Payments in respect of the Common Securities shall be made in such manner as shall be mutually agreed between the Property Trustee, the Paying Agent and the Holders of the Common Securities.
     Section 4.5 Tax Returns and Reports.
     The Administrative Trustees shall prepare (or cause to be prepared), at the Depositor’s expense, and file all U.S. federal, state and local tax and information returns and reports required to be filed by or in respect of the Issuer Trust. In this regard, the Administrative Trustees shall (a) prepare and file (or cause to be prepared and filed) all Internal Revenue Service forms required to be filed in respect of the Issuer Trust in each taxable year of the Issuer Trust, and (b) prepare and furnish (or cause to be prepared and furnished) to each Holder all Internal Revenue Service forms required to be provided by the Issuer Trust. The Administrative Trustees shall provide the Depositor and the Property Trustee with a copy of all such returns and reports promptly after such filing or furnishing. The Issuer Trustees shall comply with U.S. federal withholding and backup withholding tax laws and information reporting requirements with respect to any payments to Holders under the Trust Securities.
     Section 4.6 Payment of Expenses of the Issuer Trust.
     The Depositor shall pay to the Issuer Trust, and reimburse the Issuer Trust for, the full amount of any costs, expenses or liabilities of the Issuer Trust (other than obligations of the Issuer Trust to pay the Holders of any Trust Preferred Securities or other similar interests in the Issuer Trust the amounts due such Holders pursuant to the terms of the Trust Preferred Securities or such other similar interests, as the case may be), including, without limitation, any taxes, duties or other governmental charges of whatever nature (other than withholding taxes) imposed on the Issuer Trust by the United States or any other taxing authority. Such payment obligation includes any such costs, expenses or liabilities of the Issuer Trust that are required by applicable law to be satisfied in connection with a dissolution of the Issuer Trust.
     Section 4.7 Payments under Indenture or Pursuant to Direct Actions.
     Any amount payable hereunder to any Holder of Trust Preferred Securities (or any Owner with respect thereto) shall be reduced by the amount of any corresponding payment such Holder (or
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Owner) has directly received pursuant to Section 5.8 of the Base Indenture, Section 3.1 of the Stock Purchase Contract Agreement or Section 5.16 of this Trust Agreement.
     Section 4.8 Combination of Stripped ITS and Normal ITS after Stock Purchase Date.
     If either (x) there has been a Successful Remarketing or (y) there has been a Failed Remarketing but on the Stock Purchase Date there is no Deferred Note Interest Amount outstanding (but in the case of each of clause (x) and (y) only if the Stock Purchase Contract Agreement is fully performed on the Stock Purchase Date), at the Securities Registrar’s opening of business on the Business Day next succeeding the Stock Purchase Date each Stripped ITS with its $1,000 Liquidation Amount shall automatically be and become a Normal ITS with a $1,000 Liquidation Amount, and each Stripped ITS Certificate (whether or not a Book-Entry Trust Preferred Securities Certificate) shall be deemed to represent a number of Normal ITS equal to the number of Stripped ITS represented by such Stripped ITS Certificate immediately prior to the Securities Registrar’s opening of business on such date. If there has been a Failed Remarketing and on the Stock Purchase Date there is a Deferred Note Interest Amount outstanding, then Stripped ITS will continue to remain outstanding after the Stock Purchase Date until the first date on which no Deferred Note Interest Amount is outstanding (including because any notes delivered pursuant to Section 2.5(c) of the Indenture Supplement have been fully paid) and, on the Business Day after all Deferred Note Interest Amounts have been fully paid, each Stripped ITS with its $1,000 Liquidation Amount shall automatically be and become a Normal ITS with a $1,000 Liquidation Amount, and each Stripped ITS Certificate (whether or not a Book-Entry Trust Preferred Securities Certificate) shall be deemed to represent a number of Normal ITS equal to the number of Stripped ITS represented by such Stripped ITS Certificate immediately prior to the Securities Registrar’s opening of business on such date. On or after such date determined pursuant to either of the two preceding sentences, (a) upon surrender by a Holder of a Stripped ITS Certificate to the Securities Registrar, an Administrative Trustee shall execute and deliver to the Securities Registrar (who shall then deliver to such Holder) a Normal ITS Certificate representing the appropriate number of Normal ITS, and the Securities Registrar shall enter such Holder as appropriate in the Securities Register for the Normal ITS, and (b) as to Normal ITS and Stripped ITS represented by Book-Entry Preferred Securities, the Depositor, the Administrative Trustees, the Property Trustee, the Securities Registrar and the Paying Agent shall cooperate in an effort to cause the Stripped ITS to become Normal ITS in accordance with the rules and procedures of the applicable Clearing Agency (including, in the case of DTC if it is the Clearing Agency, adjustment if necessary or appropriate through DTC’s Deposit/Withdrawal at Custodian DWAC system).
ARTICLE V
Trust Securities Certificates
     Section 5.1 Initial Ownership.
     Upon the formation of the Issuer Trust and the contribution by the Depositor pursuant to Section 2.3 and until the issuance of the Trust Securities, and at any time during which no Trust Securities are outstanding, the Depositor shall be the sole beneficial owner of the Issuer Trust.
     Section 5.2 The Trust Securities Certificates.
     The Trust Preferred Securities Certificates shall be issued in minimum denominations of one Trust Preferred Security and integral multiples thereof (corresponding to $1,000 Liquidation Amount and integral multiples of $1,000 in excess thereof), and the Common Securities
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Certificates shall be issued in minimum denominations of one Common Security and integral multiples thereof (corresponding to $1,000 Liquidation Amount and integral multiples thereof). Trust Preferred Securities Certificates and Common Securities Certificates shall not be issued in denominations representing fractions of a Trust Preferred Security or Common Security, as applicable. The Trust Securities Certificates shall be executed on behalf of the Issuer Trust by manual signature of at least one Administrative Trustee. Trust Securities Certificates bearing the manual signatures of individuals who were, at the time when such signatures shall have been affixed, Administrative Trustees shall be validly issued and entitled to the benefits of this Trust Agreement, notwithstanding that such individuals or any of them shall have ceased to be Administrative Trustees prior to the delivery of such Trust Securities Certificates or did not hold such offices at the date of delivery of such Trust Securities Certificates. A transferee of a Trust Securities Certificate shall become a Holder, and shall be entitled to the rights and subject to the obligations of a Holder hereunder, upon due registration of such Trust Securities Certificate in such transferee’s name pursuant to Section 5.4, 5.11 or 5.13.
     Section 5.3 Execution and Delivery of Trust Securities Certificates.
     At the Time of Delivery, an Administrative Trustees shall cause Trust Securities Certificates representing the number of Trust Securities of the applicable Class provided in Sections 2.4 and 2.5 to be executed on behalf of the Issuer Trust and delivered to or upon the written order of the Depositor, such written order executed by one Authorized Officer thereof, without further corporate action by the Depositor, in authorized denominations.
     Section 5.4 Registration of Transfer and Exchange of Trust Preferred Securities Certificates.
     The Administrative Trustees shall keep or cause to be kept, at the office or agency maintained pursuant to Section 5.8, a register or registers for the purpose of registering Trust Securities Certificates and transfers and exchanges of Trust Preferred Securities Certificates (the “Securities Register”) in which the Securities Registrar, subject to such reasonable regulations as it may prescribe, shall provide for the registration of Trust Preferred Securities Certificates and Common Securities Certificates (subject to Section 5.10 in the case of the Common Securities Certificates) and registration of transfers and exchanges of Trust Preferred Securities Certificates as herein provided. The provisions of Sections 8.1 (other than (c), (d), (e)(i) and (e)(iii) (e)(vii) thereof), 8.3 (other than (g) and (j) thereof) and 8.6 shall apply to the Securities Registrar in the same manner that by their terms they apply to the Property Trustee, mutatis mutandis, as modified by the terms of the letter agreement, dated March 17, 2006 (the “Agent Agreement”), by and among the Depositor, the Administrative Trustees, the Securities Registrar and the Paying Agent, which is hereby incorporated herein by reference and made a part hereof, and subject to the rights, privileges and immunities of the Securities Registrar under the Collateral Agreement. The Administrative Trustees shall take such action as shall be necessary to ensure that at all times there is a Securities Registrar and that, through the Stock Purchase Date, the same commercial bank is both Securities Registrar and Collateral Agent. By executing this Trust Agreement, the Administrative Trustees appoint U.S. Bank National Association, as the initial Securities Registrar. Subject to the second preceding sentence, the Administrative Trustees may dismiss the Securities Registrar and appoint a commercial bank or trust company to act as successor Securities Registrar. Any Person acting as Securities Registrar shall be permitted to resign as Securities Registrar upon 30 days’ written notice to the Administrative Trustees and the Property Trustee.
     Upon surrender for registration of transfer of any Trust Preferred Securities Certificate at the office or agency maintained pursuant to Section 5.8, the Administrative Trustees or any one of
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them shall execute on behalf of the Issuer Trust and deliver, in the name of the designated transferee or transferees, one or more new Trust Preferred Securities Certificates in authorized denominations of a like aggregate Liquidation Amount dated the date of execution by such Administrative Trustee or Trustees. At the option of a Holder, Trust Preferred Securities Certificates may be exchanged for other Trust Preferred Securities Certificates in authorized denominations of the same class and of a like aggregate Liquidation Amount upon surrender of the Trust Preferred Securities Certificates to be exchanged at the office or agency maintained pursuant to Section 5.8. Neither the Trust nor the Securities Registrar shall be required, pursuant to the provisions of this Section 5.4, (a) to register the transfer of or exchange any Trust Preferred Security during a period beginning at the opening of business 15 days before the day of selection for redemption of Trust Preferred Securities and ending at the close of business on the day of mailing of notice of redemption or (b) to transfer or exchange any Trust Preferred Security so selected for redemption in whole or in part, except, in the case of any Trust Preferred Security to be redeemed in part, any portion thereof not to be redeemed.
     Every Trust Preferred Securities Certificate presented or surrendered for registration of transfer or exchange shall be accompanied by a written instrument of transfer in form satisfactory to an Administrative Trustee and the Securities Registrar duly executed by the Holder or his attorney duly authorized in writing. Each Trust Preferred Securities Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently disposed of by an Administrative Trustee or the Securities Registrar in accordance with such Person’s customary practice.
     No service charge shall be made for any registration of transfer or exchange of Trust Preferred Securities Certificates, but the Securities Registrar may require payment of a sum sufficient to cover any tax or governmental charge that may be imposed in connection with any transfer or exchange of Trust Preferred Securities Certificates.
     Section 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates.
     If (a) any mutilated Trust Securities Certificate shall be surrendered to the Securities Registrar, or if the Securities Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Trust Securities Certificate, and (b) there shall be delivered to the Securities Registrar and the Administrative Trustees such security or indemnity as may be required by them to save each of them harmless, then in the absence of notice that such Trust Securities Certificate shall have been acquired by a protected purchaser, the Administrative Trustees, or any one of them, on behalf of the Issuer Trust shall execute and make available for delivery, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust Securities Certificate of like class, tenor and denomination. In connection with the issuance of any new Trust Securities Certificate under this Section 5.5, the Administrative Trustees or the Securities Registrar may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith. Any duplicate Trust Securities Certificate issued pursuant to this Section shall constitute conclusive evidence of an undivided beneficial interest in the assets of the Issuer Trust corresponding to that evidenced by the lost, stolen or destroyed Trust Securities Certificate, as if originally issued, whether or not the lost, stolen or destroyed Trust Securities Certificate shall be found at any time.
     Section 5.6 Persons Deemed Holders.
     The Issuer Trustees and the Securities Registrar shall each treat the Person in whose name any Trust Securities Certificate shall be registered in the Securities Register as the owner of such
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Trust Securities Certificate for the purpose of receiving Distributions and for all other purposes whatsoever, and none of the Issuer Trustees, the Administrative Trustees and the Securities Registrar shall be bound by any notice to the contrary.
     Section 5.7 List of Holders’ Names and Addresses.
     Each of the Depositor and any one of the Administrative Trustees will furnish or cause to be furnished to the Property Trustee:
     (i) monthly, quarterly or semi-annually, as the case may be, not more than 15 days after each regular record date in each year, a list, in such form as the Property Trustee may reasonably require, of the names and addresses of the Holders of Trust Securities as of such regular record date, and
     (ii) at such other times as the Property Trustee may request in writing, within 30 days after the receipt by the Depositor and the Administrative Trustees of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the Property Trustee at any time that is acting as Securities Registrar.
     The Property Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Property Trustee as provided in this Section 5.7 and the names and addresses of Holders received by the Property Trustee at any time that is acting as Securities Registrar. The Property Trustee may destroy any list furnished to it as provided in Section 5.7 upon receipt of a new list so furnished.
     The rights of Holders to communicate with other Holders with respect to their rights under this Trust Agreement or under the Trust Securities, and the corresponding rights and privileges of the Property Trustee, shall be as provided in the Trust Indenture Act.
     Each Holder and each Owner shall be deemed to have agreed not to hold the Depositor, the Property Trustee, the Delaware Trustee, the Administrative Trustees or the Securities Registrar accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.
     Section 5.8 Maintenance of Office Agency.
     The Administrative Trustees shall designate an office or offices or agency or agencies where Trust Preferred Securities Certificates may be surrendered for registration of transfer or exchange and for payment, and where notices and demands to or upon the Issuer Trustees in respect of this Trust Agreement and the Trust Securities Certificates may be served. The Administrative Trustees initially designate c/o U.S. Bank National Association, 100 Wall Street, 16th Floor, New York, New York 10005 Attention: Corporate Trust Services, as their office and agency for such purposes of surrendering for registration of transfer or exchange and for payment and designate c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402, Attention: Treasury Department, as their office and agency for the purposes of serving such demands and notices. An Administrative Trustee shall give prompt written notice to the Depositor, the Property Trustee<s> and to the Holders of any change in the location of the Securities Register or any such office or agency.
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     Section 5.9 Appointment of Paying Agent.
     The Paying Agent shall make Distributions to Holders from the Payment Account and shall report the amounts of such Distributions to the Property Trustee and the Administrative Trustees. Any Paying Agent shall have the revocable power to withdraw funds from the Payment Account solely for the purpose of making the Distributions referred to above. The Administrative Trustees may revoke such power and remove the Paying Agent in their sole discretion. The Paying Agent shall initially be U.S. Bank National Association. Any Person acting as Paying Agent shall be permitted to resign as Paying Agent upon 30 days’ written notice to the Administrative Trustees and the Property Trustee. If U.S. Bank National Association shall no longer be the Paying Agent or a successor Paying Agent shall resign or its authority to act be revoked, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company) that is reasonably acceptable to the Property Trustee and the Depositor to act as Paying Agent. Such successor Paying Agent or any additional Paying Agent shall execute and deliver to the Issuer Trustees an instrument in which such successor Paying Agent or additional Paying Agent shall agree with the Issuer Trustees that as Paying Agent, such successor Paying Agent or additional Paying Agent will hold all sums, if any, held by it for payment to the Holders in trust for the benefit of the Holders entitled thereto until such sums shall be paid to such Holders. The Paying Agent shall return all unclaimed funds to the Property Trustee and upon removal of a Paying Agent such Paying Agent shall also return all funds in its possession to the Property Trustee. The provisions of Sections 8.1 (other than (c), (d), (e)(i) and (e)(iii), thereof), 8.3 (other than (g) and (j) thereof) and 8.6 shall apply also to the Paying Agent for so long as it shall act as Paying Agent and, to the extent applicable, to any other paying agent appointed hereunder, in the same manner that by their terms they apply to the Property Trustee, mutatis mutandis, as modified by the terms of the Agent Agreement. Any reference in this Agreement to the Paying Agent shall include any co-paying agent unless the context requires otherwise.
     Section 5.10 Ownership of Common Securities by Depositor; Common Securities Certificate.
     (a) At the Time of Delivery, the Depositor shall acquire beneficial and record ownership of the Common Securities. To the fullest extent permitted by law, other than a transfer in connection with a consolidation or merger of the Depositor into another Person, or any conveyance, transfer or lease by the Depositor of its properties and assets substantially as an entirety to any Person pursuant to Section 8.1 of the Base Indenture, any attempted transfer of the Common Securities other than to a direct or indirect subsidiary of the Depositor shall be void. The Administrative Trustees shall cause each Common Securities Certificate issued to the Depositor to contain a legend consistent with this Section 5.10.
     (b) A single Common Securities Certificate representing the Common Securities shall be issued to the Depositor in the form of a definitive Common Securities Certificate.
     Section 5.11 Book-Entry Trust Preferred Securities Certificates.
     (a) Except where Definitive Trust Preferred Securities Certificates have been issued to Owners pursuant to Section 5.15:
     (i) the provisions of this Section 5.11(a) shall apply and be in full force and effect;
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     (ii) the Securities Registrar, the Paying Agent and the Issuer Trustees shall be entitled to deal with the Clearing Agency, or its nominee, for all purposes of this Trust Agreement relating to the Book-Entry Trust Preferred Securities Certificates (including the payment of the Liquidation Amount of and Distributions on the Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates and the giving of instructions or directions to Owners of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates) as the sole Holder of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates and shall have no obligations to the Owners thereof, and neither any Clearing Agency Participants nor any other Persons on whose behalf Clearing Agency Participants may act shall have any rights under this Trust Agreement with respect to any Book-Entry Trust Preferred Securities Certificates registered in the name of the Clearing Agency or any nominee thereof or otherwise;
     (iii) to the extent that the provisions of this Section 5.11 conflict with any other provisions of this Trust Agreement, the provisions of this Section 5.11 shall control; and
     (iv) the rights of the Owners of the Book-Entry Trust Preferred Securities Certificates shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreements between such Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Certificate Depository Agreement, unless and until Definitive Trust Preferred Securities Certificates are issued pursuant to Section 5.15, the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments on the Trust Preferred Securities to such Clearing Agency Participants. Notwithstanding the foregoing, (x) the Holder of a Book-Entry Trust Preferred Securities Certificate may grant proxies and otherwise authorize any Person, including the Clearing Agency Participants and other Persons that are Owners, to take any action that a Holder of Trust Preferred Securities of the relevant Class is entitled to take under this Trust Agreement or the Trust Preferred Securities of the relevant Class, and (y) nothing herein shall prevent the Securities Registrar or the Issuer Trustees from giving effect to any written certification, proxy or other authorization furnished by the Clearing Agency or shall impair, as between the Clearing Agency and the Clearing Agency Participants, the operation of customary practices governing the exercise of the rights of an Owner of any Trust Preferred Security.
     (b) Any Book-Entry Trust Preferred Securities Certificate shall represent such number of the Outstanding Trust Preferred Securities of the applicable Class as shall be specified therein and may provide that it shall represent the aggregate number of Outstanding Trust Preferred Securities of the applicable Class from time to time endorsed thereon and that the aggregate number of Outstanding Trust Preferred Securities of the applicable Class represented thereby may from time to time be reduced or increased, as appropriate, to reflect transfers, redemptions or exchanges (including the Exchanges pursuant to Section 5.13). Any endorsement of a Book-Entry Trust Preferred Securities Certificate to reflect the number, or any increase or decrease in the number, of Outstanding Trust Preferred Securities of the applicable Class represented thereby shall be made by the Securities Registrar (i) in such a manner and upon instructions given by such Person or Persons as shall be specified in such Trust Preferred Securities of the applicable Class or in a Depositor order to be delivered to the Securities Registrar pursuant to Section 5.3 or (ii) otherwise in accordance with written instructions or such other written form or instructions as is customary for the Clearing Agency for such Trust Preferred Securities, from such Clearing Agency or its nominee on behalf of any Person having a beneficial interest in such Book-Entry Trust Preferred Securities Certificate. Subject to the provisions of Section 5.4, the Securities Registrar shall deliver and
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redeliver any Book-Entry Trust Preferred Securities Certificate in the manner and upon instructions given by the Person or Persons specified in such Book-Entry Trust Preferred Securities Certificate or in the applicable Depositor order (and an Administrative Trustee shall execute such Book-Entry Trust Preferred Securities Certificate as shall be necessary in order to give effect to the foregoing).
     (c) Any Book-Entry Trust Preferred Securities Certificate may be deposited with the Clearing Agency or its nominee, or may remain in the custody of the Certificate Custodian.
     (d) Notwithstanding Section 5.4, transfers of a Book-Entry Trust Preferred Securities Certificate shall be limited to transfers in whole, but not in part, to the Clearing Agency, its successors or their respective nominees. Interests of Owners in a Book-Entry Trust Preferred Securities Certificate may be transferred in accordance with the rules and procedures of the Clearing Agency. Definitive Trust Preferred Securities Certificates shall be transferred to Owners in exchange for their beneficial interests in a Book-Entry Trust Preferred Securities Certificate if, and only if, either (1) the Clearing Agency notifies the Depositor and the Securities Registrar that it is unwilling or unable to continue as Clearing Agency for the Book-Entry Trust Preferred Securities or if at any time the Clearing Agency ceases to be a Clearing Agency registered under the Exchange Act and, in either case, a successor Clearing Agency is not appointed by the Depositor within 90 days of such notice, (2) an Event of Default has occurred and is continuing and the Securities Registrar has received a request from the Clearing Agency to issue Definitive Trust Preferred Securities Certificates of each Class in lieu of all or a portion of the Book-Entry Trust Preferred Securities (in which case an Administrative Trustee shall execute and deliver Definitive Trust Preferred Securities Certificates within 30 days of such request), or (3) the Depositor determines not to have the Trust Preferred Securities represented by the Book-Entry Trust Preferred Securities Certificates.
     (e) In connection with any transfer of a portion of the beneficial interests in a Book-Entry Trust Preferred Securities Certificate to Owners pursuant to this Section 5.11, the Securities Registrar shall reflect on its books and records the date and a decrease in the number of Book-Entry Trust Preferred Securities of the applicable Class in an amount equal to the number of such Trust Preferred Securities of the applicable Class to be transferred, and an Administrative Trustee shall execute and deliver one or more Definitive Trust Preferred Securities Certificates of the same Class representing the appropriate number of Trust Preferred Securities of such Class.
     (f) In connection with the transfer of all the beneficial interests in a Book-Entry Trust Preferred Securities Certificate to Owners pursuant to this Section 5.11, the Book-Entry Trust Preferred Securities Certificates shall be deemed to be surrendered to the Securities Registrar for cancellation, and an Administrative Trustee shall execute and deliver to each Owner identified by the Clearing Agency in exchange for its beneficial interest in the Book-Entry Trust Preferred Securities Certificate being cancelled, a Definitive Trust Preferred Security Certificate representing an equal number of Trust Preferred Securities of the applicable Class.
     (g) None of the Issuer Trustees, the Securities Registrar, the Paying Agent or the Depositor will have any responsibility or liability for any acts or omissions of any Clearing Agency with respect to any Book-Entry Trust Preferred Securities, or any aspect of the records relating to, or payments made on account of, Trust Preferred Securities by the Clearing Agency, or for maintaining, supervising or reviewing any records of the Clearing Agency relating to the Trust Preferred Securities, or for any transactions between or among a Clearing Agency and a Clearing Agency Participant and/or an Owner of a beneficial interest in any Book-Entry Trust Preferred Securities for transfers of beneficial interests in any Book-Entry Trust Preferred Securities. None of the Issuer Trustees, the Securities Registrar, the Paying Agent or the Depositor shall be liable for
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any delay by the Clearing Agency in identifying Owners, and each such Person may conclusively rely on, and shall be protected in relying on, instructions from the Clearing Agency for all purposes (including with respect to the registration and delivery, in the respective amounts, of Definitive Trust Preferred Securities Certificates to be issued).
     Section 5.12 Notices to Clearing Agency.
     To the extent that a notice or other communication to the Holders is required under this Trust Agreement, for so long as Trust Preferred Securities are represented by Book-Entry Trust Preferred Securities Certificates, the Administrative Trustees shall give all such notices and communications specified herein to be given to the Clearing Agency, and shall have no obligations to the Owners.
     Section 5.13 Exchanges.
     (a) This Section 5.13 provides for the procedures pursuant to which Holders:
     (i) of Normal ITS may exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS; and
     (ii) of Stripped ITS and Capital ITS may exchange Stripped ITS and Capital ITS for Normal ITS and Pledged Treasury Securities
(each, an “Exchange”, and the terms “Exchanged”, “Exchanging” and “Exchanges” having correlative meanings). All deposits, deliveries or transfers by a Holder pursuant to this Section 5.13 of Normal ITS, Capital ITS and treasury securities (including Qualifying Treasury Securities) shall be made by Book-Entry Transfer unless the recipient of such deposit, delivery or transfer expressly agrees otherwise in writing.
     (b) Subject to the conditions set forth in this Trust Agreement, during any Exchange Period a Holder of Normal ITS may effect an Exchange of Normal ITS and Qualifying Treasury Securities having a principal amount equal to the Liquidation Amount of such Normal ITS for Stripped ITS and Capital ITS, each having a Liquidation Amount equal to the Liquidation Amount of such Normal ITS, by:
     (i) depositing with the Collateral Agent the treasury security that is the Qualifying Treasury Security on the date of deposit, in the principal amount of $1,000 for each Normal ITS being Exchanged;
     (ii) transferring the Normal ITS being Exchanged to the Securities Registrar; and
     (iii) delivering to the Collateral Agent and the Securities Registrar, together with the deposit of Qualifying Treasury Securities deposited pursuant to clause (i) and the transfer of Normal ITS pursuant to clause (ii), a duly executed and completed “Stripping Notice and Request” in the form printed on the reverse side of the form of Normal ITS Certificate (x) stating that the Holder is depositing the appropriate Qualifying Treasury Securities with the Collateral Agent for deposit in the Collateral Account, (y) stating that the Holder is transferring the related Normal ITS to the Securities Registrar in connection with an Exchange of such Normal ITS and Qualifying Treasury Securities for a Like
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Amount of Stripped ITS and Capital ITS, and (z) requesting the delivery to the Holder of such Stripped ITS and Capital ITS.
     (c) Upon the deposit and transfer pursuant to Section 5.13(b) and receipt of the notice and request referred to in Section 5.13(b)(iii):
     (i) the Collateral Agent will release Pledged Notes of a Like Amount from the Pledge, transfer such Pledged Notes to the Custody Account free and clear of the Depositor’s security interest therein, and confirm to the Property Trustee in writing that such release and transfer has occurred;
     (ii) the Collateral Agent shall continue to hold such Notes in the Custody Account as Custodial Agent for the Issuer Trust in connection with Capital ITS for which such Notes are Corresponding Assets; and
     (iii) the Securities Registrar, pursuant to the procedures provided for in Section 5.11 dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Normal ITS transferred pursuant to Section 5.13(b)(ii) and deliver a Like Amount of Stripped ITS and Capital ITS to the Holder, all by making appropriate notations on the Book-Entry Trust Preferred Securities Certificates of the appropriate Class.
     (d) Subject to the conditions set forth in this Trust Agreement, during any Exchange Period a Holder of Stripped ITS and Capital ITS may effect an Exchange of Stripped ITS and Capital ITS for Normal ITS and Pledged Treasury Securities having a principal amount equal to the Liquidation Amount of each of the Stripped ITS and Capital ITS being Exchanged, by:
     (i) transferring the Stripped ITS and the Capital ITS being Exchanged to the Securities Registrar; and
     (ii) delivering to the Securities Registrar, together with the transfer of Stripped ITS and Capital ITS pursuant to clause (i), and concurrently delivering to the Collateral Agent a duly executed and completed “Recombination Notice and Request” in the form printed on the reverse side of the form of Capital ITS Certificate and Stripped ITS Certificate, (x) stating that the Holder is transferring the related Stripped ITS and Capital ITS to the Securities Registrar in connection with the Exchange of such Stripped ITS and Capital ITS for a Like Amount of each of Normal ITS and Pledged Treasury Securities, (y) requesting the Collateral Agent to release from the Pledge and deliver to the Holder Pledged Treasury Securities in a principal amount equal to the Liquidation Amount of each of the Stripped ITS and Capital ITS being exchanged, and (z) requesting the Securities Registrar to deliver to the Holder Normal ITS of a Like Amount.
     (e) Upon the transfer pursuant to Section 5.13(d) and receipt of the notice and request referred to in Section 5.13(d):
     (i) the Collateral Agent will release Pledged Treasury Securities of a Like Amount from the Pledge and deliver such formerly Pledged Treasury Securities to the Holder free and clear of the Depositor’s security interest therein, and confirm in writing to the Property Trustee and the Administrative Trustees that such release and transfer has occurred;
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     (ii) the Collateral Agent will transfer a Like Amount of Notes from the Custody Account to the Collateral Account, re-subjecting such Notes to the Pledge; and
     (iii) the Securities Registrar, pursuant to the procedures provided for in Section 5.11 dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Stripped ITS and Capital ITS delivered pursuant to Section 5.13(d) and deliver a Like Amount of Normal ITS to the Holder, all by making appropriate notations on the Book-Entry Trust Preferred Securities Certificates of the appropriate Class.
     Section 5.14 Remarketing Elections.
     (a) This Section 5.14 provides for the procedures pursuant to which a Holder:
     (i) of Normal ITS may elect (a “Contingent Exchange Election”) to cause the Pledged Notes that are Corresponding Assets for such Holder’s Normal ITS not to be offered in a Remarketing, with the consequence that such Holder will receive in exchange Stripped ITS and Capital ITS in a Like Amount if the Remarketing is Successful; and
     (ii) of Capital ITS may elect (a “Contingent Disposition Election”) to cause the Notes that are Corresponding Assets for such Holder’s Capital ITS to be offered in the Remarketing, with the consequence that such Holder will receive the cash proceeds, net of the allocable portion of the Remarketing Agent’s fee, of the Remarketing of such Notes.
     (b) Upon the written instruction of the Depositor, the Property Trustee shall give appropriate instructions to the Collateral Agent and the Remarketing Agent in accordance with the Remarketing Agreement to offer for sale in each Remarketing, and if the Remarketing is Successful sell as part of such Remarketing, a principal amount of Notes equal to 100% of the principal amount of Notes included in the Trust Property minus the sum of (i) the Liquidation Amount of Normal ITS as to which a Contingent Exchange Election has been made and (ii) the Liquidation Amount of Capital ITS other than Capital ITS as to which a Contingent Disposition Election has been made.
     (c) All deposits, deliveries or transfers by a Holder pursuant to this Section 5.14 of Normal ITS, Capital ITS and treasury securities (including Qualifying Treasury Securities) shall be made by Book-Entry Transfer unless the recipient of such deposit, delivery or transfer expressly agrees otherwise in writing.
     (d) Subject to the conditions set forth in this Trust Agreement, a Holder of Normal ITS may make a Contingent Exchange Election by:
     (i) during the period that commences with the Collateral Agent’s and the Securities Registrar’s opening of normal business hours on the tenth Business Day immediately preceding a Remarketing Date and ending at 3:00 P.M., New York City time, on the second Business Day immediately preceding such Remarketing Date, transferring the Normal ITS that are the subject of such Contingent Exchange Election to the Securities Registrar, accompanied by a duly executed and completed “Notice of Contingent Exchange Election” in the form printed on the reverse side of the form of Normal ITS Certificate; and
     (ii) by not later than 3:00 P.M., New York City time, on the second Business Day immediately preceding the Remarketing Date, depositing with the Collateral Agent,
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the treasury security that is the Qualifying Treasury Security on the date of deposit, in the amount of $1,000 for each Normal ITS that is subject to the Contingent Exchange Election.
     (e) If a Holder has made an effective Contingent Exchange Election in accordance with the foregoing provisions:
     (i) if the related Remarketing is Successful:
     (x) the Collateral Agent will release Pledged Notes of a Like Amount from the Pledge, transfer such Notes to the Custody Account free and clear of the Depositor’s security interest therein, deposit in the Collateral Account as Pledged Treasury Securities the Qualifying Treasury Securities deposited with the Collateral Agent pursuant to Section 5.14(d)(ii) and confirm to the Property Trustee and the Administrative Trustees in writing that such release of transfers has occurred;
     (y) the Collateral Agent shall continue to hold such Notes in the Custody Account as Custodial Agent for the Issuer Trust in connection with Capital ITS for which such Notes are Corresponding Assets; and
     (z) the Securities Registrar, pursuant to the procedures provided for in Section 5.11 dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Normal ITS transferred pursuant to Section 5.14(d)(i) and deliver a Like Amount of Capital ITS and Stripped ITS to the Holder, all by making appropriate notations on the Book-Entry Trust Preferred Securities Certificates of the appropriate Class; and
     (ii) if the related Remarketing is not Successful:
     (x) promptly after the Remarketing, the Collateral Agent will deliver back to such Holder the Qualifying Treasury Securities delivered by such Holder to the Collateral Agent pursuant to the Section 5.14(d)(ii); and
     (y) the Securities Registrar will disregard the delivery by such Holder of Normal ITS pursuant to Section 5.14(d)(i), with the consequence that such Holder shall be deemed continued to hold such Normal ITS.
     (f) Subject to the conditions set forth in this Trust Agreement, a Holder of Capital ITS may make a Contingent Disposition Election by, during the period that commences with the Securities Registrar’s opening of normal business hours on the tenth Business Day immediately preceding a Remarketing Date and ending at 3:00 P.M., New York City time, on the second Business Day immediately preceding such Remarketing Date, transferring the Capital ITS that are the subject of such Contingent Disposition Election to the Securities Registrar, accompanied by a duly completed “Notice of Contingent Disposition Election” in the form printed on the reverse side of the form of Capital ITS Certificate.
     (g) If a Holder has made an effective Contingent Disposition Election in accordance with the foregoing provisions:
     (i) if the related Remarketing is Successful:
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     (x) the Securities Registrar, pursuant to the procedures provided for in Section 5.11 dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Capital ITS transferred pursuant to Section 5.14(f); and
     (y) on or promptly after the Remarketing Settlement Date, the Collateral Agent will pay to the Property Trustee or its designee, and the Property Trustee through the Paying Agent will pay to such Holder, an amount in cash for each Capital ITS subject to such Contingent Disposition Election equal to the proceeds of sale of $1,000 principal amount of Notes, net of a pro rata portion of the Remarketing Agent’s fee, in the Remarketing; and
     (ii) if the Remarketing is not Successful, the Securities Registrar will disregard the delivery by such Holder of Capital ITS pursuant to Section 5.14(f), with the consequence that such Holder shall continue to hold such Capital ITS.
     Section 5.15 Definitive Trust Preferred Securities Certificates.
     The Trust Preferred Securities Certificates issued at the Time of Delivery shall be issued as Book-Entry Trust Preferred Securities Certificates in accordance with Section 2.4. Additionally, if (a) the Depositor advises the Issuer Trustees in writing that the Clearing Agency (i) has notified the Depositor that it is unwilling or unable to continue as Clearing Agency for such Trust Preferred Securities Certificates and no successor Clearing Agency has been appointed within 90 days of this notice or (ii) has ceased to be a clearing agency registered under the Exchange Act at a time when the Clearing Agency is required to be so registered to act as a depositary and no successor Clearing Agency has been appointed within 90 days after the Depositor has learned that the Clearing Agency has ceased to be so registered, (b) a Note Event of Default or a Preferred Stock Event of Default has occurred and is continuing, (c) the Depositor at its option advises the Issuer Trustees in writing that it elects to terminate the book-entry system through the Clearing Agency, or (d) Owners of Trust Preferred Securities Certificates representing beneficial interests aggregating at least a Majority in Liquidation Amount of the Trust Preferred Securities of all Classes, considered together as a single Class, advise the Administrative Trustees in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interest of the Owners of Trust Preferred Securities Certificates, then the Administrative Trustees shall notify the other Issuer Trustees and the Clearing Agency, and the Clearing Agency, in accordance with its customary rules and procedures, shall notify all Clearing Agency Participants for whom it holds Trust Preferred Securities of the occurrence of any such event and of the availability of the Definitive Trust Preferred Securities Certificates to Owners of such class or classes, as applicable, requesting the same. Upon surrender to the Administrative Trustees of the typewritten Trust Preferred Securities Certificate or Certificates representing the Book-Entry Trust Preferred Securities Certificates by the Clearing Agency, accompanied by registration instructions, the Administrative Trustees, or any one of them, shall execute the Definitive Trust Preferred Securities Certificates in accordance with the instructions of the Clearing Agency. Neither the Securities Registrar nor the Issuer Trustees shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Trust Preferred Securities Certificates, the Issuer Trustees shall recognize the Holders of the Definitive Trust Preferred Securities Certificates as holders of Trust Securities. The Definitive Trust Preferred Securities Certificates shall be typewritten, printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees that meets the requirements of any stock exchange or automated quotation system on which the Trust Preferred
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Securities are then listed or approved for trading, as evidenced by the execution thereof by the Administrative Trustees or any one of them.
     Section 5.16 Rights of Holders; Waivers of Past Defaults.
     (a) The legal title to the Trust Property is vested exclusively in the Property Trustee (in its capacity as such) in accordance with Section 2.9, and the Holders shall not have any right or title therein other than the beneficial interest in the Issuer Trust conferred by their Trust Securities and they shall have no right to call for any partition or division of property, profits or rights of the Issuer Trust except as described below. The Trust Securities shall be personal property giving only the rights specifically set forth therein and in this Trust Agreement. The Trust Preferred Securities shall have no preemptive or similar rights and when issued and delivered to Holders against payment of the purchase price therefor will be fully paid and nonassessable beneficial interests in the Issuer Trust. The Holders of the Trust Securities, in their capacities as such, shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.
     (b) For so long as any Trust Preferred Securities of the Affected Classes remain Outstanding, if, upon a Note Event of Default, the Note Trustee fails or the holders of not less than 25% in principal amount of the outstanding Notes fail to declare the principal of all of the Notes to be immediately due and payable, the Property Trustee or the Holders of at least 25% in Liquidation Amount of the Trust Preferred Securities of the Affected Classes then Outstanding, considered together as a single Class, shall have the right to make such declaration by a notice in writing to the Depositor, the Note Trustee and the Property Trustee, in the case of notice by the Holders of the Trust Preferred Securities of the Affected Classes, or to the Depositor, the Note Trustee and the Holders of the Trust Preferred Securities of the Affected Classes, in the case of notice by the Property Trustee, and upon any such declaration such principal amount of and the accrued interest on all of the Notes shall become immediately due and payable as provided in the Indenture, provided that the payment of principal and interest on such Notes shall remain subordinated to the extent provided in the Indenture.
     At any time after a declaration of acceleration with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained by the Note Trustee as in the Indenture provided, the Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities of the Affected Classes, considered together as a single Class, by written notice to the Property Trustee, the Depositor and the Note Trustee, may rescind and annul such declaration and its consequences if:
     (i) the Depositor has paid or deposited with the Note Trustee a sum sufficient to pay
     (A) all overdue installments of interest on all of the Notes,
     (B) any accrued Additional Interest (as defined in the Indenture) on all of the Notes,
     (C) the principal of (and premium, if any, on) any Notes that have become due otherwise than by such declaration of acceleration and interest and Additional Interest (as defined in the Indenture) thereon at the rate borne by the Notes, and
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     (D) all sums paid or advanced by the Note Trustee under the Indenture and the reasonable compensation, expenses, disbursements and advances of the Note Trustee and the Property Trustee, their agents and counsel; and
     (ii) all Events of Default with respect to the Notes, other than the non payment of the principal of the Notes that has become due solely by such acceleration, have been cured or waived as provided in Section 5.13 of the Base Indenture.
     The Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities of the Affected Classes, considered together as a single Class, may, on behalf of the Holders of all the Trust Preferred Securities of the Affected Classes, waive any past default under the Indenture, except a default in the payment of principal or interest (unless such default has been cured and a sum sufficient to pay all matured installments of interest and principal due otherwise than by acceleration has been deposited with the Note Trustee) or a default in respect of a covenant or provision that under the Indenture cannot be modified or amended without the consent of the holder of each outstanding Note. No such rescission shall affect any subsequent default or impair any right consequent thereon.
     Upon receipt by the Property Trustee of written notice declaring such an acceleration, or rescission and annulment thereof, by Holders of any part of the Trust Preferred Securities of the Affected Classes a record date shall be established for determining Holders of Outstanding Trust Preferred Securities of the Affected Classes entitled to join in such notice, which record date shall be at the close of business on the day the Property Trustee receives such notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders remain Holders after such record date; provided that unless such declaration of acceleration, or rescission and annulment, as the case may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day that is 90 days after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission and annulment thereof, as the case may be, that is identical to a written notice that has been canceled pursuant to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this Section 5.16(b).
     (c) For so long as any Trust Preferred Securities of the Affected Classes remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Indenture, upon a Note Event of Default specified in Section 5.1(1) or 5.1(2) of the Base Indenture, any Holder of Trust Preferred Securities of the Affected Classes shall have the right to institute a proceeding directly against the Depositor, pursuant to Section 5.8 of the Base Indenture, for enforcement of payment to such Holder of any amounts payable in respect of a Like Amount of Notes (a “Direct Action”). Except as set forth in Section 5.16(b) and this Section 5.16(c), the Holders of Trust Preferred Securities of the Affected Classes shall have no right to exercise directly any right or remedy available to the holders of, or in respect of, the Notes.
     (d) For so long as any Trust Preferred Securities of the Affected Classes remain Outstanding, to the fullest extent permitted by law and subject to the terms of this Trust Agreement and the Stock Purchase Contract Agreement, if the Depositor fails to pay when due any Contract Payments under the Stock Purchase Contract Agreement (after giving effect to the Depositor’s deferral right under Section 2.7 of the Stock Purchase Contract Agreement), any Holder of Trust Preferred Securities of the Affected Classes shall have the right to institute a proceeding directly
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against the Depositor, pursuant to Section 3.1 of the Stock Purchase Contract Agreement, for enforcement of payment to such Holder of any amounts payable in respect of a Like Amount of Stock Purchase Contracts (also a “Direct Action”). Except as set forth in this Section 5.16(d), the Holders of Trust Preferred Securities of the Affected Classes shall have no right to exercise directly any right or remedy under the Stock Purchase Contract Agreement available to the Issuer Trust (acting through the Property Trustee) as a party thereto.
     (e) Except as otherwise provided in Sections 5.16(a), (b), (c) and (d), the Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities may, on behalf of the Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its consequences. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising there from shall be deemed to have been cured, for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
     Section 5.17 CUSIP Numbers.
     The Administrative Trustees in issuing the Trust Preferred Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Property Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Trust Preferred Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Trust Preferred Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Administrative Trustees will promptly notify the Property Trustee of any change in the CUSIP numbers.
     Section 5.18 Remarketing Procedures.
     (a) The Depositor will give notice to the Property Trustee of a Remarketing at least 28 days prior to the related Remarketing Date. Upon written instruction of the Depositor, the Property Trustee will give holders of Normal ITS and Capital ITS, and will request that the Clearing Agency give to its participants holding Normal ITS or Capital ITS, notice of a Remarketing at least 21 days prior to the related Remarketing Date. Such notices will set forth:
     (i) for interest periods for the Notes commencing on or after the Remarketing Settlement Date, the applicable interest payment dates and related record dates;
     (ii) any change in the stated maturity date of the Notes and, if applicable, the date on and after which the Depositor will have the right to redeem the Notes (which is subject to Section 3.2 of the Indenture Supplement);
     (iii) whether in connection with an Early Remarketing that is not the first scheduled Remarketing, the Depositor’s obligations under the Notes will remain subordinated to Senior Debt (as defined in the Indenture) after the Remarketing Settlement Date;
     (iv) any other changes in the terms of the Notes notified by the Depositor in connection with such Remarketing pursuant to Section 3.2 of the Indenture Supplement (including on a Final Remarketing that is a Failed Remarketing, any change in the Stated Maturity Date (as defined in the Indenture) and, if applicable, the date on or after which the
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Trust will have the right to redeem the Notes (which is subject to Section 3.2 of the Indenture Supplement));
     (v) the procedures a Holder of Normal ITS must follow to elect to exchange its Normal ITS for Stripped ITS and Capital ITS if the Remarketing is Successful, and the date by which such election must be made; and
     (vi) the procedures a Holder of Capital ITS must follow to elect to dispose of its Capital ITS in connection with a Remarketing and the date by which such election must be made.
ARTICLE VI
Acts of Holders; Meetings; Voting
     Section 6.1 Limitations on Voting Rights.
     (a) Except as expressly provided in this Trust Agreement and in the Indenture and as otherwise required by law, no Holder of Trust Preferred Securities shall have any right to vote or in any manner otherwise control the administration, operation and management of the Issuer Trust or the obligations of the parties hereto, nor shall anything herein set forth, or contained in the terms of the Trust Securities Certificates, be construed so as to constitute the Holders from time to time as partners or members of an association.
     (b) So long as any Notes are held by the Property Trustee on behalf of the Issuer Trust, the Issuer Trustees shall not (i) direct the time, method and place of conducting any proceeding for any remedy available to the Note Trustee, or execute any trust or power conferred on the Note Trustee with respect to the Notes, (ii) waive any past default that may be waived under Section 5.13 of the Base Indenture, (iii) exercise any right to rescind or annul a declaration that the principal of all the Notes shall be due and payable, or (iv) consent to any amendment, modification or termination of the Indenture or the Notes, where such consent shall be required by the Holders of the Notes pursuant to the terms of the Indenture, without, in each case, obtaining the prior approval of the Holders of at least a Majority in Liquidation Amount of the Normal ITS and the Capital ITS then Outstanding, considered together as a single Class; provided, however, that where a consent under the Indenture would require the consent of each holder of Notes affected thereby, no such consent shall be given by the Property Trustee without the prior written consent of each Holder of Normal ITS and Capital ITS. The Property Trustee shall not revoke any action previously authorized or approved by a vote of the Holders of the Normal ITS and the Capital ITS, except by a subsequent vote of the Holders of the Normal ITS and the Capital ITS. The Property Trustee shall notify all Holders of the Normal ITS and the Capital ITS of any notice of default received with respect to the Notes. In addition to obtaining the foregoing approvals of the Holders of the Normal ITS and the Capital ITS, prior to taking any of the foregoing actions, the Issuer Trustees shall, at the expense of the Depositor, obtain an Opinion of Counsel experienced in such matters to the effect that such action shall not cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes.
     (c) For so long as any Stock Purchase Contracts are outstanding, the Issuer Trustees may consent to any amendment to or modification of the Stock Purchase Contract Agreement or the Collateral Agreement, without having obtained the prior approval of the Holders of any Trust Preferred Securities to such amendment or modification, for the purposes of (i) evidencing the succession of another person to the Issuer Trust’s or the Property Trustee’s obligations thereunder,
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(ii) adding to the covenants therein for the benefit of the Issuer Trust or the Property Trustee or to surrender any of the Depositor’s rights or powers thereunder, (iii) evidencing and providing for the acceptance of appointment of a successor Collateral Agent, Custodial Agent or Securities Intermediary under the Collateral Agreement, (iv) curing any ambiguity, or correcting or supplementing any provisions that may be inconsistent, (v) conforming the terms of the Stock Purchase Contract Agreement or the Collateral Agreement, to the descriptions thereof in the Prospectus, or (vi) making any other provisions with respect to such matters or questions, provided that such action pursuant to this clause (vi) shall not adversely affect the interest of the Holders of Trust Preferred Securities of any Class in any material respect. The Issuer Trustees may, with the consent of the Holders of not less than a Majority in Liquidation Amount of the Normal ITS and Stripped ITS then Outstanding, considered together as a single Class, agree to any other amendment to or modification of the Stock Purchase Contract Agreement or the Collateral Agreement, except that, without obtaining the prior written consent of each Holder of Normal ITS and Capital ITS then Outstanding, the Issuer Trustees may not agree to any amendment or modification that would (A) change any payment dates for Contract Payments, (B) change the amount or type of Pledged Notes or Pledged Treasury Securities required to be pledged under the Collateral Agreement, impair the right of the Property Trustee (on behalf of the Issuer Trust) to receive distributions on Pledged Notes or Pledged Treasury Securities or otherwise adversely affect the Issuer Trust’s rights in or to the Pledged Notes or Pledged Treasury Securities, (C) change the place or currency or reduce any Contract Payments, (D) impair the Property Trustee’s right (or any Holder’s right pursuant to Section 5.16(d)) to institute suit for the enforcement of the Stock Purchase Contracts or payment of any Contract Payments, or (E) reduce the number of shares of Preferred Stock purchasable under the Stock Purchase Contracts, increase the price to purchase Preferred Stock upon settlement of the Stock Purchase Contracts, change the Stock Purchase Date or otherwise adversely affect the Issuer Trust’s rights under the Stock Purchase Contracts.
     (d) So long as any shares of Preferred Stock are held by the Property Trustee on behalf of the Issuer Trust, the Issuer Trustees shall not waive any Preferred Stock Default without obtaining the prior approval of the Holders of at least a Majority in Liquidation Amount of the Normal ITS and the Stripped ITS then Outstanding, considered together as a single Class. Additionally, in addition to and notwithstanding the foregoing, the Issuer Trustees shall not consent to any amendment to the Certificate of Designation or the Depositor’s certificate of incorporation that would change the dates on which dividends are payable on the Preferred Stock or the amount of such dividends, without the prior written consent of each Holder of Normal ITS and Stripped ITS. In addition to obtaining the foregoing approvals of the Holders of Normal ITS and Stripped ITS, prior to taking any of the foregoing actions, the Issuer Trustee shall, at the expense of Depositor, obtain an Opinion of Counsel experienced in such matters to the effect that such action shall not cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes.
     (e) If any proposed amendment to or modification of the Trust Agreement, the Stock Purchase Contract Agreement or the Collateral Agreement provides for, or the Issuer Trustees otherwise propose to effect, any action that would adversely affect in any material respect the powers, preferences or special rights of the Trust Preferred Securities of any Class in a manner that is different from the manner in which it would affect the Trust Preferred Securities of other Classes, whether by way of amendment to or modification of the Trust Agreement, the Stock Purchase Contract Agreement or the Collateral Agreement or otherwise, then the Holders of the Outstanding Trust Preferred Securities of such Class will be entitled to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of the Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities of such Class.
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     (f) No amendment to or modification of any Transaction Document that adversely affects the rights, duties or immunities of the Securities Registrar, the Paying Agent, the Collateral Agent, the Securities Intermediary or the Custodial Agent shall be effective as against any such affected party without its consent.
     Section 6.2 Notice of Meetings.
     Notice of all meetings of the Holders of the Trust Preferred Securities of any one or more Classes, stating the time, place and purpose of the meeting, shall be given by the Property Trustee pursuant to Section 12.8 to each Holder of Trust Preferred Securities of each Class entitled to attend such meeting, at such Holder’s registered address, at least 15 days and not more than 90 days before the meeting. At any such meeting, any business properly before the meeting may be so considered whether or not stated in the notice of the meeting. Any adjourned meeting may be held as adjourned without further notice.
     Section 6.3 Meetings of Holders of the Trust Preferred Securities.
     No annual meeting of Holders is required to be held. However, the Property Trustee or the Administrative Trustees shall call a meeting of the Holders of the Trust Preferred Securities of a Class to vote on any matter upon the written request of the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Trust Preferred Securities of such Class; the Property Trustee or the Administrative Trustees shall call a meeting of the Holders of the Trust Preferred Securities of all Classes to vote on any matter upon the written request of the Holders of at least 25% in aggregate Liquidation Amount of the Outstanding Trust Preferred Securities of all Classes, considered together; and the Administrative Trustees or the Property Trustee may, at any time in their discretion, call a meeting of the Holders of the Trust Preferred Securities of any Class or Classes to vote on any matters as to which such Holders are entitled to vote.
     The Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities of the Class or Classes (as applicable) entitled to attend a meeting, present in person or by proxy, shall constitute a quorum at any meeting of the Holders of the Trust Preferred Securities.
     If a quorum is present at a meeting, an affirmative vote by the Holders present, in person or by proxy, holding Trust Preferred Securities representing at least a Majority in Liquidation Amount of the Trust Preferred Securities of the Class or Classes (as applicable) entitled to attend such meeting held by the Holders present, either in person or by proxy, at such meeting shall constitute the action of the Holders of the Trust Preferred Securities of the Class or Classes (as applicable) invited to attend such meeting, unless this Trust Agreement requires a greater number of affirmative votes.
     Section 6.4 Voting Rights.
     Holders shall be entitled to one vote for each $1,000 of Liquidation Amount represented by their Outstanding Trust Securities in respect of any matter as to which such Holders are entitled to vote.
     Section 6.5 All Votes Must Be Made by a United States Person.
     Voting and consensual rights available to or in favor of Holders or Owners under this Trust Agreement may be exercised only by a United States Person that is a beneficial owner of a Trust Security or by a United States Person acting as irrevocable agent with discretionary powers for the
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beneficial owner of a Trust Security that is not a United States Person. Holders that are not United States Persons must irrevocably appoint a United States Person with discretionary powers to act as their agent with respect to such voting and consensual rights.
     Section 6.6 Proxies, Etc.
     At any meeting of Holders, any Holder entitled to vote thereat may vote by proxy, provided that no proxy shall be voted at any meeting unless it shall have been placed on file with the Property Trustee, or with such other officer or agent of the Issuer Trust as the Property Trustee may direct, for verification prior to the time at which such vote shall be taken. Pursuant to a resolution of the Property Trustee, proxies may be solicited in the name of the Property Trustee or one or more officers of the Property Trustee. Only Holders of record shall be entitled to vote. When Trust Securities are held jointly by several Persons, any one of them may vote at any meeting in person or by proxy in respect of such Trust Securities, but if more than one of them shall be present at such meeting in person or by proxy, and such joint owners or their proxies so present disagree as to any vote to be cast, such vote shall not be received in respect of such Trust Securities. A proxy purporting to be executed by or on behalf of a Holder shall be deemed valid unless challenged at or prior to its exercise, and the burden of proving invalidity shall rest on the challenger. No proxy shall be valid more than three years after its date of execution.
     Section 6.7 Holder Action by Written Consent.
     Any action that may be taken by Holders at a meeting may be taken without a meeting and without prior notice if Holders holding at least a Majority in Liquidation Amount of all Trust Preferred Securities entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any other provision of this Trust Agreement) shall consent to the action in writing.
     Section 6.8 Record Date for Voting and Other Purposes.
     For the purposes of determining the Holders who are entitled to notice of and to vote at any meeting or by written consent, or to participate in any distribution on the Trust Securities in respect of which a record date is not otherwise provided for in this Trust Agreement, or for the purpose of any other action, the Administrative Trustees may from time to time fix a date, not more than 90 days prior to the date of any meeting of Holders or the payment of a Distribution or other action, as the case may be, as a record date for the determination of the identity of the Holders of record for such purposes. The Administrative Trustees shall cause a notice of any such date fixed in respect of any such distribution to be forwarded to each Paying Agent.
     Section 6.9 Acts of Holders.
     Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Trust Agreement to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as otherwise expressly provided herein, such action shall become effective when such instrument or instruments are delivered to the Property Trustee and the Administrative Trustees. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Trust
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Agreement and (subject to Section 8.1) conclusive in favor of the Issuer Trustees, if made in the manner provided in this Section.
     The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner that any Issuer Trustee receiving the same deems sufficient.
     The ownership of Trust Securities shall be proved by the Securities Register.
     Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Trust Security shall bind every future Holder of the same Trust Security and the Holder of every Trust Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Issuer Trustees, or the Issuer Trust in reliance thereon, whether or not notation of such action is made upon such Trust Security.
     Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Trust Security may do so with regard to all or any part of the Liquidation Amount of such Trust Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such Liquidation Amount.
     If any dispute shall arise between the Holders and the Issuer Trustees or among the Holders or the Issuer Trustees with respect to the authenticity, validity or binding nature of any request, demand, authorization, direction, consent, waiver or other Act of such Holder or Issuer Trustee under this Article VI, then the determination of such matter by the Property Trustee shall be conclusive with respect to such matter.
     Section 6.10 Inspection of Records.
     Upon reasonable notice to the Administrative Trustees and the Property Trustee, the records of the Issuer Trust shall be open to inspection by Holders during normal business hours for any purpose reasonably related to such Holder’s interest as a Holder.
ARTICLE VII
Representations and Warranties
     Section 7.1 Representations and Warranties of the Property Trustee and the Delaware Trustee.
     The Property Trustee and the Delaware Trustee, each severally on behalf of and as to itself, hereby represents and warrants for the benefit of the Depositor and the Holders that:
     (a) the Property Trustee is a banking corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware;
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     (b) the Property Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
     (c) the Delaware Trustee is a banking corporation, duly organized, validly existing and in good standing under the laws of the State of Delaware;
     (d) the Delaware Trustee has full corporate power, authority and legal right to execute, deliver and perform its obligations under this Trust Agreement and has taken all necessary action to authorize the execution, delivery and performance by it of this Trust Agreement;
     (e) this Trust Agreement has been duly authorized, executed and delivered by the Property Trustee and the Delaware Trustee and constitutes the valid and legally binding agreement of each of the Property Trustee and the Delaware Trustee enforceable against each of them in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
     (f) the execution, delivery and performance of this Trust Agreement have been duly authorized by all necessary corporate or other action on the part of the Property Trustee and the Delaware Trustee and do not require any approval of stockholders of the Property Trustee and the Delaware Trustee and such execution, delivery and performance will not (i) violate the charter or by-laws of the Property Trustee or the Delaware Trustee, (ii) violate any provision of, or constitute, with or without notice or lapse of time, a default under, or result in the creation or imposition of, any Lien on any properties included in the Trust Property pursuant to the provisions of, any indenture, mortgage, credit agreement, license or other agreement or instrument to which the Property Trustee or the Delaware Trustee is a party or by which it is bound, or (iii) violate any law, governmental rule or regulation of the State of Delaware, governing the banking or trust powers of the Property Trustee or the Delaware Trustee (as appropriate in context) or any order, judgment or decree applicable to the Property Trustee or the Delaware Trustee;
     (g) neither the authorization, execution or delivery by the Property Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of any of the transactions by the Property Trustee or the Delaware Trustee (as the case may be) contemplated herein requires the consent or approval of, the giving of notice to, the registration with or the taking of any other action with respect to any governmental authority or agency under any existing law of the State of Delaware, governing the banking, trust or general powers of the Property Trustee or the Delaware Trustee (as appropriate in context), other than the filing of the Certificate of Trust with the Delaware Secretary of State; and
     (h) there are no proceedings pending or, to the best of each of the Property Trustee’s and the Delaware Trustee’s knowledge, threatened against or affecting the Property Trustee or the Delaware Trustee in any court or before any governmental authority, agency or arbitration board or tribunal that, individually or in the aggregate, would materially and adversely affect the Issuer Trust or would question the right, power and authority of the Property Trustee or the Delaware Trustee, as the case may be, to enter into or perform its obligations as one of the Issuer Trustees under this Trust Agreement.
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     Section 7.2 Representations and Warranties of Depositor.
     The Depositor hereby represents and warrants for the benefit of the Holders that:
     (a) the Trust Securities Certificates issued at the Time of Delivery on behalf of the Issuer Trust have been duly authorized and will have been duly and validly executed, issued and delivered by the Issuer Trustees pursuant to the terms and provisions of, and in accordance with the requirements of, this Trust Agreement, and the Holders will be, as of such date, entitled to the benefits of this Trust Agreement; and
     (b) there are no taxes, fees or other governmental charges payable by the Issuer Trust (or the Issuer Trustees on behalf of the Issuer Trust) under the laws of the State of Delaware or any political subdivision thereof in connection with the execution, delivery and performance by any Issuer Trustee of this Trust Agreement.
ARTICLE VIII
The Issuer Trustees
     Section 8.1 Certain Duties and Responsibilities.
     (a) The duties and responsibilities of the Issuer Trustees shall be as provided by this Trust Agreement, subject to Section 12.10. Notwithstanding the foregoing, no provision of this Trust Agreement shall require any of the Issuer Trustees to expend or risk its or their own funds or otherwise incur any financial liability in the performance of any of its or their duties hereunder, or in the exercise of any of its or their rights or powers, if it or they shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to the Issuer Trustees shall be subject to the provisions of this Section 8.1. To the extent that, at law or in equity, an Issuer Trustee has duties and liabilities relating to the Issuer Trust or to the Holders, such Issuer Trustee shall not be liable to the Issuer Trust or to any Holder for such Issuer Trustee’s good faith reliance on the provisions of this Trust Agreement. Except as otherwise required by the Trust Indenture Act and the Commission’s rules thereunder applicable to indentures qualified under such Act, the provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of the Issuer Trustees otherwise existing at law or in equity, are agreed by the Depositor and the Holders to replace such other duties and liabilities of the Issuer Trustees.
     (b) All payments made by the Property Trustee or a Paying Agent in respect of the Trust Securities shall be made only from the revenue and proceeds from the Trust Property and only to the extent that there shall be sufficient revenue or proceeds from the Trust Property to enable the Property Trustee or a Paying Agent to make payments in accordance with the terms hereof. Each Holder, by its acceptance of a Trust Security, agrees that it will look solely to the revenue and proceeds from the Trust Property to the extent legally available for distribution to it as herein provided and that the Issuer Trustees are not personally liable to such Holder for any amount distributable in respect of any Trust Security or for any other liability in respect of any Trust Security. This Section 8.1(b) does not limit the liability of the Issuer Trustees expressly set forth elsewhere in this Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture Act.
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     (c) If an Event of Default has occurred and is continuing, the Property Trustee shall enforce this Trust Agreement and the Transaction Agreements for the benefit of the Holders.
     (d) The Property Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Trust Agreement (including pursuant to Section 12.10), and no implied covenants shall be read into this Trust Agreement against the Property Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 5.13 of the Base Indenture), the Property Trustee shall exercise such of the rights and powers vested in it by this Trust Agreement, and use the same degree of care and skill in its exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
     (e) No provision of this Trust Agreement shall be construed to relieve the Property Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
     (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred:
     (A) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Trust Agreement (including pursuant to Section 12.10), and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Trust Agreement (including pursuant to Section 12.10); and
     (B) in the absence of bad faith on the part of the Property Trustee, the Property Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Property Trustee and conforming to the requirements of this Trust Agreement; but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Trust Agreement;
     (ii) the Property Trustee shall not be liable for any error of judgment made in good faith by an authorized officer of the Property Trustee, unless it shall be proved that the Property Trustee was negligent in ascertaining the pertinent facts;
     (iii) the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities of all Affected Classes considered together as a single Class, relating to the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement;
     (iv) the Property Trustee’s sole duty with respect to the custody, safekeeping and physical preservation of the Notes and the Payment Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the Trust Indenture Act;
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     (v) the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Depositor; and money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Payment Account maintained by the Property Trustee pursuant to Section 3.1 and except to the extent otherwise required by law;
     (vi) the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees, the Depositor, the Collateral Agent, the Securities Registrar, the Custodial Agent, the Paying Agent, the Remarketing Agent or any other Person, with their respective duties under this Trust Agreement or any Transaction Document, nor shall the Property Trustee be liable for the default or misconduct of any other Issuer Trustee, the Administrative Trustees, the Depositor, the Collateral Agent, the Securities Registrar, the Custodial Agent, the Paying Agent, the Remarketing Agent or any other Person; and
     (vii) subject to Section 8.1(c), no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it.
     (f) The Administrative Trustees shall not be responsible for monitoring the compliance by the other Issuer Trustees or the Depositor with their respective duties under this Trust Agreement, nor shall either Administrative Trustee be liable for the default or misconduct of any other Issuer Trustee or the Depositor.
     Section 8.2 Certain Notices.
     Within thirty days after the occurrence of any Event of Default actually known to the Property Trustee or the Administrative Trustees, the Property Trustee or the Administrative Trustees shall transmit, in the manner and to the extent provided in Section 12.8, notice of such Event of Default to the Holders of each Affected Class, unless such Event of Default shall have been cured or waived.
     For so long as Notes are included within the Trust Property, within five Business Days after the receipt of notice of the Depositor’s exercise of its right to defer the payment of interest on the Notes pursuant to the Indenture, the Property Trustee or the Administrative Trustees shall transmit, in the manner and to the extent provided in Section 12.8, notice of such exercise to the Holders of the Normal ITS and the Capital ITS, unless such exercise shall have been revoked.
     If during any calendar year any original issue discount shall have accrued on the Notes, the Depositor shall file with each Paying Agent (including the Trustee if it is a Paying Agent) promptly at the end of such calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on outstanding Notes as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
     For so long as Stock Purchase Contracts are included within the Trust Property, within five Business Days after the receipt of notice of the Depositor’s exercise of its right to defer Contract
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Payments, the Property Trustee or the Administrative Trustees shall transmit, in the manner and to the extent provided in Section 12.8, notice of such exercise to the Holders of the Normal ITS and the Stripped ITS, unless such exercise shall have been revoked.
     For so long as shares of Preferred Stock are included within the Trust Property, within five Business Days after the receipt of notice of the Depositor’s determination not to pay dividends on a dividend payment date, the Property Trustee shall transmit, in the manner and to the extent provided in Section 12.8, notice of such decision to the Holders of the Normal ITS and Stripped ITS, unless such notice shall have been revoked.
     The Property Trustee shall not be deemed to have knowledge of any Event of Default unless the Property Trustee shall have received written notice or a Responsible Officer of the Property Trustee charged with the administration of this Trust Agreement shall have obtained actual knowledge of such Event of Default.
     Section 8.3 Certain Rights of Property Trustee.
     Subject to the provisions of Section 8.1:
     (a) the Property Trustee may rely and shall be protected in acting or refraining from acting in good faith upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
     (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s opinion as to the course of action to be taken; provided, however, that if the Depositor fails to deliver such opinion, the Property Trustee may take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the interests of the Holders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct;
     (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate;
     (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act;
     (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or re-registration thereof;
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     (f) the Property Trustee may consult with counsel of its own selection (which counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction;
     (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities that might be incurred by it in compliance with such request or direction; provided that nothing contained in this Section 8.3(g) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement;
     (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Depositor and shall incur no liability of any kind by reason of such inquiry or investigation;
     (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, provided that the Property Trustee shall be responsible for its own negligence or willful misconduct with respect to selection of any agent or attorney appointed by it hereunder;
     (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of the Trust Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions; and
     (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.
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     Section 8.4 Not Responsible for Recitals or Issuance of Securities.
     The recitals contained herein and in the Trust Securities Certificates shall be taken as the statements of the Issuer Trust and the Depositor, and the Issuer Trustees do not assume any responsibility for their correctness. The Issuer Trustees shall not be accountable for the use or application by the Depositor of the proceeds of the Notes.
     Section 8.5 May Hold Securities.
     Any Issuer Trustee or any other agent of any Issuer Trustee or the Issuer Trust, in its individual or any other capacity, may become the owner or pledgee of Trust Securities and, subject to Sections 8.8 and 8.13, may otherwise deal with the Issuer Trust with the same rights it would have if it were not Issuer Trustee or such other agent.
     Section 8.6 Compensation; Indemnity; Fees.
     The Depositor agrees:
     (a) to pay to the Issuer Trustees from time to time such reasonable compensation for all services rendered by them hereunder as may be separately agreed by the Depositor and the Issuer Trustees from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
     (b) except as otherwise expressly provided herein, to reimburse the Issuer Trustees upon request for all reasonable expenses, disbursements and advances incurred or made by the Issuer Trustees in accordance with any provision of this Trust Agreement (including the reasonable compensation and the expenses and disbursements of their agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by their own negligence, bad faith or willful misconduct; and
     (c) to the fullest extent permitted by applicable law, to indemnify and hold harmless (i) each Issuer Trustee, (ii) any Affiliate of any Issuer Trustee, (iii) any officer, director, shareholder, employee, representative or agent of any Issuer Trustee, and (iv) any employee or agent of the Issuer Trust (referred to herein as an “Indemnified Person”) from and against any loss, damage, liability, action, suit, tax, penalty, expense or claim of any kind or nature whatsoever incurred by such Indemnified Person by reason of the creation, operation or dissolution of the Issuer Trust or any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Issuer Trust and in a manner such Indemnified Person reasonably believed to be within the scope of authority conferred on such Indemnified Person by this Trust Agreement, except that no Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Indemnified Person by reason of negligence, bad faith or willful misconduct with respect to such acts or omissions.
     The provisions of this Section 8.6 shall survive the termination of this Trust Agreement and the removal or resignation of any Issuer Trustee. No Issuer Trustee may claim any Lien on any Trust Property as a result of any amount due pursuant to this Section 8.6.
     Notwithstanding any provision of law or equity, the Depositor and any Issuer Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the business of the Issuer Trust, and the Issuer Trust and the Holders of Trust Securities shall have no rights by virtue of this Trust Agreement in
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and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the business of the Issuer Trust, shall not be deemed wrongful or improper. Notwithstanding any provision of law or equity, neither the Depositor nor any Issuer Trustee shall be obligated to present any particular investment or other opportunity to the Issuer Trust even if such opportunity is of a character that, if presented to the Issuer Trust, could be taken by the Issuer Trust, and the Depositor and any Issuer Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity. Notwithstanding any provision of law or equity, any Issuer Trustee may engage or be interested in any financial or other transaction with the Depositor or any Affiliate of the Depositor, or may act as depository for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Depositor or its Affiliates.
     Section 8.7 Corporate Property Trustee Required; Eligibility of Issuer Trustees and Administrative Trustees.
     (a) There shall at all times be a Property Trustee hereunder with respect to the Trust Securities. The Property Trustee shall be a Person that is a national or state chartered bank and eligible pursuant to the Trust Indenture Act to act as such and that has a combined capital and surplus of at least $50,000,000. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 8.7 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Property Trustee with respect to the Trust Securities shall cease to be eligible in accordance with the provisions of this Section 8.7, it shall resign immediately in the manner and with the effect hereinafter specified in this Article VIII. At the time of appointment, the Property Trustee must have securities rated in one of the three highest rating categories by a nationally recognized statistical rating organization.
     (b) There shall at all times be one or more Administrative Trustees hereunder with respect to the Trust Securities. Each Administrative Trustee shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more persons authorized to bind that entity.
     (c) There shall at all times be a Delaware Trustee. The Delaware Trustee shall either be (i) a natural person who is at least 21 years of age and a resident of the State of Delaware, or (ii) a legal entity with its principal place of business in the State of Delaware and that otherwise meets the requirements of applicable Delaware law and that shall act through one or more persons authorized to bind such entity.
     Section 8.8 Conflicting Interests.
     (a) If the Property Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Property Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Trust Agreement.
     (b) The Guarantee Agreement and the Indenture shall be deemed to be specifically described in this Trust Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
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     Section 8.9 Co-Trustees and Separate Trustee.
     Unless and until a Note Event of Default shall have occurred and be continuing, at any time or times, for the purpose of meeting the legal requirements of the Trust Indenture Act or of any jurisdiction in which any part of the Trust Property may at the time be located, the Holder of Common Securities and the Administrative Trustees shall have the power to appoint one or more Persons either to act as co-trustee, jointly with the Property Trustee, of all or any part of such Trust Property, or to the extent required by law to act as separate trustee of any such property, in either case with such powers as may be provided in the instrument of appointment, and to vest in such Person or Persons in the capacity aforesaid, any property, title, right or power deemed necessary or desirable, subject to the other provisions of this Section. If a Note Event of Default shall have occurred and be continuing, the Property Trustee shall have the sole power to so appoint such a co-trustee or separate trustee, and upon the written request of the Property Trustee, the Depositor, and the Administrative Trustees shall for such purpose join with the Property Trustee in the execution, delivery, and performance of all instruments and agreements necessary or proper to appoint, such co-trustee or separate trustee. Any co-trustee or separate trustee appointed pursuant to this Section shall either be (i) a natural person who is at least 21 years of age and a resident of the United States, or (ii) a legal entity with its principal place of business in the United States that shall act through one or more persons authorized to bind such entity.
     Should any written instrument from the Depositor be required by any co-trustee or separate trustee so appointed for more fully confirming to such co-trustee or separate trustee such property, title, right, or power, any and all such instruments shall, on request, be executed, acknowledged and delivered by the Depositor.
     Every co-trustee or separate trustee shall, to the extent permitted by law, but to such extent only, be appointed subject to the following terms, namely:
     (a) The Trust Securities shall be executed by one or more Administrative Trustees, and the Trust Securities shall be delivered by the Property Trustee or an Administrative Trustee on behalf of the Property Trustee, and all rights, powers, duties, and obligations hereunder in respect of the custody of securities, cash and other personal property held by, or required to be deposited or pledged with, the Property Trustee specified hereunder shall be exercised solely by the Property Trustee and not by such co-trustee or separate trustee.
     (b) The rights, powers, duties, and obligations hereby conferred or imposed upon the Property Trustee in respect of any property covered by such appointment shall be conferred or imposed upon and exercised or performed by the Property Trustee or by the Property Trustee and such co-trustee or separate trustee jointly, as shall be provided in the instrument appointing such co-trustee or separate trustee, except to the extent that under any law of any jurisdiction in which any particular act is to be performed, the Property Trustee shall be incompetent or unqualified to perform such act, in which event such rights, powers, duties and obligations shall be exercised and performed by such co-trustee or separate trustee.
     (c) The Property Trustee at any time, by an instrument in writing executed by it, with the written concurrence of the Depositor, may accept the resignation of or remove any co-trustee or separate trustee appointed under this Section 8.9, and, in case a Note Event of Default has occurred and is continuing, the Property Trustee shall have power to accept the resignation of, or remove, any such co-trustee or separate trustee without the concurrence of the Depositor. Upon the written request of the Property Trustee, the Depositor shall join with the Property Trustee in the execution, delivery and performance of all instruments and agreements necessary or proper to effectuate such
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resignation or removal. A successor to any co-trustee or separate trustee so resigning or removed may be appointed in the manner provided in this Section 8.9.
No co-trustee or separate trustee hereunder shall be personally liable by reason of any act or omission of the Property Trustee or any other trustee hereunder.
     (d) The Property Trustee shall not be liable by reason of any act of a co-trustee or separate trustee.
     (e) Any Act of Holders delivered to the Property Trustee shall be deemed to have been delivered to each such co-trustee and separate trustee.
     Section 8.10 Resignation and Removal; Appointment of Successor.
     No resignation or removal of any Issuer Trustee (the “Relevant Trustee”) and no appointment of a successor Issuer Trustee pursuant to this Article VIII shall become effective until the acceptance of appointment by the successor Issuer Trustee in accordance with the applicable requirements of Section 8.11.
     Subject to the immediately preceding paragraph, the Relevant Trustee may resign at any time by giving written notice thereof to the Holders and by appointing a successor Relevant Trustee. The Relevant Trustee shall appoint a successor by requesting from at least three Persons meeting the eligibility requirements its expenses and charges to serve as the Relevant Trustee on a form provided by the Administrative Trustees, and selecting the Person who agrees to the lowest expenses and charges. If the instrument of acceptance by the successor Issuer Trustee required by Section 8.11 shall not have been delivered to the Relevant Trustee within 60 days after the giving of such notice of resignation, the Relevant Trustee may petition, at the expense of the Depositor, in the case of the Property Trustee, any court of competent jurisdiction for the appointment of a successor Relevant Trustee.
     The Administrative Trustees, or any of them, may be removed at any time by Act of the Holders of Common Securities delivered to the Relevant Trustee.
     The Property Trustee or the Delaware Trustee, or both of them, may be removed by Act of the Holders of at least a Majority in Liquidation Amount of the Trust Preferred Securities, delivered to the Relevant Trustee (in its individual capacity and, in the case of the Property Trustee, on behalf of the Issuer Trust) (i) for cause (including upon the occurrence of an Event of Default described in subparagraph (d) of the definition thereof with respect to the Relevant Trustee), or (ii) at any time if a Note Event of Default shall have occurred and be continuing. Unless and until a Note Event of Default shall have occurred and be continuing, the Property Trustee or the Delaware Trustee, or both of them, may be removed at any time by Act of the Holders of the Common Securities.
     If a resigning Property Trustee or Delaware Trustee shall fail to appoint a successor, or if the Property Trustee or the Delaware Trustee shall be removed or become incapable of acting as Issuer Trustee, or if a vacancy shall occur in the office of the Property Trustee or the Delaware Trustee for any cause, the Holders of the Common Securities by Act of such Holders delivered to the Relevant Trustee or, if a Note Event of Default shall have occurred and be continuing, the Holders of the Trust Preferred Securities, by Act of the Holders of not less than 25% in aggregate Liquidation Amount of the Trust Preferred Securities then Outstanding delivered to such Relevant Trustee, may appoint a successor Relevant Trustee or Trustees, and such successor Issuer Trustee shall comply with the applicable requirements of Section 8.11. If no successor Relevant Trustee
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shall have been so appointed by the Holders of the Common Securities or Trust Preferred Securities, as the case may be, and accepted appointment in the manner required by Section 8.11, any Holder, on behalf of such Holder and all others similarly situated, or any other Issuer Trustee, may petition any court of competent jurisdiction for the appointment of a successor Relevant Trustee.
     The Property Trustee shall give notice of each resignation and each removal of an Issuer Trustee and each appointment of a successor Issuer Trustee to all Holders in the manner provided in Section 12.8 and shall give notice to the Depositor and to the Administrative Trustees. Each notice shall include the name of the successor Relevant Trustee and the address of its Corporate Trust Office if it is the Property Trustee.
     Notwithstanding the foregoing or any other provision of this Trust Agreement, if any Delaware Trustee who is a natural person dies or becomes, in the opinion of the Holders of the Common Securities, incompetent or incapacitated, the vacancy created by such death, incompetence or incapacity may be filled by the Property Trustee following the procedures regarding expenses and charges set forth above (with the successor being a Person who satisfies the eligibility requirement for the Delaware Trustee set forth in Section 8.7).
     Section 8.11 Acceptance of Appointment by Successor.
     In case of the appointment hereunder of a successor Relevant Trustee, the retiring Relevant Trustee (if requested by the Depositor) and each successor Relevant Trustee with respect to the Trust Securities shall execute and deliver an amendment hereto wherein each successor Relevant Trustee shall accept such appointment and which (a) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Relevant Trustee all the rights, powers, trusts and duties of the retiring Relevant Trustee with respect to the Trust Securities and the Issuer Trust, and (b) shall add to or change any of the provisions of this Trust Agreement as shall be necessary to provide for or facilitate the administration of the Issuer Trust by more than one Relevant Trustee, it being understood that nothing herein or in such amendment shall constitute such Relevant Trustees co-trustees and upon the execution and delivery of such amendment the resignation or removal of the retiring Relevant Trustee shall become effective to the extent provided therein and each such successor Relevant Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Relevant Trustee, other than the filing of an amendment to the Certificate of Trust to the extent required under the Delaware Statutory Trust Act; but, on request of the Issuer Trust or any successor Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and deliver to such successor Relevant Trustee all Trust Property, all proceeds thereof and money held by such retiring Relevant Trustee hereunder with respect to the Trust Securities and the Issuer Trust.
     Upon request of any such successor Relevant Trustee, the Issuer Trust shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Relevant Trustee all such rights, powers and trusts referred to in the preceding paragraph.
     No successor Relevant Trustee shall accept its appointment unless at the time of such acceptance such successor Relevant Trustee shall be qualified and eligible under this Article VIII.
     Section 8.12 Merger, Conversion, Consolidation or Succession to Business.
     Any Person into which the Property Trustee or the Delaware Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Relevant Trustee shall be a party, or any Person,
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succeeding to all or substantially all the corporate trust business of such Relevant Trustee, shall be the successor of such Relevant Trustee hereunder, provided that such Person shall be otherwise qualified and eligible under this Article VIII, without the execution or filing of any paper or any further act on the part of any of the parties hereto, other than the filing of an amendment to the Certificate of Trust to the extent required under the Delaware Statutory Trust Act.
     Section 8.13 Preferential Collection of Claims Against Depositor or Issuer Trust.
     If and when the Property Trustee shall be or become a creditor of the Depositor or the Issuer Trust (or any other obligor upon the Trust Preferred Securities), the Property Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Depositor or the Issuer Trust (or any such other obligor).
     Section 8.14 Property Trustee May File Proofs of Claim.
     In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Issuer Trust or any other obligor upon the Trust Securities or the property of the Issuer Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Trust Securities shall then be due and payable and irrespective of whether the Property Trustee shall have made any demand on the Issuer Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise:
     (a) to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Trust Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding; and
     (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee.
     Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement adjustment or compensation affecting the Trust Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding.
     Section 8.15 Reports by Property Trustee.
     (a) Within 60 days after May 15 of each year commencing with May 15, 2006, the Property Trustee shall transmit to all Holders in accordance with Section 12.8, and to the Depositor, a brief report dated as of the immediately preceding May 15 with respect to:
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     (i) its eligibility under Section 8.7 or, in lieu thereof, if to the best of its knowledge it has continued to be eligible under said Section, a written statement to such effect;
     (ii) a statement that the Property Trustee has complied with all of its obligations under this Trust Agreement during the twelve-month period (or, in the case of the initial report, the period since the Closing Date) ending with such May 15 or, if the Property Trustee has not complied in any material respect with such obligations, a description of such noncompliance; and
     (iii) any change in the property and funds in its possession as Property Trustee since the date of its last report and any action taken by the Property Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Trust Securities.
     (b) In addition, the Property Trustee shall transmit to Holders such reports concerning the Property Trustee and its actions under this Trust Agreement as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
     (c) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Property Trustee with each national stock exchange, the Nasdaq National Market or such other interdealer quotation system or self-regulatory organization upon which the Trust Preferred Securities are listed or quoted, if any, and with the Commission, the Depositor and the relevant stock exchange or self-regulatory organization.
     Section 8.16 Reports to the Property Trustee.
     Each of the Depositor and the Administrative Trustees shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act. The Depositor and the Administrative Trustees shall annually file with the Property Trustee a certificate specifying whether such Person is in compliance with all of the terms and covenants (if any) applicable to such Person hereunder.
     Section 8.17 Evidence of Compliance with Conditions Precedent.
     Each of the Depositor and the Administrative Trustees shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an Officers’ Certificate.
     Section 8.18 Number of Issuer Trustees.
     (a) The number of Issuer Trustees shall be five, unless the Property Trustee also acts as the Delaware Trustee, in which case the number of Issuer Trustees may be four.
     (b) If an Issuer Trustee ceases to hold office for any reason, a vacancy shall occur. The vacancy shall be filled with an Issuer Trustee appointed in accordance with Section 8.10.
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     (c) The death, resignation, retirement, removal, bankruptcy, incompetence or incapacity to perform the duties of an Issuer Trustee shall not operate to annul, terminate or dissolve the Issuer Trust.
     Section 8.19 Delegation of Power.
     (a) Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purpose of executing any documents contemplated in Section 2.7(a) or making any governmental filing.
     (b) The Administrative Trustees shall have power to delegate from time to time to such of their number the doing of such things and the execution of such instruments either in the name of the Issuer Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of this Trust Agreement.
ARTICLE IX
Dissolution, Liquidation and Merger
     Section 9.1 Perpetual Existence.
     The Issuer Trust shall have perpetual existence and shall be dissolved only in accordance with this Article IX.
     Section 9.2 Early Dissolution.
     The first to occur of any of the following events is an “Early Dissolution Event”:
     (a) the occurrence of a Bankruptcy Event in respect of, or the dissolution or liquidation of, the Depositor, unless the Common Securities shall be transferred as provided by Section 5.10, in which case this provision shall refer instead to any such successor Holder of the Common Securities;
     (b) the redemption of all of the Trust Preferred Securities in accordance with the provisions of this Trust Agreement; and
     (c) the entry of an order for dissolution of the Issuer Trust by a court of competent jurisdiction.
     If an Early Dissolution Event occurs, Section 9.4 shall apply.
     Section 9.3 Dissolution.
     The respective obligations and responsibilities of the Issuer Trustees, the Administrative Trustees and the Issuer Trust created and continued hereby shall terminate upon the latest to occur of the following: (a) the distribution by the Property Trustee to Holders of all amounts required to be distributed hereunder upon the liquidation of the Issuer Trust pursuant to Section 9.4, or upon the redemption of all of the Trust Securities pursuant to Section 4.2; (b) the payment of any expenses owed by the Issuer Trust; and (c) the discharge of all administrative duties of the
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Administrative Trustees, including the performance of any tax reporting obligations with respect to the Issuer Trust or the Holders.
     Section 9.4 Liquidation.
     (a) If an Early Dissolution Event specified in clause (a) of Section 9.2 occurs, the Issuer Trust shall be liquidated by the Property Trustee and the Administrative Trustees as expeditiously as the Property Trustee and the Administrative Trustees determine to be possible by distributing, after satisfaction of liabilities to creditors of the Issuer Trust as provided by applicable law, to each Holder of Trust Preferred Securities of each Class a Like Amount of Corresponding Assets as of the date of such distribution, subject to Section 9.4(d). If an Early Dissolution Event specified in clause (c) of Section 9.2 occurs, because such Early Dissolution Event is also an Early Settlement Event, unless otherwise required by applicable law the Issuer Trust will not be liquidated until after the Stock Purchase Date but, commencing promptly after the Stock Purchase Date, the Issuer Trust shall be liquidated by the Property Trustee and the Administrative Trustees as expeditiously as the Property Trustee and the Administrative Trustees determine to be possible by distributing, after satisfaction of liabilities to creditors of the Issuer Trust as provided by applicable law, to each Holder of Trust Preferred Securities of each Class a Like Amount of Corresponding Assets as of the date of such distribution, subject to Section 9.4(d). Notice of liquidation shall be given by the Property Trustee or the Administrative Trustees by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Liquidation Date to each Holder of Trust Preferred Securities of each Class at such Holder’s address appearing in the Securities Register. All such notices of liquidation shall:
     (i) state the CUSIP Number of the Trust Securities of each Class;
     (ii) state the Liquidation Date;
     (iii) state that from and after the Liquidation Date, the Trust Securities of such Class will no longer be deemed to be Outstanding and any Trust Securities Certificates not surrendered for exchange will be deemed to represent a Like Amount of Corresponding Assets as of the date of such distribution, or if Section 9.4(d) applies, a right to receive a Liquidation Distribution; and
     (iv) provide such information with respect to the mechanics by which Holders may exchange Trust Securities Certificates of such Class for Corresponding Assets, or if Section 9.4(d) applies, receive a Liquidation Distribution, as the Property Trustee (after consultation with the Administrative Trustees) shall deem appropriate.
     (b) Except where Section 9.2(b) or 9.4(d) applies, in order to effect the liquidation of the Issuer Trust and distribution of the Corresponding Assets to Holders, the Property Trustee, either itself acting as exchange agent or through the appointment of a separate exchange agent, shall establish a record date for such distribution (which shall be not more than 30 days prior to the Liquidation Date) and, establish such procedures as it shall deem appropriate to effect the distribution of Corresponding Assets in exchange for the Outstanding Trust Securities Certificates of the related Classes.
     (c) Except where Section 9.2(b) or 9.4(d) applies, after the Liquidation Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii) if the Corresponding Assets for a Class of Trust Preferred Securities are Notes or shares of Preferred Stock, certificates representing a Like Amount of Notes or Preferred Stock (or fractional interests in or depositary shares for
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Preferred Stock) will be issued to Holders of Trust Securities Certificates of the relevant Classes, upon surrender of such certificates to the exchange agent for exchange, and where Pledged Treasury Securities are Corresponding Assets, Pledged Treasury Securities will be delivered by Book-Entry Transfer to Holders upon surrender of such certificates, (iii) any Trust Securities Certificates not so surrendered for exchange will be deemed to represent a Like Amount of Corresponding Assets of the applicable Class until such certificates are so surrendered (and until such certificates are so surrendered, no payments of interest, principal, dividends, redemption price or otherwise will be made to Holders of Trust Securities Certificates with respect to such Corresponding Assets) and (iv) all rights of Holders holding Trust Securities will cease, except the right of such Holders to receive Corresponding Assets upon surrender of Trust Securities Certificates.
     (d) If, notwithstanding the other provisions of this Section 9.4, whether because of an order for dissolution entered by a court of competent jurisdiction or otherwise, distribution of the Corresponding Assets in the manner provided herein is determined by the Property Trustee and the Administrative Trustees not to be practical, or if an Early Dissolution Event specified in clause (b) of Section 9.2 occurs, the Trust Property shall be liquidated, and the Issuer Trust’s affairs wound-up, by the Property Trustee and the Administrative Trustees in such manner as the Property Trustee and the Administrative Trustees determine. In such event, upon the winding-up of the Issuer Trust except with respect to an Early Dissolution Event specified in clause (b) of Section 9.2, Holders will be entitled to receive out of the assets of the Issuer Trust available for distribution to Holders, after satisfaction of liabilities to creditors of the Issuer Trust as provided by applicable law, an amount equal to the Liquidation Amount per Trust Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the “Liquidation Distribution”). If, upon any such winding-up, the Liquidation Distribution can be paid only in part because the Issuer Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then, subject to the next succeeding sentence, the amounts payable by the Issuer Trust on the Trust Securities shall be paid on a pro rata basis (based upon Liquidation Amounts), except that the right of Holders of the Common Securities to receive Liquidation Distributions will be subordinated to the right of Holders of Trust Preferred Securities to receive Liquidation Distributions as provided in Section 4.3(c).
     Section 9.5 Mergers, Consolidations, Amalgamations or Replacements of Issuer Trust.
     The Issuer Trust may not merge with or into, consolidate, amalgamate, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any corporation or other body, except pursuant to Section 9.4 or this Section 9.5. At the request of the Holders of the Common Securities, with the consent of the Administrative Trustees, but without the consent of the Holders of the Trust Preferred Securities of any Class, the Property Trustee or the Delaware Trustee, the Issuer Trust may merge with or into, consolidate, amalgamate, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to a trust organized as such under the laws of any state; provided that (i) such successor entity either (a) expressly assumes all of the obligations of the Issuer Trust with respect to the Trust Preferred Securities, or (b) substitutes for the Trust Preferred Securities other securities having substantially the same terms as the Trust Preferred Securities (the “Successor Securities”) so long as the Successor Securities have the same priority as the Trust Preferred Securities with respect to distributions and payments upon liquidation, redemption and otherwise, (ii) the Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or other organization on which the Trust Preferred Securities are listed, (iii) a trustee of such successor entity possessing the same powers and duties as the Property Trustee is appointed to
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hold the Trust Property, (iv) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Trust Preferred Securities of any Class (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization, (v) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the holders of the Trust Preferred Securities of any Class (including any Successor Securities) in any material respect, (vi) such successor entity has a purpose substantially identical to that of the Issuer Trust, (vii) prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, the Property Trustee has received an Opinion of Counsel to the effect that (a) such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Trust Preferred Securities of any Class (including any Successor Securities) in any material respect, and (b) following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease, neither the Issuer Trust nor such successor entity will be required to register as an “investment company” under the Investment Company Act, (viii) the Issuer Trust has received an Opinion of Counsel experienced in such matters that such merger, consolidation, amalgamation, conveyance, transfer or lease will not cause the Issuer Trust or the successor entity to be classified as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes and (ix) the Depositor or its permitted transferee owns all of the Common Securities of such successor entity and the Depositor guarantees the obligations of such successor entity under the Successor Securities at least to the extent provided by the Guarantee Agreement. The Issuer Trust may with the consent of Holders of all of the Trust Preferred Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it even if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would otherwise not be permitted under (viii) of the preceding sentence.
ARTICLE X
Qualifying Treasury Securities
     Section 10.1 Qualifying Treasury Securities.
     (a) The Administrative Trustees or any one of them shall, for each January 15, April 15, July 15 and October 15, commencing on July 15, 2006 and ending on the Stock Purchase Date or the earlier termination of the Stock Purchase Contracts, or if any such day is not a Business Day, the immediately succeeding Business Day (each, a “Reference Date”) identify:
     (i) the 13-week treasury bill that matures at least one and not more than six Business Days prior to that Reference Date, or
     (ii) if no 13-week treasury bill that matures at least one and not more than six Business Days prior to that Reference Date is or is scheduled to be outstanding on the immediately preceding Reference Date, the 26-week treasury bill that matures at least one and not more than six Business Days prior to that Reference Date, or
     (iii) if neither of such treasury bills is or is scheduled to be outstanding on the immediately preceding Reference Date, any other treasury security (which may be a zero coupon treasury security) that is outstanding on the immediately preceding Reference Date, is highly liquid and matures at least one Business Day prior to such Reference Date;
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provided that any treasury security identified pursuant to this clause (iii) shall be selected in a manner intended to minimize the cash value of the security selected.
     (b) The Administrative Trustees or any one of them shall use commercially reasonable efforts to identify the security meeting the foregoing criteria for each Reference Date promptly after the Department of the Treasury makes the schedule for upcoming auctions of treasury securities publicly available and shall, to the extent that a security previously identified with respect to any Reference Date is no longer expected to be outstanding on the immediately preceding Reference Date, identify another security meeting the foregoing criteria for such Reference Date. The security most recently identified by the Administrative Trustees or any one of them with respect to any Reference Date shall be the “Qualifying Treasury Security” with respect to the period from and including its date of issuance (or if later, the date of maturity of the Qualifying Treasury Security with respect to the immediately preceding Reference Date) to but excluding its date of maturity, and the Administrative Trustees’ identification of a security as a Qualifying Treasury Security for such period shall be final and binding for all purposes absent manifest error. The Administrative Trustees or any one of them shall give (or cause to be given) prompt written notice to the Company, the Collateral Agent, the Custodial Agent and the Property Trustee of each determination made pursuant to this Section 10.1.
ARTICLE XI
Other ITS Related Provisions
     Section 11.1 Tax Treatment.
     Each Holder of Trust Preferred Securities agrees, by acceptance of Trust Preferred Securities, and each Owner agrees, by acceptance of a beneficial interest in Trust Preferred Securities, to treat for all U.S. federal income tax purposes (i) the Trust as one or more grantor trusts and/or agency arrangements, (ii) itself as the owner of the Corresponding Assets for the related Class of Trust Preferred Securities, (iii) in the case of Normal ITS the fair market value of the $1,000 principal amount of Notes corresponding to one Normal ITS as $1,000 and the fair market value of 1/100th fractional interest in a Stock Purchase Contract corresponding to one Normal ITS as $0 at the time of initial purchase, (iv) the Notes as indebtedness of the Depositor, and (v) the stated interest on the Notes as ordinary interest income that is includible in the Holder’s or Owner’s gross income at the time the interest is paid or accrued in accordance with the Holder’s or Owner’s regular method of tax accounting, and otherwise to treat the Notes as described in the Prospectus.
ARTICLE XII
Miscellaneous Provisions
     Section 12.1 Limitation of Rights of Holders.
     Except as set forth in Section 9.2, the death, dissolution, bankruptcy or incapacity of any Person having an interest, beneficial or otherwise, in Trust Securities shall not operate to terminate this Trust Agreement nor dissolve, terminate or annul the Issuer Trust, nor entitle the legal representatives or heirs of such person or any Holder for such Person, to claim an accounting, take any action or bring any proceeding in any court for a partition or winding up of the arrangements contemplated hereby, nor otherwise affect the rights, obligations and liabilities of the parties hereto or any of them.
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     Section 12.2 Amendment.
     (a) This Trust Agreement may be amended from time to time by the Administrative Trustees and the Holders of all of the Common Securities, without the consent of any Holder of the Trust Preferred Securities, the Property Trustee or the Delaware Trustee (i) to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Issuer Trust will not be taxable as a corporation or classified as a partnership for U.S. federal income tax purposes at all times that any Trust Securities are outstanding, to ensure that the Issuer Trust will not be required to register as an “investment company” under the Investment Company Act or to ensure the treatment of the Trust Preferred Securities as Tier 1 regulatory capital under the prevailing Federal Reserve Board rules and regulations, (iii) to provide that Trust Preferred Securities Certificates may be executed by an Administrative Trustee by facsimile signature instead of manual signature, in which case such amendment(s) shall also provide for the appointment by the Depositor of an authentication agent, the fees and expenses of which will be paid by the Depositor, a form of authentication certificate, and provisions to the effect that Trust Preferred Securities Certificates that have been executed by an Administrative Trustee by facsimile signature shall not be entitled to any benefit under the Trust Agreement or be valid or obligatory for any purpose unless the certificate of authentication thereon has been executed by the authentication agent by manual signature, or (iv) to conform the terms of this Trust Agreement to the description of this Trust Agreement and the Trust Securities in the Prospectus; provided, however, that in the case of either clause (i) or (ii), such action shall not adversely affect in any material respect the interests of any Holder, the Property Trustee or the Delaware Trustee; provided, further, that in the case of clause (iv), the Depositor shall deliver to the Property Trustee an Officers’ Certificate and an Opinion of Counsel (who may be counsel to the Depositor or the Issuer Trust), in each case confirming that such amendment has the effect of conforming the terms of this Trust Agreement to the descriptions of this Trust Agreement and the Trust Securities in the Prospectus. Any such amendment shall become effective when notice is given to the Property Trustee and the Holders of the Trust Preferred Securities.
     (b) Except as provided in Section 12.2(c), any provision of this Trust Agreement may be amended by the Administrative Trustees and the Holders of all of the Common Securities and with (i) the consent of Holders of at least a Majority in Liquidation Amount of the Outstanding Trust Preferred Securities of each Affected Class, and (ii) receipt by the Issuer Trustees of an Opinion of Counsel experienced in such matters to the effect that such amendment or the exercise of any power granted to the Issuer Trustees or the Administrative Trustees in accordance with such amendment will not affect the Issuer Trust’s status as a grantor trust or cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes or affect the Issuer Trust’s exemption from status as an “investment company” under the Investment Company Act.
     (c) In addition to and notwithstanding any other provision in this Trust Agreement, without the consent of each affected Holder, this Trust Agreement may not be amended to (i) change the amount or timing of any Distribution on the Trust Securities or otherwise adversely affect the amount of any Distribution required to be made in respect of the Trust Securities as of a specified date, or (ii) restrict the right of a Holder to institute suit for the enforcement of any such payment on or after such date; and notwithstanding any other provision herein, without the unanimous consent of the Holders, this Section 12.2(c) may not be amended.
Trust Agreement

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     (d) Notwithstanding any other provisions of this Trust Agreement, no Issuer Trustee shall enter into or consent to any amendment to this Trust Agreement that would cause the Issuer Trust to fail or cease to qualify for the exemption from status as an “investment company” under the Investment Company Act or to be taxable as a corporation or to be classified as other than as one or more grantor trusts and/or agency arrangements for U.S. federal income tax purposes. In particular, no Issuer Trustee shall enter into or consent to any amendment to this Trust Agreement that would cause the Issuer Trust to be classified as an association or a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes.
     (e) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Depositor and the Administrative Trustees, this Trust Agreement may not be amended in a manner that imposes any additional obligation on the Depositor or the Administrative Trustees.
     (f) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Property Trustee, this Trust Agreement may not be amended in a manner that imposes any additional obligation on the Property Trustee or that adversely affects the Property Trustee.
     (g) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Delaware Trustee, this Trust Agreement may not be amended in a manner that imposes any additional obligation on the Delaware Trustee or that adversely affects the Delaware Trustee.
     (h) Notwithstanding anything in this Trust Agreement to the contrary, without the consent of the Securities Registrar and the Paying Agent, this Trust Agreement may not be amended in a manner that imposes any additional obligation on the Securities Registrar or the Paying Agent or that adversely affects the Securities Registrar or the Paying Agent.
     (i) In the event that any amendment to this Trust Agreement is made, the Administrative Trustees shall promptly provide to the Depositor, the Property Trustee and the Delaware Trustee a copy of such amendment.
     (j) Neither the Property Trustee nor the Delaware Trustee shall be required to enter into any amendment to this Trust Agreement that affects its own rights, duties or immunities under this Trust Agreement. The Property Trustee and the Delaware Trustee shall be entitled to receive an Opinion of Counsel and an Officers’ Certificate stating that any amendment to this Trust Agreement is in compliance with this Trust Agreement.
     Section 12.3 Separability Clause.
     In case any provision in this Trust Agreement or in the Trust Securities Certificates shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     Section 12.4 Governing Law.
     This Trust Agreement and the Trust Securities shall be governed by and construed in accordance with the laws of the State of Delaware (without regard to conflicts of laws principles).
Trust Agreement

-71-


 

     Section 12.5 Payments Due on Non-Business Day.
     If the date fixed for any payment on any Trust Security shall be a day that is not a Business Day, then such payment need not be made on such date but may be made on the next succeeding day that is a Business Day, with the same force and effect as though made on the date fixed for such payment, and no Distributions shall accumulate on such unpaid amount for the period after such date.
     Section 12.6 Successors and Assigns.
     All covenants and agreements in this Trust Agreement by each party hereto shall bind its successors and assigns, whether so expressed or not. Except in connection with a consolidation, merger or sale involving the Depositor that is permitted under Article VIII of the Base Indenture and pursuant to which the assignee agrees in writing to perform the Depositor’s obligations hereunder, the Depositor shall not assign its obligations hereunder.
     Section 12.7 Effect of Headings and Table of Contents.
     The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
     Section 12.8 Reports, Notices and Demands.
     Any report, notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon any Holder, the Depositor or the Administrative Trustees may be given or served in writing by deposit thereof, first-class postage prepaid, in the United States mail, hand delivery or facsimile transmission, in each case, addressed, (a) in the case of a Holder of Trust Preferred Securities, to such Holder as such Holder’s name and address may appear on the Securities Register and (b) in the case of the Holder of the Common Securities or the Depositor, to U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402, facsimile (612) 303-1338, Attention: Treasury Department, or to such other address as may be specified in a written notice by the Depositor to the Property Trustee. Such notice, demand or other communication to or upon a Holder shall be deemed to have been sufficiently given or made, for all purposes, upon hand delivery, mailing or transmission. Such notice, demand or other communication to or upon the Depositor or the Holder of the Common Securities shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Depositor or the Holder of the Common Securities, as the case may be. Any notice, demand or other communication that by any provision of this Trust Agreement is required or permitted to be given or served to or upon the Issuer Trust, the Property Trustee, the Delaware Trustee, the Administrative Trustees or the Issuer Trust shall be given in writing addressed to such Person as follows: (a) with respect to the Property Trustee, to Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Fax: 302-636-4140, Attention: Corporate Trust Administration; (b) with respect to the Delaware Trustee, to Wilmington Trust Company, Rodney Square North, 1100 North Market Street, Wilmington, Delaware 19890-1600, Fax: 302-636-4140, Attention: Corporate Trust Administration; (c) with respect to the Administrative Trustees, to them at c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402, facsimile (612) 303-1338; and (d) with respect to the Issuer Trust, to its principal office specified in Section 2.2, with a copy to the Property Trustee. Such notice, demand or other communication to or upon the Issuer Trust, the Property Trustee or the Administrative Trustees shall be deemed to have been sufficiently given or made only upon actual receipt of the writing by the Issuer Trust, the Property Trustee or such Administrative Trustee.
Trust Agreement

-72-


 

     Section 12.9 Agreement Not to Petition.
     Each of the Issuer Trustees and the Depositor agree for the benefit of the Holders that, until at least one year and one day after the Issuer Trust has been dissolved in accordance with Article IX, they shall not file, or join in the filing of, a petition against the Issuer Trust under any bankruptcy, insolvency, reorganization or other similar law (including the United States Bankruptcy Code) (collectively, “Bankruptcy Laws”) or otherwise join in the commencement of any proceeding against the Issuer Trust under any Bankruptcy Law. If the Depositor takes action in violation of this Section 12.9, the Property Trustee agrees, for the benefit of Holders, that at the expense of the Depositor, it shall file an answer with the bankruptcy court or otherwise properly contest the filing of such petition by the Depositor against the Issuer Trust or the commencement of such action and raise the defense that the Depositor has agreed in writing not to take such action and should be stopped and precluded therefrom and such other defenses, if any, as counsel for the Issuer Trustee or the Issuer Trust may assert.
     Section 12.10 Trust Indenture Act; Conflict with Trust Indenture Act.
     (a) If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Trust Agreement, the latter provision shall control. If any provision of this Trust Agreement modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Trust Agreement as so modified or to be excluded, as the case may be.
     (b) The Property Trustee shall be the only Issuer Trustee that is a trustee for the purposes of the Trust Indenture Act.
     (c) The application of the Trust Indenture Act to this Trust Agreement shall not affect the nature of the Trust Securities as equity securities representing undivided beneficial interests in the assets of the Issuer Trust.
     Section 12.11 Acceptance of Terms of Trust Agreement, Guarantee Agreement and Indenture.
     THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A HOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE HOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT, THE GUARANTEE AGREEMENT AND THE INDENTURE, AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AGREEMENT AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE ISSUER TRUST, SUCH HOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE ISSUER TRUST AND SUCH HOLDER AND SUCH OTHERS.
* * * *
     This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Trust Agreement

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     In Witness Whereof, the parties hereto have executed this Amended and Restated Trust Agreement as of the day and year first above written.
         
  U.S. BANCORP, as Depositor
 
 
  By:   /s/ Kenneth D. Nelson    
    Name:   Kenneth D. Nelson   
    Title:   Senior Vice President   
 
  WILMINGTON TRUST COMPANY, as
     Property Trustee
 
 
  By:   /s/ Patricia A. Evans    
    Name:   Patricia A. Evans   
    Title:   Vice President   
 
  WILMINGTON TRUST COMPANY, as
     Delaware Trustee
 
 
  By:   /s/ Patricia A. Evans    
    Name:   Patricia A. Evans   
    Title:   Vice President   
 
     
  /s/   David M. Moffett    
    David M. Moffett,   
         as Administrative Trustee   
 
     
  /s/   Daryl N. Bible    
    Daryl N. Bible,   
         as Administrative Trustee   
 
     
  /s/   Lee R. Mitau    
    Lee R. Mitau,   
         as Administrative Trustee   
 

 


 

EXHIBIT A
[ORIGINAL CERTIFICATE OF TRUST]
Trust Agreement

A-1


 

EXHIBIT B
[RESTATED CERTIFICATE OF TRUST]
Trust Agreement

B-1


 

EXHIBIT C
(FORM OF FACE OF CAPITAL ITS CERTIFICATE)
     {For inclusion in Global Certificates only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.}
     
No.                        Number of Capital ITS:                     
    CUSIP No.                     
USB Capital IX
Capital ITS
     This Capital ITS Certificate certifies that {          } is the registered Holder of the number of Capital ITS set forth above {for inclusion in Global Certificates only - or such other number of Capital ITS reflected in the Schedule of Increases and Decreases in the Global Certificate attached hereto}. Each Capital ITS represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The Capital ITS are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Capital ITS are set forth in, and this certificate and the Capital ITS represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17, 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Capital ITS as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Depositor and Wilmington Trust Company, as Guarantee Trustee, dated as of March 17, 2006 (the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
Trust Agreement

C-1


 

     Section 5.13(d) of the Trust Agreement provides for the procedures pursuant to which Holders of Capital ITS and Stripped ITS may exchange them for Normal ITS and Qualifying Treasury Securities and Section 5.14(f) of the Trust Agreement provides for the procedures pursuant to which Holders of Capital ITS may elect to dispose of Capital ITS in the event a Remarketing is Successful. The forms of Recombination Notice and Request and Notice of Contingent Disposition Election required to be delivered in connection therewith are printed on the reverse hereof.
     A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection at the offices of the Property Trustee.
     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereof.
     IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Capital ITS Certificate.
         
  USB CAPITAL IX, acting through one of its
      Administrative Trustees
 
 
  By:      
    Name:      
       
 
Date:
Trust Agreement

C-2


 

ABBREVIATIONS
     The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
                 
TEN COM:   as tenants in common
 
               
UNIF GIFT MIN ACT:
      Custodian       (cust)(minor) Under
 
               
    Uniform Gifts to Minors Act of        
         
 
               
TENANT:   as tenants by the entireties
 
               
JT TEN:   as joint tenants with right of survivorship and not as tenants in common
     Additional abbreviations may also be used though not in the above list.
     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D.
or other Identifying Number of Assignee)
(Please print or type name and address including Postal Zip Code of Assignee)
the within Capital ITS Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney                                         , to transfer said Capital ITS Certificates on the books of U.S. Bancorp, with full power of substitution in the premises.
     
Dated:
  Signature
 
  NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Capital ITS Certificates in every particular, without alteration or enlargement or any change whatsoever.
Trust Agreement

C-3


 

FORM OF RECOMBINATION NOTICE AND REQUEST
U.S. Bank National Association
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
     Re:      Stripped ITS and Capital ITS USB Capital IX
     The undersigned Holder hereby notifies you pursuant to Section 5.13(d) of the Amended and Restated Trust Agreement, dated as of March 17, 2006, of USB Capital IX (the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.03(a) of the Collateral Agreement that the Holder:
     (i) is transferring $                     Liquidation Amount of Stripped ITS and Capital ITS in connection with an Exchange of such Stripped ITS and Capital ITS for a Like Amount of Normal ITS and Qualifying Treasury Securities,
     (ii) hereby requests the Collateral Agent to release from the Pledge and deliver to the Holder Pledged Treasury Securities in a principal amount equal to such Liquidation Amount, and
     (iii) hereby requests the delivery to the Holder of such Normal ITS of a Like Amount.
     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Exchange.
     
Date:
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered
Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Trust Agreement

C-4


 

FORM OF NOTICE OF CONTINGENT DISPOSITION ELECTION
U.S. Bank National Association
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
     Re:     Normal ITS of USB Capital IX
     The undersigned Holder hereby notifies you pursuant to Section 5.14(f) of the Amended and Restated Trust Agreement, dated as of March 17, 2006, of USB Capital IX (the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 8.03 of the Collateral Agreement, that the Holder:
     (i) is transferring                      Capital ITS to the Securities Registrar, and
     (ii) hereby requests the payment to the Holder, if the upcoming Remarketing is Successful, of an amount in cash for each such Capital ITS equal to the proceeds of the sale of $1,000 principal amount of Notes, it being understood that if such Remarketing is not Successful, this Notice shall be disregarded.
     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Contingent Exchange Election.
     
Date:
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered
Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Trust Agreement

C-5


 

{TO BE ATTACHED TO GLOBAL CERTIFICATES}
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
             
Amount of increase in   Amount of decrease in   Number of Capital ITS    
Number of Capital ITS   Number of Capital ITS   evidenced by this Global   Signature of authorized
evidenced by this   evidenced by this Global   Certificate following such   signatory of Securities
Global Certificate   Certificate   decrease or increase   Registrar
             
Trust Agreement

C-6


 

EXHIBIT D
(FORM OF TRUST COMMON SECURITIES CERTIFICATE)
     TO THE FULLEST EXTENT PERMITTED BY LAW, OTHER THAN A TRANSFER IN CONNECTION WITH A CONSOLIDATION OR MERGER OF U.S. BANCORP INTO ANOTHER PERSON, OR ANY CONVEYANCE, TRANSFER OR LEASE BY U.S. BANCORP OF ITS PROPERTIES AND ASSETS SUBSTANTIALLY AS AN ENTIRETY TO ANY PERSON PURSUANT TO SECTION 8.1 OF THE JUNIOR SUBORDINATED INDENTURE, DATED AS OF APRIL 28, 2005, BETWEEN U.S. BANCORP AND DELAWARE TRUST COMPANY, NATIONAL ASSOCIATION, AS AMENDED AND SUPPLEMENTED BY THE FIRST SUPPLEMENTAL INDENTURE, DATED AS OF AUGUST 3, 2005, BETWEEN U.S. BANCORP AND DELAWARE TRUST COMPANY, NATIONAL ASSOCIATION, AS FURTHER AMENDED AND SUPPLEMENTED BY THE SECOND SUPPLEMENTAL INDENTURE, DATED AS OF DECEMBER 29, 2005, AMONG U.S. BANCORP, DELAWARE TRUST COMPANY, NATIONAL ASSOCIATION AND WILMINGTON TRUST COMPANY, AS FURTHER AMENDED AND SUPPLEMENTED BY THE THIRD SUPPLEMENTAL INDENTURE, DATED AS OF MARCH 17, 2006, BETWEEN U.S. BANCORP AND WILMINGTON TRUST COMPANY, AS TRUSTEE, AS AMENDED OR SUPPLEMENTED FROM TIME TO TIME, ANY ATTEMPTED TRANSFER OF THE COMMON TRUST SECURITIES EVIDENCED HEREBY OTHER THAN TO A DIRECT OR INDIRECT SUBSIDIARY OF U.S. BANCORP SHALL BE VOID.
USB Capital IX
1,000 Trust Common Securities
     This Trust Common Securities Certificate certifies that {          } is the registered Holder of 1,000 Common Trust Securities. Each Common Trust Security represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Common Trust Securities are set forth in, and this certificate and the Common Trust Securities represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17, 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Common Trust Securities as set forth therein. All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
     IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Common Trust Securities Certificate.
         
  USB CAPITAL IX, acting through one of its
Administrative Trustees
 
 
  By:      
    Name:      
       
 
Date:
Trust Agreement

D-1


 

EXHIBIT E
(FORM OF FACE OF NORMAL ITS CERTIFICATE)
     {For inclusion in Global Certificates only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.}
     
No.                        Number of Normal ITS:                     
    CUSIP No.                     
USB Capital IX
Normal ITS
     This Normal ITS Certificate certifies that {          } is the registered Holder of the number of Normal ITS set forth above {for inclusion in Global Certificates only - or such other number of Normal ITS reflected in the Schedule of Increases and Decreases in the Global Certificate attached hereto}. Each Normal ITS represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The Normal ITS are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Normal ITS are set forth in, and this certificate and the Normal ITS represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17, 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Normal ITS as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Depositor and Wilmington Trust Company, as Guarantee Trustee, dated as of March 17, 2006 (the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
     Section 5.13(b) of the Trust Agreement provides for the procedures pursuant to which Holders of Normal ITS may exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS and Section 5.14(d) of the Trust Agreement provides for the procedures pursuant to which Holders of Normal ITS may elect to exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS in the event a Remarketing is Successful. The forms of Stripping Notice and Request and
Trust Agreement

E-1


 

Notice of Contingent Exchange Election required to be delivered in connection therewith are printed on the reverse hereof.
     A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection at the offices of the Property Trustee.
     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereof.
     IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Normal ITS Certificate.
         
  USB CAPITAL IX, acting through one of its
      Administrative Trustees
 
 
  By:      
    Name:      
       
 
Date:
Trust Agreement

E-2


 

ABBREVIATIONS
     The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
                 
TEN COM:   as tenants in common
 
               
UNIF GIFT MIN ACT:
      Custodian       (cust)(minor) Under
 
               
    Uniform Gifts to Minors Act of        
         
 
               
TENANT:   as tenants by the entireties
 
               
JT TEN:   as joint tenants with right of survivorship and not as tenants in common
     Additional abbreviations may also be used though not in the above list.
     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D.
or other Identifying Number of Assignee)
(Please print or type name and address including Postal Zip Code of Assignee)
the within Normal ITS Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney                                         , to transfer said Normal ITS Certificates on the books of U.S. Bancorp, with full power of substitution in the premises.
     
Dated:
  Signature
 
  NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Normal ITS Certificates in every particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee:
Trust Agreement

E-3


 

FORM OF STRIPPING NOTICE AND REQUEST
U.S. Bank National Association,
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
     Re:     Normal ITS of USB Capital IX
     The undersigned Holder hereby notifies you pursuant to Section 5.13(b) of the Amended and Restated Trust Agreement, dated as of March 17, 2006, of USB Capital IX (the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.02 of the Collateral Agreement, that the Holder:
     (i) is depositing the appropriate Qualifying Treasury Securities with U.S. Bank National Association, as Collateral Agent, for deposit in the Collateral Account,
     (ii) is transferring the related Normal ITS to the Securities Registrar in connection with an Exchange of such Normal ITS and Qualifying Treasury Securities for a Like Amount of Stripped ITS and Capital ITS, and
     (iii) hereby requests the delivery to the Holder of such Stripped ITS and Capital ITS.
     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Exchange.
     
Date:
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Trust Agreement

E-4


 

FORM OF NOTICE OF CONTINGENT EXCHANGE ELECTION
U.S. Bank National Association,
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
     Re:      Normal ITS of USB Capital IX
     The undersigned Holder hereby notifies you pursuant to Section 5.14(d) of the Amended and Restated Trust Agreement, dated as of March 17, 2006, of USB Capital IX (the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 8.02 of the Collateral Agreement, that the Holder:
     (i) is depositing the appropriate Qualifying Treasury Securities with U.S. Bank National Association, as Collateral Agent, for deposit in the Collateral Account,
     (ii) is transferring the related Normal ITS to the Securities Registrar in connection with a Contingent Exchange Election of such Normal ITS and Qualifying Treasury Securities for a Like Amount of Stripped ITS and Capital ITS, and
     (iii) hereby requests the delivery to the Holder of such Stripped ITS and Capital ITS if the upcoming Remarketing is Successful, it being understood that if such Remarketing is not Successful, this Notice shall be disregarded and the Collateral Agent shall return such Qualifying Treasury Securities to the Holder promptly after the Remarketing.
     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Contingent Exchange Election.
     
Date:
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Trust Agreement

E-5


 

{TO BE ATTACHED TO GLOBAL CERTIFICATES}
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
             
Amount of increase in   Amount of decrease in   Number of Normal ITS    
Number of Normal ITS   Number of Normal ITS   evidenced by this Global   Signature of authorized
evidenced by this   evidenced by this Global   Certificate following such   signatory of Securities
Global Certificate   Certificate   decrease or increase   Registrar
             
Trust Agreement

E-6


 

EXHIBIT F
(FORM OF FACE OF STRIPPED ITS CERTIFICATE)
     {For inclusion in Global Certificates only — THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
     UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.}
     
No.                        Number of Stripped ITS:                     
    CUSIP No.                     
USB Capital IX
Stripped ITS
     This Stripped ITS Certificate certifies that {          } is the registered Holder of the number of Stripped ITS set forth above {for inclusion in Global Certificates only - or such other number of Stripped ITS reflected in the Schedule of Increases and Decreases in the Global Certificate attached hereto}. Each Stripped ITS represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The Stripped ITS are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Stripped ITS are set forth in, and this certificate and the Stripped ITS represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Stripped ITS as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Depositor and Wilmington Trust Company, as Guarantee Trustee, dated as of March 17, 2006 (the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
     Section 5.13(d) of the Trust Agreement provides for the procedures pursuant to which Holders of Capital ITS and Stripped ITS may exchange them for Normal ITS and Qualifying Treasury Securities.
Trust Agreement


 

The form of Recombination Notice required to be delivered in connection therewith is printed on the reverse hereof.
     A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection at the offices of the Property Trustee.
     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereof.
     IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Stripped ITS Certificate.
         
  USB CAPITAL IX, acting through one of its
      Administrative Trustees
 
 
  By:      
    Name:      
       
 
Date:
Trust Agreement

F-2


 

ABBREVIATIONS
     The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
                 
TEN COM:   as tenants in common
 
               
UNIF GIFT MIN ACT:
      Custodian       (cust)(minor) Under
 
               
    Uniform Gifts to Minors Act of        
         
 
               
TENANT:   as tenants by the entireties
 
               
JT TEN:   as joint tenants with right of survivorship and not as tenants in common
     FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D.
or other Identifying Number of Assignee)
(Please print or type name and address including Postal Zip Code of Assignee)
the within Stripped ITS Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney                                         , to transfer said Stripped ITS Certificates on the books of U.S. Bancorp, with full power of substitution in the premises.
     
Dated:
  Signature
 
  NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Stripped ITS Certificates in every particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee:
Trust Agreement

F-3


 

FORM OF RECOMBINATION NOTICE AND REQUEST
U.S. Bank National Association,
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
     Re:      Stripped ITS and Capital ITS of USB Capital IX
     The undersigned Holder hereby notifies you pursuant to Section 5.13(d) of the Amended and Restated Trust Agreement, dated as of March 17, 2006, of USB Capital IX (the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.03 of the Collateral Agreement, that the Holder:
     (i) is transferring $                     Liquidation Amount of Stripped ITS and Capital ITS in connection with an Exchange of such Stripped ITS and Capital ITS for a Like Amount of Normal ITS and Qualifying Treasury Securities,
     (ii) hereby requests the Collateral Agent to release from the Pledge and deliver to the Holder Pledged Treasury Securities in a principal amount equal to such Liquidation Amount, and
     (iii) hereby requests the delivery to the Holder of such Normal ITS of a Like Amount.
     All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Exchange.
     
Date:
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Trust Agreement

F-4


 

{TO BE ATTACHED TO GLOBAL CERTIFICATES}
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
             
Amount of increase in   Amount of decrease in   Number of Stripped ITS    
Number of Stripped ITS   Number of Stripped ITS   evidenced by this Global   Signature of authorized
evidenced by this   evidenced by this Global   Certificate following such   signatory of Securities
Global Certificate   Certificate   decrease or increase   Registrar
             
Trust Agreement

F-5

EX-4.11.1 5 c58008exv4w11w1.htm EX-4.11.1 exv4w11w1
Exhibit 4.11.1
 

Amendment No. 1 to Amended and Restated Trust Agreement
Dated as of [], 2010
 

 


 

     This Amendment No. 1 to Amended and Restated Trust Agreement, dated as of [], 2010 (this “Amendment”), is entered into among (i) U.S. Bancorp, a Delaware corporation (including any successors or assigns, the “Depositor”) and (ii) Andrew Cecere, an individual, Kenneth D. Nelson, an individual, and Lee R. Mitau, an individual, each of whose address is c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis Minnesota 55402 (each, an “Administrative Trustee,” and collectively, the “Administrative Trustees”) pursuant to Section 12.2(b) of the Amended and Restated Trust Agreement, dated March 17, 2006, of USB Capital IX.
Recital of the Depositor
     The Issuer Trustees have heretofore duly declared and established a statutory trust (the “Issuer Trust”), pursuant to the Delaware Statutory Trust Act by entering into that certain Trust Agreement, dated April 27, 2005 (the “Original Trust Agreement”), as amended and restated by that certain Amended and Restated Trust Agreement, dated March 17, 2006 (the Original Trust Agreement, as so amended and restated, the “Trust Agreement”), and by the execution and filing with the Secretary of State of the State of Delaware of a Restated Certificate of Trust, filed on January 18, 2006, attached to the Trust Agreement as Exhibit A (the “Certificate of Trust”).
     Pursuant to certain Notices of Removal of Administrative Trustees and Appointment of Replacements, each dated as of December 4, 2009, Daryl N. Bible and David M. Moffett (the “Removed Administrative Trustees”) were removed from the position of Administrative Trustees of the Trust and Kenneth D. Nelson and Andrew Cecere were appointed to succeed the Removed Administrative Trustees and such appointment was thereby accepted as of the date thereof.
     The Administrative Trustees, the Depositor (as the Holder of all of the Common Securities) and Holders representing a Majority in Liquidation Amount of the Outstanding Trust Preferred Securities of each Affected Class have affirmatively consented to this Amendment in accordance with Section 12.2(b) of the Trust Agreement and the Issuer Trustees have received and accepted the Opinion of Counsel contemplated thereby.
     NOW, THEREFORE, this Amendment witnesseth: For and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Trust Agreement is hereby amended as follows:
ARTICLE I
Defined Terms
     Section 1.1 Definitions. Capitalized terms used in this Amendment and not otherwise defined shall have the respective meanings assigned thereto in the Trust Agreement.
ARTICLE II
Amendments to the Trust Agreement
     Section 2.1 Amendment of Section 1.1 of the Trust Agreement. Section 1.1 of the Trust Agreement is hereby amended as follows:
     (a) The following definition of “Amended and Restated Stock Purchase Contract Agreement” is added:
     ““Amended and Restated Stock Purchase Contract Agreement” means the Amended and Restated Stock Purchase Contract Agreement, dated as of [ • ], 2010, between the Depositor
Amendment No. 1 to
Amended and Restated Trust Agreement

2


 

and the Property Trustee (acting on behalf of the Issuer Trust), as the same may be amended from time to time.”
     (b) The following definition of “Amended and Restated Collateral Agreement” is added:
     ““Amended and Restated Collateral Agreement” means the Amended and Restated Collateral Agreement, dated as of [ • ], 2010, among the Depositor, the Collateral Agent, the Custodial Agent, the Securities Intermediary, the Issuer Trust (acting through the Property Trustee) and the Securities Registrar for the ITS, as amended from time to time.”
     (c) The current definition of “Corresponding Assets” is deleted in its entirety and replaced with the following:
     ““Corresponding Assets” means, with respect to each $1,000 Liquidation Amount of Trust Securities:
     (a) in the case of Normal ITS and Common Securities, (i) from the Time of Delivery to but not including the Remarketing Settlement Date for a Successful Remarketing, $1,000 principal amount of Pledged Notes and a Pro Rata Interest in a Stock Purchase Contract, (ii) from and including the Remarketing Settlement Date for a Successful Remarketing to but not including the Stock Purchase Date, the U.S. Bank Deposit made with the net proceeds of each $1,000 principal amount of Pledged Notes sold in such Successful Remarketing on such Remarketing Settlement Date and a Pro Rata Interest in a Stock Purchase Contract, and (iii) from and including the Stock Purchase Date and thereafter for so long as Normal ITS are outstanding, 1/100th of a share of Preferred Stock;
     (b) in the case of Stripped ITS, (i) from the date of issuance for each Stripped ITS to but not including the Stock Purchase Date, $1,000 principal amount of Pledged Treasury Securities and a Pro Rata Interest in a Stock Purchase Contract, and (ii) from and including the Stock Purchase Date and thereafter for so long as Stripped ITS are outstanding, 1/100th of a share of Preferred Stock, subject to Section 4.8; and
     (c) in the case of Capital ITS, from the date of issuance for each Capital ITS, $1,000 principal amount of Notes, subject to Section 5.14.”
     (d) The current definition of “Deferred Contract Payment Amount” is deleted in its entirety and replaced with the following:
     ““Deferred Contract Payment Amount” means, at any time for each $100,000 stated amount of Stock Purchase Contracts, the amount of the Contract Payments accrued on such stated amount that has been deferred and not paid by reason of the Depositor’s exercise of its right to defer payment of Contract Payments pursuant to Section 2.7 of the Stock Purchase Contract Agreement (including a comparable amount in respect of any Contract Payments deferred in respect of Fractional Contracts (as defined in the Stock Purchase Contract Agreement)), together with interest accrued on such amount in accordance with the terms of the Stock Purchase Contract Agreement.”
     (e) The following definition of “Depositor Affiliated Owner” is added:
     ““Depositor Affiliated Owner” means the Depositor, its Affiliates or any other Person designated by the Depositor.”
Amendment No. 1 to
Amended and Restated Trust Agreement

3


 

     (f) The following definition of “Exchange Offer Prospectus” is added:
     ““Exchange Offer Prospectus” means the prospectus and consent solicitation statement, dated May [ • ], 2010 filed with the Commission as part of Depositor’s Registration Statement on Form S-4 on May [7], 2010, related to Depositor’s offer to exchange the Normal ITS for Depositor’s Depositary Shares, each representing a 1/100th interest in a Share of Preferred Stock.”
     (g) The current definition of “Indenture Supplement” is deleted in its entirety and replaced with the following:
     ““Indenture Supplement” means the Third Supplemental Indenture to the Base Indenture, dated as of May 17, 2006, between the Depositor and the Note Trustee, as supplemented by the Eighth Supplemental Indenture to the Base Indenture, dated as of [ • ], 2010, between the Depositor and the Note Trustee, as further amended or supplemented from time to time.”
     (h) The current definition of “Like Amount” is deleted in its entirety and replaced with the following:
     ““Like Amount” means:
     (a) with respect to a distribution of Notes to Holders of Normal ITS, Capital ITS or Common Securities in connection with a dissolution or liquidation of the Issuer Trust or a redemption in kind of Capital ITS pursuant to Section 4.2(c), Notes having a principal amount equal to the Liquidation Amount of the Trust Securities of the Holder to whom such Notes are distributed;
     (b) with respect to a distribution of Notes to a Third-Party Agent in connection with a retirement of Normal ITS pursuant to Section 4.9, Notes having a principal amount equal to the Liquidation Amount of the applicable Subject Normal ITS;
     (c) with respect to a distribution of Stock Purchase Contracts to a Third-Party Agent in connection with an early retirement of Normal ITS pursuant to Section 4.9, the number of Stock Purchase Contracts equal to the number of Subject Stock Purchase Contracts (as defined in the Stock Purchase Contract Agreement);
     (d) with respect to a distribution of Pledged Treasury Securities to Holders of Stripped ITS in connection with a dissolution or liquidation of the Issuer Trust, Pledged Treasury Securities having a principal amount equal to the Liquidation Amount of the Stripped ITS of the Holder to whom such Pledged Treasury Securities are distributed;
     (e) with respect to a distribution of Preferred Stock or fractional interests in Preferred Stock to Holders of Trust Securities in connection with a dissolution or liquidation of the Issuer Trust, Preferred Stock or a fractional interest in a share of Preferred Stock (which may be effected by the Issuer Trust through the creation of depositary shares) having a liquidation preference equal to the Liquidation Amount of the Trust Securities of the Holder to whom such shares of Preferred Stock or a fractional interest in a share of Preferred Stock (including through a depositary share) are distributed;
     (f) with respect to any distribution of Additional Amounts to Holders of Normal ITS, Capital ITS or Common Securities, Notes having a principal amount
Amendment No. 1 to
Amended and Restated Trust Agreement

4


 

equal to the Liquidation Amount of the Normal ITS, Capital ITS or Common Securities in respect of which such distribution is made;
     (g) with respect to a redemption of Preferred Stock, 1/100th of a share of Preferred Stock for each Normal ITS or Common Security;
     (h) with respect to an Exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS pursuant to Section 5.13(b), a number of Stripped ITS and a number of Capital ITS in each case equal to the number of Normal ITS included in such Exchange (e.g., if 1,000 Normal ITS are being Exchanged, the Holder will receive 1,000 Stripped ITS and 1,000 Capital ITS in accordance with and subject to Section 5.13);
     (i) with respect to an Exchange of Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities, a number of Normal ITS equal to the number of Stripped ITS and the number of Capital ITS being Exchanged (e.g., if 1,000 Stripped ITS and 1,000 Capital ITS are being Exchanged, the Holder will receive upon the Exchange 1,000 Normal ITS together with $1,000,000 principal amount of Qualifying Treasury Securities released from the Pledge, in accordance with and subject to Section 5.13(e));
     (j) with respect to Notes (including Pledged Notes as applicable) being deposited or delivered in connection with an Exchange, Notes having a principal amount equal to $1,000 for each Normal ITS involved in the Exchange;
     (k) with respect to Section 5.16(c), $1,000 principal amount of Notes for each $1,000 Liquidation Amount of Trust Preferred Securities of each Affected Class; and
     (l) with respect to Section 5.16(d), 1/100th of a Stock Purchase Contract with a stated amount of $100,000 for each $1,000 Liquidation Amount of Trust Preferred Securities of the Affected Classes (or a comparable interest in the case of a Fractional Contract).”
     (i) The current definition of “Notes” is deleted in its entirety and replaced with the following:
     ““Notes” means the $1,251,000,000 initial aggregate principal amount of the Depositor’s Remarketable Junior Subordinated Notes due 2042 issued pursuant to the Indenture, or such lesser aggregate principal amount as shall remain outstanding from time to time.”
     (j) The following definition of “Pro Rata Interest in a Stock Purchase Contract” is added:
     ““Pro Rata Interest in a Stock Purchase Contract” means, with respect to each $1,000 Liquidation Amount of Trust Preferred Securities, an interest in a Stock Purchase Contract representing the right to acquire a 1/100th interest in a share of Preferred Stock, together with such other rights, privileges, obligations and responsibilities as are associated with such Stock Purchase Contract (including the right to receive Contract Payments), in each case, on the terms and conditions set forth in such Stock Purchase Contract.”
     (k) The current definition of “Remarketing Date” is deleted in its entirety and replaced with the following definition of “Remarketing Period” and the term “Remarketing Period” shall replace “Remarketing Date” in every instance where it is used in the Trust Agreement, except for Section 5.14:
     ““Remarketing Period” has the meaning specified in the Indenture.”
Amendment No. 1 to
Amended and Restated Trust Agreement

5


 

     (l) The current definition of “Trust Property” is deleted in its entirety and replaced with the following:
     ““Trust Property” means (a) the Notes for so long as they are owned by the Issuer Trust in accordance with this Trust Agreement, (b) the Stock Purchase Contracts for so long as they are owned by the Issuer Trust in accordance with this Trust Agreement, (c) the Preferred Stock once acquired by the Issuer Trust pursuant to the Stock Purchase Contracts, (d) treasury securities (that are required to be Qualifying Treasury Securities when delivered) delivered to the Property Trustee (or the Collateral Agent) pursuant to Section 5.13 or Section 5.14, (e) the rights of the Issuer Trust under the Transaction Agreements, and (f) all proceeds and rights in respect of the foregoing and any other property and assets for the time being held or deemed to be held by the Issuer Trust or the Property Trustee on behalf of the Issuer Trust pursuant to the Trust Agreement.”
     (m) The following definition of “Third-Party Agent” is added:
     ““Third-Party Agent” has the meaning specified in Section 4.9.”
     (n) The following definition of “Subject Normal ITS” is added:
     ““Subject Normal ITS” has the meaning specified in Section 4.9.”
     (o) The following definition of “Depositor Affiliated Normal ITS” is added:
     ““Depositor Affiliated Normal ITS” has the meaning specified in Section 4.9.”
     (p) The following definition of “Retirement Date” is added:
     ““Retirement Date” has the meaning specified in Section 4.9.”
     (q) The following definition of “Retirement Notice” is added:
     ““Retirement Notice” has the meaning specified in Section 4.9.”
     Section 2.2 Amendment of Section 2.4(c) of the Trust Agreement. The current Section 2.4(c) of the Trust Agreement is deleted in its entirety and replaced with the following:
     “(c) In order to give effect to (i) Exchanges as provided in Section 5.13 or (ii) the retirement of Normal ITS as provided in Section 4.9, the Securities Registrar may endorse Book-Entry Trust Preferred Securities Certificates to reduce or increase the number of Normal ITS, Stripped ITS or Capital ITS evidenced by each such Book-Entry Trust Preferred Securities Certificate, provided that no such endorsement shall result in a Book-Entry Trust Preferred Securities Certificate evidencing a number of Normal ITS, Stripped ITS or Capital ITS exceeding the maximum number set forth on the face of such Certificate.”
     Section 2.3 Amendment of Section 2.7(a)(i) of the Trust Agreement. New clauses (L) and (M) are hereby added to Section 2.7(a)(i) of the Trust Agreement as follows:
     “(L) the taking of any action in connection with the retirement of Normal ITS in accordance with Section 4.9 of this Trust Agreement; and
     (M) causing the Issuer Trust to execute, deliver and perform the Amended and Restated Stock Purchase Contract Agreement, the Amended and Restated Collateral Agreement, and such other agreements as may be necessary or desirable in order to carry out the foregoing.”
Amendment No. 1 to
Amended and Restated Trust Agreement

6


 

     Section 2.4 Amendment of Section 2.7(a)(ii) of the Trust Agreement. New clauses (P) and (Q) are hereby added to Section 2.7(a)(ii) of the Trust Agreement as follows:
     “(P) the taking of any action in connection with the retirement of Normal ITS in accordance with Section 4.9 of this Trust Agreement; and
     (Q) causing the Issuer Trust to execute, deliver and perform the Amended and Restated Stock Purchase Contract Agreement, the Amended and Restated Collateral Agreement, and such other agreements as may be necessary or desirable in order to carry out the foregoing, to the extent that such amendments are authorized by Section 12.2(b), and such other agreements as may be necessary or desirable in order to carry out the foregoing.”
     Section 2.5 Amendment of Article IV of the Trust Agreement. A new Section 4.9 is hereby added to Article IV of the Trust Agreement as follows:
     “Section 4.9 Retirement of Certain Normal ITS.
     If at any time a Depositor Affiliated Owner acquires or becomes obligated to acquire Normal ITS pursuant to contract, a tender offer, an exchange offer, a negotiated transfer or any other transaction (such Normal ITS, the “Depositor Affiliated Normal ITS”), the Depositor shall have the right to submit a notice (the “Retirement Notice”) to the Property Trustee and the Securities Registrar electing to retire all or a portion of such Depositor Affiliated Normal ITS (the “Subject Normal ITS”) through the exchange of such Subject Normal ITS for a Like Amount of Notes and Stock Purchase Contracts. The Retirement Notice (i) shall specify the Liquidation Amount of the Subject Normal ITS with respect to which such election is being made and the date on which the proposed retirement is to occur (the “Retirement Date”) (which, without the consent of the Property Trustee and the Securities Registrar, shall not be less than 2 Business Days following the date that such Retirement Notice is so submitted), provided that such Retirement Date shall not be a date within the period beginning with the record date for a Distribution and ending with the applicable Distribution Date for such Distribution, (ii) shall be conditioned upon the applicable Depositor Affiliated Owner having delivered or caused to be delivered to the Securities Registrar or its designee the Subject Normal ITS by Noon, New York City time, on the Retirement Date through the Clearing Agency and (iii) shall designate the Third-Party Agent (as defined below). Upon the delivery of the Subject Normal ITS to the Securities Registrar or its designee on the Retirement Date, the Securities Registrar will provide written notice thereof to the Property Trustee and the Collateral Agent, and the Collateral Agent shall release Pledged Notes of a Like Amount with respect to such Subject Normal ITS from the Pledge and deliver them to the Property Trustee who shall distribute such Like Amount of Notes and Stock Purchase Contracts with respect to such Subject Normal ITS to the Depositor Affiliated Owner designated by the Depositor in the Retirement Notice (the “Third-Party Agent”) in the manner directed by the Depositor to the Property Trustee in writing. Following the exchange of Subject Normal ITS for such Like Amount of Notes and Stock Purchase Contracts, the Securities Registrar shall cancel the Subject Normal ITS and such Subject Normal ITS will no longer be Outstanding for any purpose and all rights of the Holder or its Affiliate(s) with respect to such Subject Normal ITS will cease, including, but not limited to, any rights with respect to accrued but unpaid Distributions.
     Notwithstanding anything else in this Trust Agreement to the contrary, in order to effectuate the exchanges contemplated by this Section 4.9, the Issuer Trust is hereby authorized to execute, deliver and perform, and the Depositor, the Securities Registrar, the Property Trustee or any Administrative Trustee on behalf of the Issuer Trust, acting singly or collectively, is hereby authorized to execute and deliver on behalf of the Issuer Trust, one or more exchange agreements, cancellation letters, and any and all other documents, agreements, or certificates contemplated by or related to the exchanges made pursuant to this Section 4.9, in each case without further vote or approval of any other Person.”
Amendment No. 1 to
Amended and Restated Trust Agreement

7


 

     Section 2.6 Amendment of Section 5.11(b) of the Trust Agreement. The current Section 5.11(b) of the Trust Agreement is deleted in its entirety and replaced with the following:
     “(b) Any Book-Entry Trust Preferred Securities Certificate shall represent such number of the Outstanding Trust Preferred Securities of the applicable Class as shall be specified therein and may provide that it shall represent the aggregate number of Outstanding Trust Preferred Securities of the applicable Class from time to time endorsed thereon and that the aggregate number of Outstanding Trust Preferred Securities of the applicable Class represented thereby may from time to time be reduced or increased, as appropriate, to reflect transfer, redemptions, exchange (including the Exchanges pursuant to Section 5.13) or cancellations (pursuant to Section 4.9). Any endorsement of a Book-Entry Trust Preferred Securities Certificate to reflect the number, or any increase or decrease in the number, of Outstanding Trust Preferred Securities of the applicable Class represented thereby shall be made by the Securities Registrar (i) in such a manner and upon instructions given by such Person or Persons as shall be specified in such Trust Preferred Securities of the applicable Class or in a Depositor order to be delivered to the Securities Registrar pursuant to Section 5.3 or (ii) otherwise in accordance with written instructions or such other written form or instructions as is customary for the Clearing Agency for such Trust Preferred Securities, from such Clearing Agency or its nominee on behalf of any Person having a beneficial interest in such Book-Entry Trust Preferred Securities Certificate. Subject to the provisions of Section 5.4, the Securities Registrar shall deliver and redeliver any Book-Entry Trust Preferred Securities Certificate in the manner and upon instructions given by the Person or Persons specified in such Book-Entry Trust Preferred Securities Certificate or in the applicable Depositor order (and an Administrative Trustee shall execute such Book-Entry Trust Preferred Securities Certificate as shall be necessary in order to give effect to the foregoing).”
     Section 2.7 Amendment of Section 5.14(d) of the Trust Agreement. The current Section 5.14(d) of the Trust Agreement is deleted in its entirety and replaced by the following:
     “(d) Subject to the conditions set forth in this Trust Agreement, a Holder of Normal ITS may make a Contingent Exchange Election by:
     (i) during the period that commences with the Collateral Agent’s and the Securities Registrar’s opening of normal business hours on the tenth Business Day immediately preceding the first day of a Remarketing Period and ending at 3:00 P.M., New York City time, on the second Business Day immediately preceding the first day of such Remarketing Period, transferring the Normal ITS that are the subject of such Contingent Exchange Election to the Securities Registrar, accompanied by a duly executed and completed “Notice of Contingent Exchange Election” in the form printed on the reverse side of the form of Normal ITS Certificate; and
     (ii) by not later than 3:00 P.M., New York City time, on the second Business Day immediately preceding the first day of a Remarketing Period, depositing with the Collateral Agent, the treasury security that is the Qualifying Treasury Security on the date of deposit, in the amount of $1,000 for each Normal ITS that is subject to the Contingent Exchange Election.”
     Section 2.8 Amendment of Section 5.14(f) of the Trust Agreement. The current Section 5.14(f) of the Trust Agreement is deleted in its entirety and replaced by the following:
     “(f) Subject to the conditions set forth in this Trust Agreement, a Holder of Capital ITS may make a Contingent Disposition Election by, during the period that commences with the Securities Registrar’s opening of normal business hours on the tenth Business Day immediately preceding the first day of a Remarketing Period and ending at 3:00 P.M., New York City time, on the second Business Day immediately preceding the first day of such Remarketing Period,
Amendment No. 1 to
Amended and Restated Trust Agreement

8


 

transferring the Capital ITS that are the subject of such Contingent Disposition Election to the Securities Registrar, accompanied by a duly completed “Notice of Contingent Disposition Election” in the form printed on the reverse side of the form of Capital ITS Certificate.”
     Section 2.9 Amendment of Section 5.18(a)(i) of the Trust Agreement. The following new Section 5.18(a)(i) of the Trust Agreement is hereby added and the existing Sections 5.18(a)(i) through (vi) shall be renumbered accordingly:
     “(i) the beginning and ending dates of the Remarketing Period and the applicable Remarketing Settlement Date and Stock Purchase Date in the event the Remarketing is Successful;”
     Section 2.10 Amendment of Section 6.1(c) of the Trust Agreement. The current Section 6.1(c) of the Trust Agreement is deleted in its entirety and replaced with the following:
     “(c) For so long as any Stock Purchase Contracts are outstanding, the Issuer Trustees may consent to any amendment to or modification of the Stock Purchase Contract Agreement or the Collateral Agreement, without having obtained the prior approval of the Holders of any Trust Preferred Securities to such amendment or modification, for the purposes of (i) evidencing the succession of another person to the Issuer Trust’s or the Property Trustee’s obligations thereunder, (ii) adding to the covenants therein for the benefit of the Issuer Trust or the Property Trustee or to surrender any of the Depositor’s rights or powers thereunder, (iii) evidencing and providing for the acceptance of appointment of a successor Collateral Agent, Custodial Agent or Securities Intermediary under the Collateral Agreement, (iv) curing any ambiguity, or correcting or supplementing any provisions that may be inconsistent, (v) conforming the terms of the Stock Purchase Contract Agreement or the Collateral Agreement, to the descriptions thereof in the Prospectus and the Exchange Offer Prospectus, (vi) retiring Trust Preferred Securities held by a Depositor Affiliated Owner or Trust Preferred Securities with respect to which a Depositor Affiliated Owner has an obligation to purchase, or (vii) making any other provisions with respect to such matters or questions, provided that such action pursuant to this clause (vii) shall not adversely affect the interest of the Holders of Trust Preferred Securities of any Class in any material respect. The Issuer Trustees may, with the consent of the Holders of not less than a Majority in Liquidation Amount of the Normal ITS and Stripped ITS then Outstanding, considered together as a single Class, agree to any other amendment to or modification of the Stock Purchase Contract Agreement or the Collateral Agreement, including such amendments or modifications set forth in the Amended and Restated Stock Purchase Contract Agreement and the Amended and Restated Collateral Agreement, except that, without obtaining the prior written consent of each Holder of Normal ITS and Capital ITS then Outstanding, the Issuer Trustees may not agree to any amendment or modification (not including the amendments and modifications set forth in the Amended and Restated Stock Purchase Contract Agreement and the Amended and Restated Collateral Agreement) that would (A) change any payment dates for Contract Payments, (B) change the amount or type of Pledged Notes or Pledged Treasury Securities required to be pledged under the Collateral Agreement, impair the right of the Property Trustee (on behalf of the Issuer Trust) to receive distributions on Pledged Notes or Pledged Treasury Securities or otherwise adversely affect the Issuer Trust’s rights in or to the Pledged Notes or Pledged Treasury Securities, (C) change the place or currency or reduce any Contract Payments, (D) impair the Property Trustee’s right (or any Holder’s right pursuant to Section 5.16(d)) to institute suit for the enforcement of the Stock Purchase Contracts or payment of any Contract Payments, or (E) reduce the number of shares of Preferred Stock purchasable under the Stock Purchase Contracts, increase the price to purchase Preferred Stock upon settlement of the Stock Purchase Contracts, change the Stock Purchase Date or otherwise adversely affect the Issuer Trust’s rights under the Stock Purchase Contracts.”
Amendment No. 1 to
Amended and Restated Trust Agreement

9


 

     Section 2.11 Amendment of Section 11.1 of the Trust Agreement. The current Section 11.1 of the Trust Agreement is deleted in its entirety and replaced with the following:
     “Each Holder of Trust Preferred Securities agrees, by acceptance of Trust Preferred Securities, and each Owner agrees, by acceptance of a beneficial interest in Trust Preferred Securities, to treat for all U.S. federal income tax purposes (i) the Issuer Trust as one or more grantor trusts or agency arrangements, (ii) itself as the owner of the Corresponding Assets for the related Class of Trust Preferred Securities, (iii) the Notes as indebtedness of the Depositor, (iv) the stated interest on the Notes as ordinary interest income that is includible in the Holder’s or Owner’s gross income at the time the interest is paid or accrued in accordance with the Holder’s or Owner’s regular method of tax accounting, and otherwise to treat the Notes as described in the Prospectus and, as applicable, the Exchange Offer Prospectus and (v) the acquisition by the Depositor of Subject Normal ITS, in connection with a retirement of Normal ITS (as described in Section 4.9), as consisting of the following transactions: (A) the distribution by the Issuer Trust to the Third-Party Agent, on behalf of the Holders of Subject Normal ITS, of a Like Amount of Notes and Stock Purchase Contracts in redemption of the Subject Normal ITS, (B) the retirement of such Like Amount of Notes for consideration equal to $1,000 per $1,000 principal amount of such Notes, (C) the termination or settlement of such Like Amount of Stock Purchase Contracts which shall thereafter no longer be treated as outstanding for any purpose.”
     Section 2.12 Amendment of Section 12.2(a) of the Trust Agreement. The current Section 12.2(a) of the Trust Agreement is deleted in its entirety and replaced with the following:
     “(a) This Trust Agreement may be amended from time to time by the Administrative Trustees and the Holders of all of the Common Securities, without the consent of any Holder of the Trust Preferred Securities, the Property Trustee or the Delaware Trustee (i) to cure any ambiguity, correct or supplement any provision herein that may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Trust Agreement, which shall not be inconsistent with the other provisions of this Trust Agreement, (ii) to modify, eliminate or add to any provisions of this Trust Agreement to such extent as shall be necessary to ensure that the Issuer Trust will not be taxable as a corporation or classified as a partnership for U.S. federal income tax purposes at all times that any Trust Securities are outstanding, to ensure that the Issuer Trust will not be required to register as an “investment company” under the Investment Company Act or to ensure the treatment of the Trust Preferred Securities as Tier 1 regulatory capital under the prevailing Federal Reserve Board rules and regulations, (iii) to provide that Trust Preferred Securities Certificates may be executed by an Administrative Trustee by facsimile signature instead of manual signature, in which case such amendment(s) shall also provide for the appointment by the Depositor of an authentication agent, the fees and expenses of which will be paid by the Depositor, a form of authentication certificate, and provisions to the effect that Trust Preferred Securities Certificates that have been executed by an Administrative Trustee by facsimile signature shall not be entitled to any benefit under the Trust Agreement or be valid or obligatory for any purpose unless the certificate of authentication thereon has been executed by the authentication agent by manual signature, (iv) to conform the terms of this Trust Agreement to the description of this Trust Agreement and the Trust Securities in the Prospectus and the Exchange Offer Prospectus, or (v) to provide for the retirement of Trust Preferred Securities held by a Depositor Affiliated Owner or Trust Preferred Securities with respect to which a Depositor Affiliated Owner has an obligation to purchase; provided, however, that in the case of either clause (i) or (ii), such action shall not adversely affect in any material respect the interests of any Holder, the Property Trustee or the Delaware Trustee; provided, further, that in the case of clause (iv), the Depositor shall deliver to the Property Trustee an Officers’ Certificate and an Opinion of Counsel (who may be counsel to the Depositor or the Issuer Trust), in each case confirming that such amendment has the effect of conforming the terms of this Trust Agreement to the descriptions of this Trust Agreement and the Trust Securities in the Prospectus. Any such
Amendment No. 1 to
Amended and Restated Trust Agreement

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amendment shall become effective when notice is given to the Property Trustee and the Holders of the Trust Preferred Securities.”
ARTICLE III
Miscellaneous
     Section 3.1 Separability Clause.
     In case any provision in the Trust Agreement, as amended by this Amendment, shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
     Section 3.2 Governing Law.
     This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware (without regard to conflicts of laws principles).
     Section 3.3 Successors and Assigns.
     All covenants and agreements in the Trust Agreement, as amended by this Amendment, by each party thereto shall bind its successors and assigns, whether so expressed or not.
     Section 3.4 Effect of Headings.
     The Article and Section headings herein are for convenience only and shall not affect the construction hereof.
     Section 3.5 Trust Indenture Act; Conflict with Trust Indenture Act.
     If any provision of the Trust Agreement, as amended by this Amendment, limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern the Trust Agreement, as amended by this Amendment, the latter provision shall control. If any provision of the Trust Agreement, as amended by this Amendment, modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to the Trust Agreement, as amended by this Amendment, as so modified or to be excluded, as the case may be.
* * * *
     This Amendment may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Amendment No. 1 to
Amended and Restated Trust Agreement

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     In Witness Whereof, this Amendment has been executed and is effective as of the day and year first above written.
         
    U.S. BANCORP, as Depositor
 
       
 
  By:    
 
       
 
      Name:
 
      Title:
 
       
 
       
 
       
 
      Kenneth D. Nelson
 
           as Administrative Trustee
 
       
 
       
 
       
 
      Andrew Cecere
 
           as Administrative Trustee
 
       
 
       
 
       
 
      Lee R. Mitau
 
           as Administrative Trustee
Amendment No. 1 to
Amended and Restated Trust Agreement

12

EX-4.12 6 c58008exv4w12.htm EX-4.12 exv4w12
Exhibit 4.12
 
Guarantee Agreement
by and between
U.S. BANCORP,
as Guarantor
and
WILMINGTON TRUST COMPANY,
as Guarantee Trustee
relating to
USB CAPITAL IX
Dated as of March 17, 2006
 

 


 

U.S. BANCORP
Certain Sections of this Guarantee Agreement relating to Sections 310 through 318, inclusive, of the Trust
Indenture Act of 1939:
     
Trust Indenture    
Act Section   Guarantee Section
§ 310(a)
  4.1(a)
(b)
  2.8, 4.1(c)
(c)
  Not applicable
§ 311(a)
  2.2(b)
(b)
  2.2(b)
§ 312(a)
  2.2(a)
(b)
  2.2(b)
§ 313
  2.3
§ 314(a)
  2.4
(b)
  Not applicable
(c)
  2.5
(d)
  Not applicable
(e)
  1.1, 2.4
(f)
  2.1, 3.2
§ 315(a)
  3.1(d)
(b)
  2.7
(c)
  3.1(c)
(d)
  3.1(d)
(e)
  Not applicable
§ 316(a)
  1.1, 2.6, 5.4
(b)
  5.3
(c)
  Not applicable
§ 317(a)
  Not applicable
(b)
  Not applicable
§ 318(a)
  2.1
(b)
  2.1
Note: This reconciliation and tie shall not, for any purpose be deemed to be part of the Guarantee Agreement.
Guarantee Agreement

 


 

Table of Contents
         
    Page
ARTICLE I
 
       
Definitions
 
       
Section 1.1 Definitions
    1  
 
       
ARTICLE II
 
       
Trust Indenture Act
 
       
Section 2.1 Trust Indenture Act; Application
    4  
Section 2.2 List of Holders
    5  
Section 2.3 Reports by the Guarantee Trustee
    5  
Section 2.4 Periodic Reports to the Guarantee Trustee
    5  
Section 2.5 Evidence of Compliance with Conditions Precedent
    5  
Section 2.6 Events of Default; Waiver
    5  
Section 2.7 Events of Default; Notice
    6  
Section 2.8 Conflicting Interests
    6  
 
       
ARTICLE III
 
       
Powers, Duties and Rights of the Guarantee Trustee
 
       
Section 3.1 Powers and Duties of the Guarantee Trustee
    6  
Section 3.2 Certain Rights of Guarantee Trustee
    7  
Section 3.3 Compensation; Indemnity; Fees
    9  
 
       
ARTICLE IV
 
       
Guarantee Trustee
 
       
Section 4.1 Guarantee Trustee; Eligibility
    9  
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee
    10  
 
       
ARTICLE V
 
       
Guarantee
 
       
Section 5.1 Guarantee
    11  
Section 5.2 Waiver of Notice and Demand
    11  
Section 5.3 Obligations Not Affected
    11  
Section 5.4 Rights of Holders
    12  
Section 5.5 Guarantee of Payment
    12  
Section 5.6 Subrogation
    12  
Section 5.7 Independent Obligations
    12  
 
       
Guarantee Agreement
 
       
-i-

 


 

         
    Page
 
       
ARTICLE VI
 
       
Covenants and Subordination
 
       
Section 6.1 Subordination
    13  
Section 6.2 Pari Passu Guarantees
    13  
 
       
ARTICLE VII
 
       
Termination
 
       
Section 7.1 Termination
    13  
ARTICLE VIII
 
       
Miscellaneous
 
       
Section 8.1 Successors and Assigns
    13  
Section 8.2 Amendments
    14  
Section 8.3 Notices
    14  
Section 8.4 Benefit
    15  
Section 8.5 Governing Law
    15  
 
       
Guarantee Agreement
 
       
-ii-

 


 

          Guarantee Agreement, dated as of March 17, 2006, between U.S. Bancorp, a Delaware corporation (the “Guarantor”), having its principal office at 800 Nicollet Mall, Minneapolis, Minnesota 55402, and Wilmington Trust Company, a Delaware banking corporation, as trustee (the “Guarantee Trustee”), for the benefit of the Holders from time to time of the Trust Preferred Securities of USB Capital IX, a Delaware statutory trust (the “Issuer Trust”).
Recitals of the Guarantor
          Pursuant to an Underwriting Agreement, dated as of March 17, 2006, among the Guarantor, the Issuer Trust and the underwriters named therein, the Issuer Trust is issuing $1,250,000,000 aggregate Liquidation Amount (as defined in the Trust Agreement) of Trust Preferred Securities having the terms set forth in an Amended and Restated Trust Agreement, of even date herewith (the “Trust Agreement”), among U.S. Bancorp, as Depositor, the Property Trustee, the Delaware Trustee and the Administrative Trustees (each as named therein) and the holders from time to time of the Trust Securities.
          The Trust Preferred Securities will be issued by the Issuer Trust, and the proceeds thereof, together with the proceeds from the issuance of the Issuer Trust’s Common Securities, will be used to purchase the Notes, which initially will be pledged by the Issuer Trust, acting through Wilmington Trust Company, as Property Trustee for the Issuer Trust (the “Property Trustee”), to U.S. Bank National Association, as collateral agent for the Guarantor, pursuant to the Collateral Agreement, dated as of the date hereof, among the Guarantor, U.S. Bank National Association, as Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar, and the Issuer Trust.
          As an incentive for the Holders to purchase the Trust Preferred Securities, the Guarantor desires irrevocably and unconditionally to agree, to the extent set forth herein, to pay to the Holders of the Trust Preferred Securities the Guarantee Payments and to make certain other payments on the terms and conditions set forth herein.
          Now, therefore, this Guarantee Agreement Witnesseth: For and in consideration of the purchase of Trust Preferred Securities by each Holder, which purchase the Guarantor hereby acknowledges shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the benefit of the Holders from time to time.
ARTICLE I
Definitions
Section 1.1 Definitions.
          For all purposes of this Guarantee Agreement, except as otherwise expressly provided or unless the context otherwise requires:
          (a) The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular.
          (b) All other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein.
          (c) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such
Guarantee Agreement

 


 

accounting principles that are generally accepted at the date or time of such computation; provided that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by the Guarantor.
          (d) The words “hereby,” “herein,” “hereof” and “hereunder” and other words of similar import refer to this Guarantee Agreement as a whole and not to any particular Article, Section or other subdivision.
          (e) Unless the context otherwise requires, any reference to an “Article”, a “Section” or another subdivision refers to an Article, a Section or another subdivisions, as the case may be, of this Guarantee Agreement.
          “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
          “Authorized Officer” of any Person means any executive officer of such Person or any person authorized by or pursuant to a resolution of the Board of Directors (or equivalent body) of such Person.
          “Base Indenture” has the meaning specified in the Trust Agreement.
          “Board of Directors” means the board of directors of the Guarantor or any committee of that board duly authorized to act hereunder.
          “Capital ITS” has the meaning specified in the Trust Agreement.
          “Class” has the meaning specified in the Trust Agreement.
          “Common Securities” has the meaning specified in the Trust Agreement.
          “Distributions” has the meaning specified in the Trust Agreement.
          “Event of Default” means (i) a default by the Guarantor in any of its payment obligations under this Guarantee Agreement or (ii) a default by the Guarantor in any other obligation hereunder that remains unremedied for 30 days.
          “Guarantee Agreement” means this Guarantee Agreement, as modified, amended or supplemented from time to time.
          “Guarantee Payments” means the following payments or distributions, without duplication, with respect to the Trust Preferred Securities of any Class, to the extent not paid or made by or on behalf of the Issuer Trust: (i) any accumulated and unpaid Distributions required to be paid on the Trust Preferred Securities of such Class, to the extent the Issuer Trust shall have funds on hand available therefor at such time; (ii) the Redemption Price with respect to any Trust Preferred Securities called for redemption by the Issuer Trust (other than in connection with the redemption of Capital ITS in exchange for Notes), to the extent the Issuer Trust shall have funds on hand available therefor at such time; and (iii) upon a voluntary or involuntary dissolution, winding-up or liquidation of the Issuer Trust, other than in
Guarantee Agreement

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connection with the distribution of a Like Amount of Corresponding Assets (as defined in the Trust Agreement) to the Holders of Trust Preferred Securities and Trust Common Securities, the lesser of (a) the Liquidation Distribution with respect to each Class of the Trust Preferred Securities, to the extent that the Issuer Trust shall have funds on hand available therefor at such time and (b) the amount of assets of the Issuer Trust has remaining available for distribution to Holders of the Trust Preferred Securities on liquidation of the Issuer Trust.
          “Guarantee Trustee” means Wilmington Trust Company, solely in its capacity as Guarantee Trustee and not in its individual capacity, until a Successor Guarantee Trustee has been appointed and has accepted such appointment pursuant to the terms of this Guarantee Agreement, and thereafter means each such Successor Guarantee Trustee.
          “Guarantor” has the meaning specified in the first paragraph of this Guarantee Agreement.
          “Holder” means any Holder (as defined in the Trust Agreement) of any Trust Preferred Securities; provided, however, that in determining whether the holders of the requisite percentage of Trust Preferred Securities of any Class or Classes have given any request, notice, consent or waiver hereunder, “Holder” shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee.
          “Indenture” has the meaning specified in the Trust Agreement.
          “Indenture Supplement” has the meaning specified in the Trust Agreement.
          “Indemnified Person” has the meaning specified in Section 3.3(c).
          “Issuer Trust” has the meaning specified in the first paragraph of this Guarantee Agreement.
          “Liquidation Distribution” has the meaning specified in the Trust Agreement.
          “List of Holders” has the meaning specified in Section 2.2(a).
          “Majority in Liquidation Amount” has the meaning specified in the Trust Agreement.
          “Normal ITS” has the meaning specified in the Trust Agreement.
          “Notes” has the meaning specified in the Trust Agreement.
          “Officers’ Certificate” means, with respect to any Person, a certificate signed by any two Authorized Officers of such person. Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Guarantee Agreement shall include:
     (i) a statement by each officer signing the Officers’ Certificate that such officer has read the covenant or condition and the definitions relating thereto;
     (ii) a brief statement of the nature and scope of the examination or investigation undertaken by such officer in rendering the Officers’ Certificate;
Guarantee Agreement

-3-


 

     (iii) a statement that such officer has made such examination or investigation as, in such officer’s opinion, is necessary to enable such officer to express an informed opinion as to whether or not such covenant or condition has been complied with; and
     (iv) a statement as to whether, in the opinion of such officer, such condition or covenant has been complied with.
          “Person” means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
          “Redemption Price” has the meaning specified in the Trust Agreement.
          “Responsible Officer” means, with respect to the Guarantee Trustee, any Senior Vice President, any Vice President, any Assistant Vice President, the Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer, any Assistant Trust Officer, any Financial Services Officer or any other officer of the Corporate Trust Department of the Guarantee Trustee and also means, with respect to a particular matter, any other officer to whom such matter is referred because of that officer’s knowledge of and familiarity with the particular subject.
          “Senior and Subordinated Debt” has the meaning specified in the Indenture.
          “Stock Purchase Date” has the meaning specified in the Stock Purchase Contract Agreement, dated as of the date hereof, between the Guarantor and the Issuer Trust.
          “Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the qualifications to act as Guarantee Trustee under Section 4.1.
          “Trust Agreement” means the Amended and Restated Trust Agreement of the Issuer Trust referred to in the recitals to this Guarantee Agreement, as modified, amended or supplemented from time to time.
          “Trust Indenture Act” means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbb), as amended and as in effect on the date of this Guarantee Agreement, except as provided in Section 9.5 of the Indenture.
          “Trust Preferred Securities” has the meaning specified in the Trust Agreement.
          “Vice President” when used with respect to the Guarantor means any duly appointed vice president, whether or not designated by a number or a word or words added before or after the title “vice president.”
ARTICLE II
Trust Indenture Act
Section 2.1 Trust Indenture Act; Application.
          Except as otherwise expressly provided herein, the Trust Indenture Act shall apply as a matter of contract to this Guarantee Agreement for purposes of interpretation, construction and defining the rights and obligations hereunder, and this Guarantee Agreement, the Guarantor and the Guarantee Trustee shall be deemed for all purposes hereof to be subject to and governed by the Trust Indenture Act
Guarantee Agreement

-4-


 

to the same extent as would be the case if this Guarantee Agreement were qualified under the Trust Indenture Act on the date hereof. Except as otherwise expressly provided herein, if and to the extent that any provision of this Guarantee Agreement limits, qualifies or conflicts with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2 List of Holders.
          (a) The Guarantor shall furnish or cause to be furnished to the Guarantee Trustee (a) semiannually, on or before May 15 of each year, a list, in such form as the Guarantee Trustee may reasonably require, of the names and addresses of the Holders (a “List of Holders”) as of a date not more than 15 days prior to the delivery thereof, and (b) at such other times as the Guarantee Trustee may request in writing, within 30 days after the receipt by the Guarantor of any such request, a List of Holders as of a date not more than 15 days prior to the time such list is furnished, in each case to the extent such information is in the possession or control of the Guarantor and has not otherwise been received by the Guarantee Trustee in its capacity as such. Notwithstanding the preceding sentence, the Guarantor shall not be obligated to provide such List of Holders at any time the List of Holders does not differ from the most recent List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders.
          (b) The Guarantee Trustee shall comply with the requirements of Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3 Reports by the Guarantee Trustee.
          Within 60 days after May 15 each year (commencing with the year of the first anniversary of the issuance of the Trust Preferred Securities), the Guarantee Trustee shall provide to the Holders such reports as are required by Section 313 of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313 of the Trust Indenture Act. If this Guarantee Agreement shall have been qualified under the Trust Indenture Act, the Guarantee Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act.
Section 2.4 Periodic Reports to the Guarantee Trustee.
          The Guarantor shall provide to the Guarantee Trustee and the Holders such documents, reports and information, if any, as required by Section 314 of the Trust Indenture Act and the compliance certificate required by Section 314 of the Trust Indenture Act, in the form, in the manner and at the times required by Section 314 of the Trust Indenture Act, provided that such documents, reports and information shall be required to be provided to the Securities and Exchange Commission only if this Guarantee Agreement shall have been qualified under the Trust Indenture Act.
Section 2.5 Evidence of Compliance with Conditions Precedent.
          The Guarantor shall provide to the Guarantee Trustee such evidence of compliance with such conditions precedent, if any, provided for in this Guarantee Agreement that relate to any of the matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer of the Guarantor pursuant to Section 314(c)(1) may be given in the form of an Officers’ Certificate.
Section 2.6 Events of Default; Waiver.
          The Holders of at least a Majority in Liquidation Amount of the Trust Preferred
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Securities may, by vote, on behalf of the Holders of all the Trust Preferred Securities, waive any past default or Event of Default and its consequences; provided that each Class of Trust Preferred Securities shall be entitled, in the case of any default or Event of Default that affects such Class differently from the other Class or Classes, to vote separately as a Class with respect thereto. Upon such waiver, any such default or Event of Default shall cease to exist, and any default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Guarantee Agreement, but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 2.7 Events of Default; Notice.
          (a) The Guarantee Trustee shall, within 90 days after the occurrence of an Event of Default known to the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders, notice of any such Event of Default known to the Guarantee Trustee, unless such Event of Default has been cured before the giving of such notice, provided that, except in the case of a default in the payment of a Guarantee Payment, the Guarantee Trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Guarantee Trustee in good faith determines that the withholding of such notice is in the interests of the Holders.
          (b) The Guarantee Trustee shall not be deemed to have knowledge of any Event of Default unless the Guarantee Trustee shall have received written notice, or a Responsible Officer charged with the administration of this Guarantee Agreement shall have obtained written notice, of such Event of Default.
Section 2.8 Conflicting Interests.
          The Trust Agreement and the Indenture shall be deemed to be specifically described in this Guarantee Agreement for the purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
Section 3.1 Powers and Duties of the Guarantee Trustee.
          (a) This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit of the Holders, and the Guarantee Trustee shall not transfer this Guarantee Agreement to any Person except to a Successor Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its appointment to act as Guarantee Trustee hereunder. The right, title and interest of the Guarantee Trustee, as such, hereunder shall automatically vest in any Successor Guarantee Trustee, upon acceptance by such Successor Guarantee Trustee of its appointment hereunder, and such vesting and cessation of title shall be effective whether or not conveyancing documents have been executed and delivered pursuant to the appointment of such Successor Guarantee Trustee.
          (b) If an Event of Default has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
          (c) The Guarantee Trustee, before the occurrence of any Event of Default and after the curing of all Events of Default that may have occurred, shall undertake to perform only such duties as are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1), and no implied
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covenants shall be read into this Guarantee Agreement against the Guarantee Trustee. If an Event of Default has occurred (that has not been cured or waived pursuant to Section 2.6), the Guarantee Trustee shall exercise such of the rights and powers vested in it by this Guarantee Agreement, and use the same degree of care and skill in its exercise thereof as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
          (d) No provision of this Guarantee Agreement shall be construed to relieve the Guarantee Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
     (i) prior to the occurrence of any Event of Default and after the curing or waiving of all such Events of Default that may have occurred:
     (A) the duties and obligations of the Guarantee Trustee shall be determined solely by the express provisions of this Guarantee Agreement (including pursuant to Section 2.1), and the Guarantee Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Guarantee Agreement (including pursuant to Section 2.1); and
     (B) in the absence of bad faith on the part of the Guarantee Trustee, the Guarantee Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Guarantee Trustee and conforming to the requirements of this Guarantee Agreement (but in the case of any such certificates or opinions that by any provision hereof or of the Trust Indenture Act are specifically required to be furnished to the Guarantee Trustee, the Guarantee Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Guarantee Agreement);
     (ii) the Guarantee Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts upon which such judgment was made;
     (iii) the Guarantee Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of not less than a Majority in Liquidation Amount of the relevant Class or Classes of Trust Preferred Securities relating to the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee, or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and
     (iv) subject to Section 3.1(b), no provision of this Guarantee Agreement shall require the Guarantee Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Guarantee Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Guarantee Agreement or adequate indemnity against such risk or liability is not reasonably assured to it.
Section 3.2 Certain Rights of Guarantee Trustee.
          (a) Subject to the provisions of Section 3.1:
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     (i) The Guarantee Trustee may rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed, sent or presented by the proper party or parties.
     (ii) Any direction or act of the Guarantor contemplated by this Guarantee Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise prescribed herein.
     (iii) Whenever, in the administration of this Guarantee Agreement, the Guarantee Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting to take any action hereunder, the Guarantee Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers’ Certificate which, upon receipt of such request from the Guarantee Trustee, shall be promptly delivered by the Guarantor.
     (iv) The Guarantee Trustee may consult with legal counsel, and the written advice or opinion of such legal counsel with respect to legal matters shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or opinion. Such legal counsel may be legal counsel to the Guarantor or any of its Affiliates and may be one of its employees. The Guarantee Trustee shall have the right at any time to seek instructions concerning the administration of this Guarantee Agreement from any court of competent jurisdiction.
     (v) The Guarantee Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Guarantee Agreement at the request or direction of any Holder unless such Holder shall have provided to the Guarantee Trustee such adequate security and indemnity satisfactory to it against the costs, expenses (including attorneys’ fees and expenses) and liabilities that might be incurred by it in complying with such request or direction, including such reasonable advances as may be requested by the Guarantee Trustee.
     (vi) The Guarantee Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Guarantee Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit at the expense of the Guarantor and shall incur no liability of any kind by reason of such inquiry or investigation.
     (vii) The Guarantee Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Guarantee Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed by it with due care hereunder.
     (viii) Whenever in the administration of this Guarantee Agreement the Guarantee Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Guarantee Trustee (A) may request instructions from the Holders, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions.
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          (b) No provision of this Guarantee Agreement shall be deemed to impose any duty or obligation on the Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Guarantee Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Guarantee Trustee shall be construed to be a duty to act in accordance with such power and authority.
Section 3.3 Compensation; Indemnity; Fees.
          The Guarantor agrees:
          (a) to pay to the Guarantee Trustee from time to time such reasonable compensation for all services rendered by it hereunder as may be agreed by the Guarantor and the Guarantee Trustee from time to time (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
          (b) except as otherwise expressly provided herein, to reimburse the Guarantee Trustee upon request for all reasonable expenses, disbursements and advances incurred or made by the Guarantee Trustee in accordance with any provision of this Guarantee Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined to have been caused by its own negligence or bad faith; and
          (c) to indemnify the Guarantee Trustee, any Affiliate of the Guarantee Trustee and any officer, director, shareholder, employee, representative or agent of the Guarantee Trustee (each, an “Indemnified Person”) for, and to hold each Indemnified Person harmless against, any loss, liability, claim, action, suit, cost, damage or expense of any kind or nature whatsoever incurred without negligence, willful misconduct or bad faith on the part of the Indemnified Person, arising out of or in connection with the acceptance or administration of this Guarantee Agreement, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
          The Guarantee Trustee will not claim or exact any lien or charge on any Guarantee Payments as a result of any amount due to it under this Guarantee Agreement.
          The provisions of this Section 3.3 shall survive the termination of this Guarantee Agreement or the resignation or removal of the Guarantee Trustee.
ARTICLE IV
Guarantee Trustee
Section 4.1 Guarantee Trustee; Eligibility.
          (a) There shall at all times be a Guarantee Trustee that shall:
     (i) not be an Affiliate of the Guarantor; and
     (ii) be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000, and shall be a corporation meeting the
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requirements of Section 310(a) of the Trust Indenture Act. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then, for the purposes of this Section 4.1 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
          (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in Section 4.2.
          (c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
Section 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.
          (a) Subject to Section 4.2(c), the Guarantee Trustee may be appointed or removed at any time by the action of the Holders of a Majority in Liquidation Amount of the Trust Preferred Securities delivered to the Guarantee Trustee and the Guarantor (i) for cause or (ii) if a Note Event of Default (as defined in the Trust Agreement) shall have occurred and be continuing at any time.
          (b) Subject to Section 4.2(c), the Guarantee Trustee may resign from office (without need for prior or subsequent accounting) by giving written notice thereof to the Holders and the Guarantor and by appointing a successor Guarantee Trustee. The Guarantee Trustee shall appoint a successor by requesting from at least three Persons meeting the requirements of Section 4.1(a) their expenses and charges to serve as the Guarantee Trustee, and selecting the Person who agrees to the lowest expenses and charges.
          (c) The Guarantee Trustee appointed hereunder shall hold office until a Successor Guarantee Trustee shall have been appointed and shall have accepted such appointment. No removal or resignation of a Guarantee Trustee shall be effective until a Successor Guarantee Trustee has been appointed and has accepted such appointment by written instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor and, in the case of any resignation, the resigning Guarantee Trustee.
          (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as provided in this Section 4.2 within 60 days after delivery to the Holders and the Guarantor of a notice of resignation, the resigning Guarantee Trustee may petition, at the expense of the Guarantor, any court of competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee Trustee.
          (e) If a resigning Guarantee Trustee shall fail to appoint a successor, or if a Guarantee Trustee shall be removed or become incapable of acting as Guarantee Trustee and a replacement shall not be appointed prior to such resignation or removal, or if a vacancy shall occur in the office of Guarantee Trustee for any cause, the Holders of the Trust Preferred Securities, by the action of the Holders of record of not less than 25% in aggregate Liquidation Amount (as defined in the Trust Agreement) of the Trust Preferred Securities then Outstanding (as defined in the Trust Agreement) delivered to such Guarantee Trustee, may appoint a Successor Guarantee Trustee or Trustees. If no successor Guarantee Trustee shall have been so appointed by the Holders of the Trust Preferred Securities and accepted appointment, any Holder, on behalf of such Holder and all others similarly situated, or any
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other Guarantee Trustee, may petition any court of competent jurisdiction for the appointment of a successor Guarantee Trustee.
ARTICLE V
Guarantee
Section 5.1 Guarantee.
          The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the Guarantee Payments (without duplication of amounts theretofore paid by or on behalf of the Issuer Trust), as and when due, regardless of any defense, right of set-off or counterclaim that the Issuer Trust may have or assert, except the defense of payment. The Guarantor’s obligation to make a Guarantee Payment may be satisfied by direct payment of the required amounts by the Guarantor to the Holders or by causing the Issuer Trust to pay such amounts to the Holders.
Section 5.2 Waiver of Notice and Demand.
          The Guarantor hereby waives notice of acceptance of this Guarantee Agreement and of any liability to which it applies or may apply, presentment, demand for payment, any right to require a proceeding first against the Guarantee Trustee, the Issuer Trust or any other Person before proceeding against the Guarantor, protest, notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.
Section 5.3 Obligations Not Affected.
          The obligations, covenants, agreements and duties of the Guarantor under this Guarantee Agreement shall in no way be affected or impaired by reason of the happening from time to time of any of the following:
          (a) the release or waiver, by operation of law or otherwise, of the performance or observance by the Issuer Trust of any express or implied agreement, covenant, term or condition relating to the Trust Preferred Securities to be performed or observed by the Issuer Trust;
          (b) the extension of time for the payment by the Issuer Trust of any portion of the Distributions (other than an extension of time for payment of Distributions that results from the extension of any interest payment period on the Notes as provided in the Indenture), Redemption Price, Liquidation Distribution or any other sums payable under the terms of the Trust Preferred Securities or the extension of time for the performance of any other obligation under, arising out of, or in connection with, the Trust Preferred Securities;
          (c) any failure, omission, delay or lack of diligence on the part of the Holders to enforce, assert or exercise any right, privilege, power or remedy conferred on the Holders pursuant to the terms of the Trust Preferred Securities, or any action on the part of the Issuer Trust granting indulgence or extension of any kind;
          (d) the voluntary or involuntary liquidation, dissolution, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition or readjustment of debt of, or other similar proceedings affecting, the Issuer Trust or any of the assets of the Issuer Trust;
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          (e) any invalidity of, or defect or deficiency in, the Trust Preferred Securities;
          (f) the settlement or compromise of any obligation guaranteed hereby or hereby incurred; or
          (g) any other circumstance whatsoever that might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment of the underlying obligation), it being the intent of this Section 5.3 that the obligations of the Guarantor hereunder shall be absolute and unconditional under any and all circumstances.
          There shall be no obligation of the Holders to give notice to, or obtain the consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4 Rights of Holders.
          The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will be deposited with the Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee Agreement on behalf of the Holders; (iii) the Holders of a Majority in Liquidation Amount of the Trust Preferred Securities of the affected Class or Classes have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Guarantee Trustee in respect of this Guarantee Agreement or exercising any trust or power conferred upon the Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may institute a legal proceeding directly against the Guarantor to enforce its rights under this Guarantee Agreement without first instituting a legal proceeding against the Guarantee Trustee, the Issuer Trust or any other Person.
Section 5.5 Guarantee of Payment.
          This Guarantee Agreement creates a guarantee of payment and not of collection. This Guarantee Agreement will not be discharged except by payment of the Guarantee Payments in full (without duplication of amounts theretofore paid by the Issuer Trust) or upon the distribution of Notes to Holders as provided in the Trust Agreement.
Section 5.6 Subrogation.
          The Guarantor shall be subrogated to all rights (if any) of the Holders against the Issuer Trust in respect of any amounts paid to the Holders by the Guarantor under this Guarantee Agreement; provided that the Guarantor shall not (except to the extent required by mandatory provisions of law) be entitled to enforce or exercise any rights that it may acquire by way of subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment under this Guarantee Agreement, if, at the time of any such payment, any amounts are due and unpaid under this Guarantee Agreement. If any amount shall be paid to the Guarantor in violation of the preceding sentence, the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to the Holders.
Section 5.7 Independent Obligations.
          The Guarantor acknowledges that its obligations hereunder are independent of the obligations of the Issuer Trust with respect to the Trust Preferred Securities and that the Guarantor shall be liable as principal and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee Agreement notwithstanding the occurrence of any event referred to in subsections (a) through (g), inclusive, of Section 5.3.
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ARTICLE VI
Covenants and Subordination
Section 6.1 Subordination.
          The obligations of the Guarantor under this Guarantee Agreement will constitute unsecured obligations of the Guarantor and will rank subordinate and junior in right of payment and upon liquidation to all Senior and Subordinated Debt of the Guarantor to the extent and in the manner set forth in the Indenture with respect to the Notes (as defined therein), and the provisions of Article XIII of the Base Indenture will apply, mutatis mutandis, to the obligations of the Guarantor hereunder. The obligations of the Guarantor hereunder do not constitute Senior and Subordinated Debt of the Guarantor.
Section 6.2 Pari Passu Guarantees.
          The obligations of the Guarantor under this Guarantee Agreement shall rank pari passu with the obligations of the Guarantor under (i) any similar guarantee agreements issued by the Guarantor on behalf of the holders of preferred or capital securities issued by any statutory trust the assets of which consist of debt securities that are pari passu to the Notes and the proceeds thereof, (ii) the Indenture and the Debt Securities (as defined therein) issued thereunder, (iii) any expense agreements entered into by the Guarantor in connection with the offering of preferred or capital securities by any statutory trust the assets of which consists of debt securities that are pari passu to the Notes and the proceeds thereof, and (iv) any other security, guarantee or other agreement or obligation that is expressly stated to rank pari passu with the obligations of the Guarantor under this Guarantee Agreement or with any obligation that ranks pari passu with the obligations of the Guarantor under this Guarantee Agreement.
ARTICLE VII
Termination
Section 7.1 Termination.
          This Guarantee Agreement shall terminate and be of no further force and effect upon (i) full payment of the Redemption Price of all Trust Preferred Securities or (ii) full payment of the amounts payable in accordance with Article IX of the Trust Agreement upon liquidation of the Issuer Trust. Notwithstanding the foregoing, this Guarantee Agreement will continue to be effective or will be reinstated, as the case may be, if at any time any Holder is required to repay any sums paid with respect to Trust Preferred Securities or this Guarantee Agreement. Section 3.3 shall survive any termination of this Guarantee Agreement.
ARTICLE VIII
Miscellaneous
Section 8.1 Successors and Assigns.
          All guarantees and agreements contained in this Guarantee Agreement shall bind the successors, assigns, receivers, trustees and representatives of the Guarantor whether so expressed or not and will be for the benefit of the Holders of the Trust Preferred Securities then outstanding. Except in connection with a consolidation, merger or sale involving the Guarantor that is permitted under Article VIII of the Indenture and pursuant to which the successor or assignee agrees in writing to perform
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the Guarantor’s obligations hereunder, the Guarantor shall not assign its obligations hereunder, and any purported assignment other than in accordance with this provision shall be void.
Section 8.2 Amendments.
          Except with respect to any changes that do not adversely affect the rights of the Holders in any material respect (in which case no consent of the Holders will be required), this Guarantee Agreement may only be amended with the prior approval of the Holders of not less than a Majority in Liquidation Amount of the outstanding Trust Preferred Securities. The holders of each Class of Trust Preferred Securities will also be entitled to vote separately as a class to the extent that any proposed amendment would not affect them in the same or substantially the same manner. The provisions of Article VI of the Trust Agreement concerning meetings of the Holders shall apply to the giving of such approval.
Section 8.3 Notices.
          Any notice, request or other communication required or permitted to be given hereunder shall be in writing, duly signed by the party giving such notice, and delivered, telecopied or mailed by first class mail as follows:
          (a) if given to the Guarantor, to the address or telecopy number set forth below or such other address or facsimile number as the Guarantor may give notice to the Guarantee Trustee and the Holders:
U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota 55402
Attention: Treasury Department
Facsimile: (612) 303-1338
          (b) if given to the Guarantee Trustee, to the address or telecopy number set forth below or such other address or facsimile number as the Guarantee Trustee may give notice to the Guarantor and Holders:
Wilmington Trust Company
Rodney Square North
1100 North Market Street
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
with a copy to:
USB Capital IX
c/o U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota 55402
Attention: Treasury Department
Facsimile: (612) 303-1338
          (c) if given to any Holder, at the address set forth on the books and records of the Issuer Trust.
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          All notices hereunder shall be deemed to have been given when received in person, telecopied with receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other document is refused delivery or cannot be delivered because of a changed address of which no notice was given, such notice or other document shall be deemed to have been delivered on the date of such refusal or inability to deliver.
Section 8.4 Benefit.
          This Guarantee Agreement is solely for the benefit of the Holders and is not separately transferable from the Trust Preferred Securities.
Section 8.5 Governing Law.
          This Guarantee Agreement shall be governed by and construed in accordance with the laws of the State of New York.
* * * *
          This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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          In Witness Whereof, the parties hereto have executed this Guarantee Agreement as of the day and year first above written.
         
  U.S. Bancorp,
as Guarantor
 
 
  By:   /s/ Kenneth D. Nelson    
    Name:   Kenneth D. Nelson   
    Title:   Senior Vice President   
 
  Wilmington Trust Company,
individually and as Guarantee Trustee
 
 
  By:   /s/ Patricia A. Evans    
    Name:   Patricia A. Evans   
    Title:   Vice President   
 
Guarantee Agreement

 

EX-4.14.1 7 c58008exv4w14w1.htm EX-4.14.1 exv4w14w1
Exhibit 4.14.1
     
 
Amended and Restated
Stock Purchase Contract Agreement
between
U.S. BANCORP
and
USB CAPITAL IX,
acting through Wilmington Trust Company,
as Property Trustee
Dated as of May [], 2010
     
 


 

TABLE OF CONTENTS
         
    Page  
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
 
       
Section 1.1 Definitions
    1  
Section 1.2 Form of Documents Delivered to Property Trustee
    6  
Section 1.3 Notices
    7  
Section 1.4 Effect of Headings and Table of Contents
    7  
Section 1.5 Successors and Assigns
    8  
Section 1.6 Separability Clause
    8  
Section 1.7 Benefits of Agreement
    8  
Section 1.8 Governing Law; Submission to Jurisdiction
    8  
Section 1.9 Legal Holidays
    8  
Section 1.10 No Waiver
    8  
Section 1.11 No Consent to Assumption
    9  
Section 1.12 No Recourse
    9  
 
       
ARTICLE II
THE STOCK PURCHASE CONTRACTS
 
       
Section 2.1 Issuance of Stock Purchase Contracts; Transferability; Assignment; Amendment
    9  
Section 2.2 Purchase of Preferred Stock; Payment of Purchase Price
    10  
Section 2.3 Issuance of Preferred Stock
    10  
Section 2.4 Termination Event; Notice
    11  
Section 2.5 Charges and Taxes
    11  
Section 2.6 Contract Payments
    11  
Section 2.7 Deferral of Contract Payments
    14  
Section 2.8 Cancellation of Stock Purchase Contracts
    16  
 
       
ARTICLE III
REMEDIES
 
       
Section 3.1 Unconditional Right of the Property Trustee to Receive Contract Payments and to Purchase Shares of Preferred Stock; Direct Action by Holders of Normal ITS or Stripped ITS
    17  
Section 3.2 Restoration of Rights and Remedies
    17  
Section 3.3 Rights and Remedies Cumulative
    17  
Section 3.4 Delay or Omission Not Waiver
    17  
Section 3.5 Waiver of Stay or Extension Laws
    18  
 
       
ARTICLE IV
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
 
       
Section 4.1 Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property Except under Certain Conditions
    18  
Section 4.2 Rights and Duties of Successor Corporation
    18  
Section 4.3 Officers’ Certificate and Opinion of Counsel Given to Property Trustee
    19  
Stock Purchase Contract Agreement


 

         
    Page  
ARTICLE V
COVENANTS
Section 5.1 Performance under Stock Purchase Contracts
    19  
Section 5.2 Company to Reserve Preferred Stock
    19  
Section 5.3 Covenants as to Preferred Stock
    19  
Section 5.4 Statements of Officers of the Company as to Default
    19  
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          Amended and Restated Stock Purchase Contract Agreement, dated as of May [], 2010, between U.S. Bancorp, a Delaware corporation (the “Company”), having its principal office at 800 Nicollet Mall, Minneapolis, Minnesota 55402, and USB Capital IX, a Delaware statutory trust (the “Trust”), acting through Wilmington Trust Company, a Delaware banking corporation, not in its individual capacity but solely as Property Trustee of the Trust (the “Property Trustee”).
Recitals of the Company
          The Company and the Trust entered into that certain Stock Purchase Contract Agreement, dated as of March 17, 2006 (the “Original Stock Purchase Contract Agreement”).
          All things necessary to make the Stock Purchase Contracts (as defined herein) the valid obligations of the Company, and to constitute the Original Stock Purchase Agreement and these presents a valid agreement of the Company, in accordance with their terms, have been done.
          The Company and the Trust have each duly authorized the execution and delivery of this Agreement to amend and restate the Original Stock Purchase Contract Agreement in its entirety.
          Now, therefore, this Amended and Restated Stock Purchase Contract Agreement witnesseth: For and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, it is mutually agreed as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
          For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
     (a) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
     (b) All accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and the term “generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles that are generally accepted in the United States at the date or time of such computation; provided that when two or more principles are so generally accepted, it shall mean that set of principles consistent with those in use by the Company.
     (c) The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
     (d) Unless the context otherwise requires, any references to an “Article,” a “Section” or another subdivision refers to an Article, a Section or another subdivision, as the case may be, of this Amended and Restated Stock Purchase Contract Agreement.
          “Administrative Trustee” has the meaning specified in the Trust Agreement.
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          “Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.
          “Bankruptcy Code” means the Bankruptcy Reform Act of 1978, Title 11 of the United States Code, as amended from time to time, or any other law of the United States that from time to time provides a uniform system of bankruptcy laws.
          “Base Indenture” means the Junior Subordinated Indenture, dated as of April 28, 2005, between the Company and Delaware Trust Company, National Association (the “Original Trustee”), as amended and supplemented by the First Supplemental Indenture, dated as of August 3, 2005, between the Company and the Original Trustee, as further amended and supplemented by the Second Supplemental Indenture, dated as of December 29, 2005, among the Company, the Original Trustee and the Trustee.
          “Board of Directors” means the board of directors of the Company or any committee of that board duly authorized to act hereunder.
          “Business Day” means any day other than a Saturday, Sunday or any other day on which banking institutions and trust companies in New York, New York, Minneapolis, Minnesota, or Wilmington, Delaware are permitted or required by law or executive order to close.
          “Code” means the Internal Revenue Code of 1986, as amended.
          “Collateral” has the meaning specified in the Collateral Agreement.
          “Collateral Agent” means U.S. Bank National Association, as Collateral Agent under the Collateral Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Collateral Agent” shall mean the Person who is then the Collateral Agent thereunder.
          “Collateral Agreement” means the Amended and Restated Collateral Agreement, dated as of the date hereof, among the Company, the Trust (acting through the Property Trustee), the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Securities Registrar, as amended from time to time.
          “Company” means the Person named as the “Company” in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provision of this Agreement, and thereafter “Company” shall mean such successor.
          “Contract Payments” means the payments payable by the Company on the Payment Dates in respect of each Stock Purchase Contract, at the rate of 0.65% per annum of the Stated Amount of each Stock Purchase Contract.
          “Custodial Agent” means U.S. Bank National Association, as Custodial Agent under the Collateral Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Custodial Agent” shall mean the Person who is then the Custodial Agent thereunder.
          “Deferred Contract Payments” has the meaning specified in Section 2.7(a).
          “Depositor Affiliated Owner Normal ITS” shall have the meaning specified in Section 2.8.
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          “Distribution Fractional Contract” has the meaning specified in Section 2.8.
          “Early Settlement Event” has the meaning specified in the Third Supplemental Indenture.
          “Eighth Supplemental Indenture” means the Eighth Supplemental Indenture between the Company and the Trustee, dated as of [the date hereof] to the Base Indenture , as the same may be amended or supplemented from time to time.
          “Failed Remarketing” has the meaning specified in the Third Supplemental Indenture.
          “Federal Reserve” means (i) the Board of Governors of the Federal Reserve System, as from time to time constituted, or if at any time after the execution of this Agreement the Federal Reserve is not existing and performing the duties now assigned to it, then the body or bodies performing such duties at such time, or the Federal Reserve Bank of Minneapolis, or (ii) any successor Federal Reserve Bank (or successor body performing such duties) having primary jurisdiction over the Company.
          “Fractional Contracts” has the meaning specified in Section 2.8.
          “Guarantee Agreement” means the Guarantee Agreement between the Company, as Guarantor and Wilmington Trust Company, as Guarantee Trustee named thereunder, dated as of March 17, 2006.
          “Holder” means a Holder (as such term is defined in the Trust Agreement) of Normal ITS or Stripped ITS.
          “Indenture” means the Base Indenture, the Third Supplemental Indenture and the Eighth Supplemental Indenture, taken together, as the same may be amended or supplemented from time to time with respect to the Notes.
          “ITS” has the meaning specified in the Trust Agreement.
          “Normal ITS” has the meaning specified in the Trust Agreement.
          “Notes” has the meaning specified in the Trust Agreement.
          “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors, a Vice Chairman of the Board of Directors, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company or the duly authorized designee of any of the foregoing, and delivered to the Property Trustee.
          “Opinion of Counsel” means a written opinion of legal counsel, who may be counsel to the Company (and who may be an employee of the Company), and who shall be reasonably acceptable to the Property Trustee. An Opinion of Counsel may rely on certificates as to matters of fact.
          “Paying Agent” has the meaning specified in the Trust Agreement.
          “Payment Date” means (i) each April 15 and October 15 of each year occurring prior to the Stock Purchase Date, commencing on October 15, 2006, and (ii) the Stock Purchase Date.
          “Person” means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company, trust, unincorporated
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organization or government or any agency or political subdivision thereof or any other entity of whatever nature.
          “Pledged Notes” has the meaning specified in the Collateral Agreement.
          “Pledged Securities” means the Pledged Notes and the Pledged Treasury Securities.
          “Pledged Treasury Securities” has the meaning specified in the Collateral Agreement.
          “Preferred Stock” means the Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share and $1.00 par value per share, of the Company.
          “Pro Rata Interest in a share of Preferred Stock” means, with respect to a Stock Purchase Contract which is not a Fractional Contract, one share of Preferred Stock and, with respect to a Fractional Contract, the applicable fractional interest in a share of Preferred Stock which may be acquired pursuant to such Fractional Contract, as determined in accordance with Section 2.8.
          “Proceeds” has the meaning specified in the Collateral Agreement.
          “Property Trustee” means Wilmington Trust Company, not in its individual capacity but solely as Property Trustee under the Trust Agreement until a successor Property Trustee shall have become such pursuant to the applicable provisions of the Trust Agreement, and thereafter “Property Trustee” shall mean the Person who is then Property Trustee thereunder.
          “Qualifying Treasury Securities” has the meaning specified in the Trust Agreement.
          “Remarketing” means a remarketing of Notes pursuant to Article III of the Third Supplemental Indenture.
          “Remarketing Agent” has the meaning specified in the Trust Agreement.
          “Remarketing Agreement” means the Remarketing Agreement to be entered into prior to the first Remarketing among the Company, the Property Trustee and the Remarketing Agent named in the Remarketing Agreement.
          “Remarketing Periods” mean the thirty Business Day period beginning on the thirty-third Business day preceding each of March 15, 2011, June 15, 2011, September 15, 2011, December 15, 2011 and March 15, 2012, until the settlement of a Successful Remarketing; provided that following the occurrence of an Early Settlement Event, “Remarketing Periods” shall mean such earlier dates as determined pursuant to Section 3.4 of the Third Supplemental Indenture.
          “Remarketing Settlement Date” means the third Business Day following a Successful Remarketing.
          “Retained Fractional Contract” has the meaning specified in Section 2.8.
          “Securities Act” means the Securities Act of 1933 and any successor statute thereto, in each case as amended from time to time, and the rules and regulations promulgated thereunder.
          “Securities Intermediary” means U.S. Bank National Association, as Securities Intermediary under the Collateral Agreement until a successor Securities Intermediary shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Securities
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Intermediary” shall mean such successor or any subsequent successor who is appointed pursuant to the Collateral Agreement.
          “Securities Registrar” means U.S. Bank National Association, as Securities Registrar under the Collateral Agreement until a successor Securities Registrar shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Securities Registrar” shall mean such successor or any subsequent successor who is appointed pursuant to the Collateral Agreement.
          “Senior and Subordinated Debt” has the meaning specified in the Base Indenture.
          “Stated Amount” means, with respect to any one Stock Purchase Contract that is not a Fractional Contract, $100,000, and with respect to any one Fractional Contract, the product of (x) the fractional interest in a share of Preferred Stock that may be acquired pursuant to such Fractional Contract multiplied by (y) $100,000.
          “Stock Purchase Contract” means a contract having a Stated Amount of $100,000 obligating (i) the Company to sell, and the Trust (acting through the Property Trustee) to purchase, a Pro Rata Interest in a share of Preferred Stock for an amount equal to such Stock Purchase Contract’s Stated Amount on the Stock Purchase Date and (ii) the Company to pay Contract Payments to the Trust, in each case on the terms and subject to the conditions set forth in Article II and Article V. Contemporaneously with the execution and delivery of the Original Stock Purchase Contract Agreement, the Company issued 12,510 Stock Purchase Contracts to the Trust. References in this Agreement to the Stock Purchase Contracts, whether individually or collectively, shall mean the Stock Purchase Contracts outstanding from time to time and shall exclude Stock Purchase Contracts that have been cancelled, retired, terminated, exercised or otherwise extinguished in accordance with the terms and conditions of this Agreement and the Trust Agreement. The Fractional Contracts shall constitute Stock Purchase Contracts to the extent of the Pro Rata Interest in a share of Preferred Stock represented thereby.
          “Stock Purchase Date” means the first to occur of any January 15, April 15, July 15 and October 15, or if any such day is not a Business Day, the next Business Day, after (i) the Remarketing Settlement Date or (ii) the final day of a Remarketing Period of a Failed Remarketing.
          “Stripped ITS” has the meaning specified in the Trust Agreement.
          “Subject Normal ITS” has the meaning specified in Section 2.8.
          “Subject Stock Purchase Contracts” has the meaning specified in Section 2.8
          “Subordinated Notes” means the subordinated notes of the Company that may be issued to the Property Trustee as provided in Section 2.7(c).
          “Successful” has the meaning specified in the Third Supplemental Indenture.
          “Termination Date” means the date, if any, on which a Termination Event occurs.
          “Termination Event” means the occurrence of any of the following events at any time on or prior to the Stock Purchase Date:
          (i) a judgment, decree or court order shall have been entered granting relief under the Bankruptcy Code, adjudicating the Company to be insolvent, or approving as properly filed a petition seeking reorganization or liquidation of the Company or any other similar applicable federal or state law
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and if such judgment, decree or order shall have been entered more than 60 days prior to the Stock Purchase Date, such decree or order shall have continued undischarged and unstayed for a period of 60 days;
          (ii) a judgment, decree or court order for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of the Company or of its property, or for the termination or liquidation of its affairs, shall have been entered and if such judgment, decree or order shall have been entered more than 60 days prior to the Stock Purchase Date, such judgment, decree or order shall have continued undischarged and unstayed for a period of 60 days; or
          (iii) the Company shall file a petition for relief under the Bankruptcy Code, or shall consent to the filing of a bankruptcy proceeding against it, or shall file a petition or answer or consent seeking reorganization or liquidation under the Bankruptcy Code or any other similar applicable federal or state law, or shall consent to the filing of any such petition, or shall consent to the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of it or of its property, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due.
          “Third Supplemental Indenture” means the Third Supplemental Indenture to the Base Indenture, dated as of March 17, 2006, between the Company and the Trustee, as amended or supplemented from time to time.
          “Trust” means the Person named as the “Trust” in the first paragraph of this Agreement.
          “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of March 17, 2006, as amended by Amendment No. 1 thereto, dated as of [ • ], 2010, among the Company, as depositor, the Property Trustee, the Delaware Trustee and the Administrative Trustees (each as named therein) and the several Holders (as defined therein), as the same may be further amended from time to time.
          “Trustee” means Wilmington Trust Company, a Delaware banking corporation, solely in its capacity as trustee pursuant to the Indenture and not in its individual capacity, or its successor in interest in such capacity, or any successor trustee appointed as provided in the Indenture.
          “U.S. Bank Deposit” means a deposit of cash or cash equivalent with U.S. Bank National Association to be made on the Remarketing Settlement Date and payable on the Stock Purchase Date, with interest accruing at the rate of 5.32% per annum from and including the date of deposit to but excluding the date of payment, calculated on the basis of the actual number of days elapsed and a year of 365 days, established in the name of the Collateral Agent pursuant to an agreement naming the Collateral Agent as customer and providing that the bank’s jurisdiction for purposes of Article 9 of the Uniform Commercial Code is New York.
          “Vice President” means any vice president, whether or not designated by a number or a word or words added before or after the title “Vice President.”
Section 1.2 Form of Documents Delivered to Property Trustee.
          (a) In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
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legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which its certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
          (b) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument.
Section 1.3 Notices.
          Any notice or communication is duly given if in writing and delivered in Person or mailed by first-class mail (registered or certified, return receipt requested), telecopier (with receipt confirmed) or overnight air courier guaranteeing next day delivery, to the others’ address; provided that notice shall be deemed given to the Property Trustee only upon receipt thereof:
          If to the Trust or the Property Trustee:
Wilmington Trust Company,
as Property Trustee of
USB Capital IX
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-1600
Attention: Corporate Trust Administration
Facsimile: (302) 636-4140
          If to the Company:
U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota 55402
Attention: Treasury Department
Facsimile: (612) 303-1338
          If to the Collateral Agent:
U.S. Bank National Association,
as Collateral Agent
100 Wall Street, 16th Floor
New York, New York 10005
Attention: Beverly A. Freeney
Facsimile: (212) 509-3384
Section 1.4 Effect of Headings and Table of Contents.
          The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
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Section 1.5 Successors and Assigns.
          All covenants and agreements in this Agreement by the Company and the Trust shall bind their respective successors and assigns, whether so expressed or not.
Section 1.6 Separability Clause.
          In case any provision in this Agreement shall be held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions hereof , and such provision, to the extent not so held to be invalid, illegal or unenforceable shall not in any way be affected or impaired thereby.
Section 1.7 Benefits of Agreement.
          Nothing contained in this Agreement, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and, to the extent provided hereby, the holders of Senior and Subordinated Debt and any Paying Agent, any benefits or any legal or equitable right, remedy or claim under this Agreement.
Section 1.8 Governing Law; Submission to Jurisdiction.
          This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Company and the Trust hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and the courts of the State of New York (in each case sitting in New York County) for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. The Company and the Trust irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
Section 1.9 Legal Holidays.
          (a) In any case where any Payment Date shall not be a Business Day (notwithstanding any other provision of this Agreement), Contract Payments or other distributions shall not be paid on such date, but Contract Payments or such other distributions shall be paid on the next succeeding Business Day with the same force and effect as if made on such Payment Date. No interest shall accrue or be payable by the Company or to the Property Trustee (on behalf of the Trust) for the period from and after any such Payment Date on such successive Business Day.
          (b) In any case where the Stock Purchase Date shall not be a Business Day (notwithstanding any other provision of this Agreement), the Stock Purchase Contracts shall not be performed and shall not be effected on such date, but the Stock Purchase Contracts shall be performed on the next succeeding Business Day with the same force and effect as if made on such Stock Purchase Date.
Section 1.10 No Waiver.
          No failure on the part of the Company, the Property Trustee, the Collateral Agent, the Securities Intermediary or any of their respective agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Company, the Property Trustee, the Collateral Agent, the Securities Intermediary or any of their respective agents of any right, power or remedy hereunder preclude
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any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.
Section 1.11 No Consent to Assumption.
          The Property Trustee for and on behalf of the Trust hereby expressly withholds any consent to the assumption, under Section 365 of the Bankruptcy Code or otherwise, of the Stock Purchase Contract by the Company or its trustee, receiver, liquidator or a Person performing similar functions in the event that the Company becomes the debtor under the Bankruptcy Code or subject to other similar state or Federal law providing for reorganization or liquidation.
Section 1.12 No Recourse.
          It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Property Trustee of the Trust, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, covenants, undertakings and agreements herein made on the part of the Trust is made and intended not as personal representations, warranties, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only the Trust, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement or any other related documents.
ARTICLE II
THE STOCK PURCHASE CONTRACTS
Section 2.1 Issuance of Stock Purchase Contracts; Transferability; Assignment; Amendment.
          (a) Contemporaneously with the execution and delivery of the Original Stock Purchase Contract Agreement, the Company issued 12,510 Stock Purchase Contracts having the terms and conditions set forth therein to the Trust (acting through the Property Trustee), which by execution and delivery of the Original Stock Purchase Contract Agreement the Company entered into and agreed to be bound by the Stock Purchase Contracts. No certificates were issued to evidence the Stock Purchase Contracts. The Company and the Trust hereby agree that the Stock Purchase Contracts shall be, and by the execution of this Agreement, without the necessity of any further action by any other Person, are amended as of the date hereof consistent with the terms and conditions applicable thereto as set forth in this Agreement.
          (b) To the fullest extent permitted by law, other than a transfer in connection with (i) a merger, consolidation, amalgamation or replacement of the Trust, (ii) any conveyance, transfer or lease by the Trust of its properties and assets substantially as an entirety to, and the assumption by, a successor entity pursuant to Section 9.5 of the Trust Agreement or (iii) a distribution of Subject Stock Purchase Contracts pursuant to Section 2.8, any attempted transfer of the Stock Purchase Contracts shall be void.
          (c) To the fullest extent permitted by law, any assignment by the Trust of its rights hereunder, other than an assignment of this Agreement in connection with a merger, consolidation,
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amalgamation or replacement of the Trust or any conveyance, transfer or lease by the Trust of its properties and assets substantially as an entirety to, and the assumption by, a successor entity pursuant to Section 9.5 of the Trust Agreement shall be void.
          (d) No amendment, modification or waiver of any provision of this Agreement shall be effective against either party hereto unless it is duly authorized by resolution of the Board of Directors of the Company and permitted under Section 6.1 of the Trust Agreement.
Section 2.2 Purchase of Preferred Stock; Payment of Purchase Price.
          (a) Each Stock Purchase Contract shall obligate the Trust (acting through the Property Trustee) to purchase, and the Company to sell, on the Stock Purchase Date at a price equal to the Stated Amount, a Pro Rata Interest in a share of Preferred Stock, unless a Termination Event shall have occurred.
          (b) If there has been a Successful Remarketing, the Trust will satisfy its obligations under Section 2.2(a) to pay the purchase price in respect of the Stock Purchase Contracts out of (i) the Proceeds at maturity of the Pledged Treasury Securities and (ii) to the extent of the excess of the purchase price over the amount of the Proceeds at maturity of the Pledged Treasury Securities, the U.S. Bank Deposit; provided that in the event that a receiver has been appointed for the purpose of liquidating or winding up the affairs of U.S. Bank National Association while U.S. Bank National Association is holding the U.S. Bank Deposit, in lieu of payment of the U.S. Bank Deposit the Trust shall cause the Collateral Agent to assign its rights in the U.S. Bank Deposit to the Company on the Stock Purchase Date to the extent of such amount required in full satisfaction of the Trust’s obligation to pay the U.S. Bank Deposit pursuant to this clause (ii).
          (c) If there is a Failed Remarketing, the Collateral Agent for the benefit of the Company reserves all of its rights as a secured party with respect to the Notes and, subject to applicable law and Section 2.2(d), may, among other things, (i) retain such Notes or their Proceeds in full satisfaction of the Trust’s obligations under the Stock Purchase Contracts or (ii) sell such Notes in one or more public or private sales as permitted by applicable law, in order to satisfy the Trust’s obligations under Section 2.2(a) to pay the purchase price in respect of the Stock Purchase Contracts to the extent not satisfied out of the Proceeds at maturity of the Pledged Treasury Securities.
          (d) The obligations of the Trust to pay the purchase price in respect of the Stock Purchase Contracts are non-recourse obligations and are payable solely out of the Proceeds of any Collateral pledged to secure the obligations of the Trust assignment of the U.S. Bank Deposit as set forth in this Section 2.2, and in no event will the Property Trustee be liable for any deficiency between the Proceeds of the disposition of Collateral and the purchase price in respect of the Stock Purchase Contracts.
          (e) The Company shall not be obligated to cause the issuance of any Pro Rata Interest in a share of Preferred Stock in respect of a Stock Purchase Contract or deliver any certificates therefor to the Property Trustee unless the Company shall have received payment for the share of Preferred Stock to be purchased thereunder in the manner herein set forth.
Section 2.3 Issuance of Preferred Stock.
          Unless a Termination Event shall have occurred, on the Stock Purchase Date upon receipt of the aggregate purchase price payable on all Stock Purchase Contracts, the Company shall cause to be issued and deposited with the Property Trustee (or its nominee), one or more certificates representing newly issued shares of Preferred Stock (or fractional interests therein) registered in the name of the Property Trustee (or its nominee) as custodian for the Trust to which the Trust is entitled hereunder.
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Section 2.4 Termination Event; Notice.
          (a) The Stock Purchase Contracts and all obligations and rights of the Company and the Trust (including the obligations and rights of the Property Trustee acting on behalf of the Trust) thereunder, including, without limitation, the right of the Trust to receive and the obligation of the Company to pay any Contract Payments (including any accrued and unpaid Contract Payments), and the rights and obligations of the Trust to purchase shares of Preferred Stock (or fractional interests therein), shall immediately and automatically terminate, without the necessity of any notice or action by the Trust, the Property Trustee or the Company, if a Termination Event shall have occurred on or prior to the Stock Purchase Date.
          (b) Upon the occurrence of a Termination Event, the Company shall promptly but in no event later than five Business Days thereafter give written notice to the Property Trustee and the Collateral Agent of such event.
Section 2.5 Charges and Taxes.
          The Company will pay all stock transfer and similar taxes attributable to the initial issuance and delivery of the shares of Preferred Stock (or fractional interests therein) pursuant to the Stock Purchase Contracts; provided that the Company shall not be required to pay any such tax or taxes that may be payable in respect of any issuance of a share of Preferred Stock (or fractional interests therein) in a name other than in the name of the Property Trustee or its nominee, as custodian for the Trust, and the Company shall not be required to issue or deliver such share certificates unless or until the Person or Persons requesting the issuance thereof shall have paid to the Company, in addition to any Stated Amount, the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid.
Section 2.6 Contract Payments.
          (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including March 17, 2006 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
          (b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior and Subordinated Debt to the extent and in the manner set forth in Sections 2.6(b) through (l).
          (c) In the event of (A) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding with respect to the Company, its creditors or its property, (B) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (C) any assignment by the Company for the benefit of creditors, or (D) any other marshalling of the assets of the Company:
     (i) all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or
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distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
     (ii) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior and Subordinated Debt in accordance with the priorities then existing among such holders until all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
     (iii) after payment in full of all sums owing with respect to Senior and Subordinated Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
     (iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior and Subordinated Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior and Subordinated Debt remaining unpaid, to the extent necessary to pay all such Senior and Subordinated Debt in full. In the event of the failure of the Property Trustee or the Trust to endorse or assign any such payment, distribution or security, each holder of Senior and Subordinated Debt is hereby irrevocably authorized to endorse or assign the same.
          (d) For purposes of Sections 2.6(b) through (l), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (l) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior and Subordinated Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior and Subordinated Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
          (e) Any failure by the Company to make any payment on or perform any other obligation under Senior and Subordinated Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (l) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may
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seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
          (f) Subject to the irrevocable payment in full of all Senior and Subordinated Debt, the Property Trustee on behalf of the Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior and Subordinated Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior and Subordinated Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior and Subordinated Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior and Subordinated Debt and the Property Trustee, no such payment or distribution made to the holders of Senior and Subordinated Debt by virtue of Sections 2.6(b) through (l) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior and Subordinated Debt, it being understood that the provisions of Sections 2.6(b) through (l) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior and Subordinated Debt, on the other hand.
          (g) Nothing contained in Sections 2.6(b) through (l) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior and Subordinated Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior and Subordinated Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (l), of the holders of Senior and Subordinated Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
          (h) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (l), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior and Subordinated Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (l).
          (i) The Property Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior and Subordinated Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior and Subordinated Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior and Subordinated Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (l), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior and Subordinated Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (l), and, if such evidence
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is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment.
          (j) Nothing contained in Sections 2.6(b) through (l) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (l).
          (k) Wilmington Trust Company, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior and Subordinated Debt at the time held by it, to the same extent as any other holder of Senior and Subordinated Debt and nothing in this Agreement shall deprive Wilmington Trust Company, or any successor Property Trustee of any of its rights as such holder.
          (l) No right of any present or future holder of any Senior and Subordinated Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
          (m) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
          (n) With respect to the holders of Senior and Subordinated Debt, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall be entitled by virtue of this Section 2.6 or otherwise; (iii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iv) the Property Trustee shall not be deemed to be a fiduciary as to such holders.
          (o) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior and Subordinated Debt and shall not be liable to any holders of Senior and Subordinated Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Section 2.7 Deferral of Contract Payments.
          (a) The Company shall have the right (which will be exercised if so directed by the Federal Reserve), at any time prior to the Stock Purchase Date, to defer the payment of any or all of the Contract Payments otherwise payable on any Payment Date, but only if the Company shall give the Property Trustee and the Administrative Trustees (with a copy to the Paying Agent) written notice of its election to defer each such deferred Contract Payment (specifying the amount to be deferred) at least ten Business Days prior to the earlier of (i) the next succeeding Payment Date or (ii) the date the Property Trustee and the Administrative Trustees are required to give notice of any record date or Payment Date with respect to any class of ITS to the New York Stock Exchange or other applicable self regulatory organization or to the Holders, but in any event not less than one Business Day prior to such record date. Any Contract Payments so deferred shall, to the extent permitted by law, accrue interest thereon at the rate originally
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applicable to the Notes (calculated on the same basis as originally applicable to the Notes), compounding on each succeeding Payment Date, until paid in full (such deferred installments of Contract Payments, if any, together with the additional Contract Payments, if any, accrued thereon, being referred to herein as the “Deferred Contract Payments”). Deferred Contract Payments, if any, shall be due on the next succeeding Payment Date except to the extent that payment is deferred pursuant to this Section 2.7, except as provided under Section 1.9. No Contract Payments may be deferred to a date that is after the Stock Purchase Date and no such deferral period may end other than on a Payment Date, except as provided under Section 1.9. If the Stock Purchase Contracts are terminated upon the occurrence of a Termination Event, the Trust’s right to receive Contract Payments, if any, and any Deferred Contract Payments, will terminate.
          (b) In the event that the Company elects to defer the payment of Contract Payments on the Stock Purchase Contracts until a Payment Date prior to the Stock Purchase Date, then all Deferred Contract Payments, if any, shall be payable to the Property Trustee on behalf of the Trust on such Payment Date, except as provided under Section 1.9.
          (c) In the event that the Company elects to defer the payment of Contract Payments on the Stock Purchase Contracts and such deferral is continuing on the Stock Purchase Date, the Property Trustee will receive on the Stock Purchase Date in lieu of a cash payment, in addition to the shares of Preferred Stock (or fractional interests therein) to be issued pursuant to Section 2.3, Subordinated Notes that will (i) have a principal amount equal to the aggregate amount of Deferred Contract Payments at the Stock Purchase Date, (ii) mature on April 15, 2014, (iii) bear interest at the rate per annum equal to the originally applicable rate of interest on the Notes (subject to deferral on the same basis as the Contract Payments; provided that the reference in clause (i)(2) of Section 2.7(d) to the beginning of the deferral period shall be deemed to refer to the beginning of the deferral period with respect to the Contract Payments), (iv) be subordinate and rank junior in right of payment to all of the Company’s Senior and Subordinated Debt on the same basis as the Contract Payments, and (v) be redeemable at the option of the Company at any time or from time to time prior to their stated maturity at a redemption price equal to the principal amount thereof plus any accrued and unpaid interest to the date of redemption; provided that the Company shall register such Subordinated Notes under the Securities Act prior to the delivery thereof to the Property Trustee unless they may be so delivered pursuant to an exemption or exception from registration thereunder.
          (d) In the event the Company exercises its option to defer the payment of Contract Payments then, until the earlier of (x) the Termination Date or (y) the date on which the Company shall have either paid all Deferred Contract Payments to the Property Trustee in cash or repaid all amounts outstanding on the Subordinated Notes, the Company shall not (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of its capital stock, including Preferred Stock; (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt security of the Company that ranks pari passu in all respects with or junior in interest to the Notes (except for partial payments of interest pursuant to the terms of the Notes) or (iii) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any subsidiary of the Company that by its terms ranks pari passu in all respects with or junior in interest to the Company’s guarantee related to the ITS other than, in each case:
     (i) any repurchase, redemption or other acquisition of shares of the Company’s capital stock in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (2) the satisfaction of the Company’s obligations pursuant to any contract entered into in the ordinary course prior to the beginning of any deferral period, (3) a dividend reinvestment or stockholder purchase plan, or (4) the issuance of the Company’s capital stock, or securities
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convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable event of default, default or extension period, as the case may be;
          (ii) any exchange, redemption or conversion of any class or series of the Company’s capital stock, or the capital stock of one of its subsidiaries, for any other class or series of the Company’s capital stock, or any class or series of the Company’s indebtedness for any class or series of its capital stock;
          (iii) any purchase of fractional interests of the Company’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the security being converted or exchanged;
          (iv) any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto;
          (v) payments in respect of the Company’s guarantee related to the ITS executed for the benefit of the Holders of the ITS; or
          (vi) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock.
Section 2.8 Cancellation of Stock Purchase Contracts.
          (a) If (i) a Depositor Affiliated Owner (as defined in the Trust Agreement) acquires or becomes obligated to acquire Normal ITS pursuant to contract, a tender offer, an exchange offer, a negotiated transfer or any other transaction (such Normal ITS, the “Depositor Affiliated Normal ITS”) and (ii) the Depositor delivers a Retirement Notice (as defined in the Trust Agreement) in accordance with Section 4.9 of the Trust Agreement with respect to all or a portion of the Depositor Affiliated Normal ITS (such Depositor Affiliated Normal ITS, the “Subject Normal ITS”), then each Stock Purchase Contract related to the Subject Normal ITS (the “Subject Stock Purchase Contracts”) shall be distributed to the Third-Party Agent (as defined in the Trust Agreement) in the manner set forth in Section 4.9 of the Trust Agreement. Following the distribution of such Subject Stock Purchase Contracts, each such Subject Stock Purchase Contract shall be cancelled and no longer be treated as outstanding for any purpose. The Subject Stock Purchase Contracts shall be a number of Stock Purchase Contracts equal to 12,500 multiplied by a fraction equal to the aggregate Liquidation Amount (as defined in the Trust Agreement) of the Subject Normal ITS divided by $1,250,000,000. In the event that the number of Subject Stock Purchase Contracts is not a whole number, then, with respect to such fractional Subject Stock Purchase Contract in excess of the next lowest whole number, the Trust and the Company shall be deemed to have cancelled one Stock Purchase Contract (which shall not be a Subject Stock Purchase Contract) and, in place thereof, the Company shall automatically issue (a) a Stock Purchase Contract representing the right to acquire a fractional interest in a share of Preferred Stock equal to the number of Subject Stock Purchase Contracts less the next lowest whole number (the “Distribution Fractional Contract”, which shall be a Subject Stock Purchase Contract) and (b) a Stock Purchase Contract representing the right to acquire a fractional interest in a share of Preferred Stock equal to one (1) minus the fractional interest in a share of Preferred Stock which may be acquired pursuant to the Distribution Fractional Contract (the “Retained Fractional Contracts”, and together with the Distribution Fractional Contract, the “Fractional Contracts”). The Distribution Fractional Contract shall be distributed to the Third-Party Agent in accordance with Section 4.9 of the Trust Agreement. The Retained Fractional Contract shall be retained by the Trust. Each Fractional Contract shall (i) represent the right to acquire a fractional interest in a share of Preferred Stock
Stock Purchase Contract Agreement

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as set forth in clauses (a) and (b) above, as applicable and (ii) have a Stated Amount that is equal to the fractional interest in a share of Preferred Stock that may be acquired pursuant to such Stock Purchase Contract multiplied by $100,000.
          (b) Upon any cancellation of Subject Stock Purchase Contracts in accordance with Section 2.8(a), all rights of the Trust with respect to such Subject Stock Purchase Contracts will cease, including but not limited to any right to receive any accrued Contract Payments or Deferred Contract Payments with respect thereto.
ARTICLE III
REMEDIES
Section 3.1 Unconditional Right of the Property Trustee to Receive Contract Payments and to Purchase Shares of Preferred Stock; Direct Action by Holders of Normal ITS or Stripped ITS.
          The Property Trustee on behalf of the Trust shall have the right, which is absolute and unconditional, (i) subject to Article II, to receive each Contract Payment with respect to each Stock Purchase Contract on the respective Payment Date therefor and (ii) except upon and following a Termination Event, to purchase a Pro Rata Interest in a share of Preferred Stock pursuant to such Stock Purchase Contract and, in each such case, to institute suit for the enforcement of any such right to receive Contract Payments and the right to purchase such Pro Rata Interest in a share of Preferred Stock, and such rights shall not be impaired without its consent. Up to and including the Stock Purchase Date, or the earlier termination of the Stock Purchase Contracts, any Holder shall have the right, upon default in the payment of any Contract Payment with respect to any Stock Purchase Contract on the respective Payment Date (subject to Article II), to institute a suit directly against the Company for enforcement of payment to such Holder of Contract Payments on Stock Purchase Contracts (or interests therein) having a Stated Amount equal to the aggregate Liquidation Amount (as defined in the Trust Agreement) of the ITS held by such Holder.
Section 3.2 Restoration of Rights and Remedies.
          If the Property Trustee has instituted any proceeding to enforce any right or remedy under this Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Property Trustee, then and in every such case, subject to any determination in such proceeding, the Company and the Property Trustee shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Property Trustee shall continue as though no such proceeding had been instituted.
Section 3.3 Rights and Remedies Cumulative.
          No right or remedy herein conferred upon or reserved to the Property Trustee is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 3.4 Delay or Omission Not Waiver.
          No delay or omission of the Property Trustee to exercise any right upon a default or remedy upon a default shall impair any such right or remedy or constitute a waiver of any such right. Every right
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and remedy given by this Article III or by law to the Property Trustee may be exercised from time to time, and as often as may be deemed expedient, by the Property Trustee.
Section 3.5 Waiver of Stay or Extension Laws.
          The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Agreement; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Property Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE IV
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 4.1 Covenant Not to Consolidate, Merge, Convey, Transfer or Lease Property Except under Certain Conditions.
          The Company covenants that it will not consolidate with, convert into, or merge with and into, any other entity or sell, assign, transfer, lease or convey all or substantially all of its properties and assets to any Person or entity, unless:
          (a) the successor shall be a corporation organized and existing under the laws of the United States of America or a State thereof or the District of Columbia and such corporation shall expressly assume all the obligations of the Company under the Stock Purchase Contracts, this Agreement, the Collateral Agreement, the Trust Agreement, the Indenture (including any supplement thereto), the Guarantee Agreement and the Remarketing Agreement by one or more supplemental agreements in form reasonably satisfactory to the Property Trustee, executed and delivered to the Property Trustee by such corporation;
          (b) such successor corporation shall not, immediately after such consolidation, conversion, merger, sale, assignment, transfer, lease or conveyance, be in default of payment obligations under the Stock Purchase Contracts, this Agreement, the Collateral Agreement, the Trust Agreement or the Remarketing Agreement or in material default in the performance of any other covenants under any of the foregoing agreements; and
          (c) the successor entity shall have reserved sufficient authorized and unissued shares of preferred stock having substantially the same terms and conditions as the Preferred Stock such that the Trust will receive, on the Stock Purchase Date, shares of preferred stock having substantially the same rights as the Preferred Stock that the Trust would have received had such merger, consolidation or other transaction not occurred.
Section 4.2 Rights and Duties of Successor Corporation.
          In case of any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance and upon any such assumption by a successor corporation in accordance with Section 4.1, such successor entity shall succeed to and be substituted for the Company with the same effect as if it had been named herein as the Company.
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Section 4.3 Officers’ Certificate and Opinion of Counsel Given to Property Trustee.
          The Property Trustee, subject to Section 4.1 and Section 4.2, shall receive an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance, and any such assumption, complies with the provisions of this Article IV and that all conditions precedent to the consummation of any such merger, consolidation, share exchange, sale, assignment, transfer, lease or conveyance have been met.
ARTICLE V
COVENANTS
Section 5.1 Performance under Stock Purchase Contracts.
          The Company covenants and agrees for the benefit of the Trust that it will duly and punctually perform its obligations under the Stock Purchase Contracts in accordance with the terms of the Stock Purchase Contracts and this Agreement.
Section 5.2 Company to Reserve Preferred Stock.
          The Company shall at all times prior to the Stock Purchase Date reserve and keep available, free from preemptive rights, out of its authorized but unissued Preferred Stock the full number of shares of Preferred Stock (or fractional interests therein) issuable against tender of payment for such shares of Preferred Stock (or fractional interests therein) in respect of all Stock Purchase Contracts.
Section 5.3 Covenants as to Preferred Stock.
          The Company covenants that all shares of Preferred Stock (or fractional interests therein) that may be issued against tender of payment for such shares of Preferred Stock (or fractional interests therein) in respect of any Stock Purchase Contract will, upon issuance, be duly authorized, validly issued, fully paid and nonassessable.
Section 5.4 Statements of Officers of the Company as to Default.
          The Company will deliver to the Property Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers’ Certificate, stating whether or not to the knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions hereof, and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
* * * *
          This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
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     In Witness Whereof, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
         
  U.S. Bancorp
 
 
  By:      
    Name:      
    Title:      
         
  USB Capital IX
 
 
  By:   Wilmington Trust Company, not in its individual capacity but solely as Property Trustee   
         
  By:      
    Name:      
    Title:      
 
Stock Purchase Contract Agreement

EX-5.1 8 c58008exv5w1.htm EX-5.1 exv5w1
Exhibit 5.1
[Squire, Sanders & Dempsey L.L.P. Letterhead]
May 10, 2010
U.S. Bancorp
800 Nicollet Mall
Minneapolis, MN 55402
Ladies and Gentlemen:
     We have acted as counsel to U.S. Bancorp, a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-4 (the “Registration Statement”) to which this opinion is attached, filed by the Company with the Securities and Exchange Commission. The Registration Statement relates to (i) the Company’s proposed exchange (the “Exchange Offer”) of up to 1,250,000 Depositary Shares (the “Depositary Shares”), each representing a 1/100th interest in a Share of Series A Non-Cumulative Perpetual Preferred Stock of the Company (the “Preferred Stock”), in exchange for any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal ITS issued by USB Capital IX (the “Normal ITS”), as described in the prospectus and consent solicitation statement contained therein (the “Prospectus and Consent Solicitation Statement”), and (ii) the registration of the Depositary Shares and the related Preferred Stock issued in connection with the Exchange Offer.
     We have examined such documents, including resolutions of the Board of Directors of the Company, and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the conformity to authentic originals of all documents submitted to us as copies and the effectiveness of the Registration Statement.
     We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinion, we have relied upon information obtained from officers of the Company and from public officials. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Registration Statement.

 


 

U.S. Bancorp
May 10, 2010
Page 2
     Based on the foregoing, we are of the opinion that,
     1. When the specific terms of the Preferred Stock have been specified in an amended certificate of designation duly adopted by the Board of Directors of the Company or a duly authorized committee thereof and duly filed with the Secretary of State of Delaware, such Preferred Stock will have been duly authorized by all requisite corporate action and, upon issuance, delivery and payment therefore in accordance with the terms of the Exchange Offer, will be validly issued, fully paid and nonassessable.
     2. When the specific terms of the Depositary Shares have been specified in a Deposit Agreement, the Depositary Shares established in such Deposit Agreement will have been duly authorized by all requisite corporate action and, upon issuance, delivery and payment therefore in accordance with the terms of the Exchange Offer, will be validly issued, fully paid and nonassessable.
          Our opinions expressed above are limited to the laws of the Delaware General Corporation Law and the federal laws of the United States of America.
          We hereby consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm under the caption “Legal Matters” contained in the Prospectus and Consent Solicitation Statement included therein. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Squire, Sanders & Dempsey L.L.P.

 

EX-8.1 9 c58008exv8w1.htm EX-8.1 exv8w1
Exhibit 8.1
[Squire, Sanders & Dempsey L.L.P. Letterhead]
May 10, 2010
U.S. Bancorp
800 Nicollet Mall
Minneapolis, MN 55402
Ladies and Gentlemen:
     We have acted as special tax counsel to U.S. Bancorp, a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement on Form S-4 (the “Registration Statement”) to which this opinion is attached, filed by the Company with the Securities and Exchange Commission. The Registration Statement relates to (i) the Company’s proposed exchange (the “Exchange Offer”) of up to 1,250,000 Depositary Shares (the “Depositary Shares”), each representing a 1/100th interest in a Share of Series A Non-Cumulative Perpetual Preferred Stock of the Company (the “Preferred Stock”), in exchange for any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal ITS issued by USB Capital IX (the “Normal ITS”), as described in the prospectus and consent solicitation statement contained therein (the “Prospectus and Consent Solicitation Statement”), and (ii) the registration of the Depositary Shares and the related Preferred Stock issued in connection with the Exchange Offer.
     We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of our opinions set forth below. In rendering our opinions set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures, the conformity to authentic originals of all documents submitted to us as copies and the continued effectiveness of the Registration Statement.
     We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to questions of fact material to our opinion, we have relied upon information obtained from officers of the Company and from public officials. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Registration Statement.
     Subject to the qualifications, limitations and assumptions set forth herein and in the Prospectus and Consent Solicitation Statement included in the Registration Statement, we hereby confirm our

 


 

U.S. Bancorp
May 10, 2010
Page 2
opinion set forth in the Prospectus and Consent Solicitation Statement under the caption “Material U.S. Federal Income Tax Consequences.” All such statements are based upon current law, which is subject to change, possibly with retroactive effect. Further, there can be no assurance that the Internal Revenue Service or a court will not take a contrary position.
     Our opinions expressed above are limited to the federal tax laws of the United States of America. We hereby consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ Squire, Sanders & Dempsey L.L.P.

 

EX-10.1.1 10 c58008exv10w1w1.htm EX-10.1.1 exv10w1w1
Exhibit 10.1.1
 
Amended and Restated
Collateral Agreement
among
U.S. BANCORP,
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent, Custodial Agent,
Securities Intermediary and Securities Registrar
and
USB CAPITAL IX,
acting through Wilmington Trust Company,
as Property Trustee
Dated as of [], 2010
 

 


 

Table of Contents
         
    Page  
ARTICLE I
Definitions
 
       
Section 1.01 Definitions
    2  
 
       
ARTICLE II
Pledge
 
       
Section 2.01 Pledge
    7  
Section 2.02 Control
    8  
Section 2.03 Termination
    8  
Section 2.04 Release for Subject Normal ITS
    8  
 
       
ARTICLE III
Control
 
       
Section 3.01 Establishment of Collateral Account
    8  
Section 3.02 Treatment as Financial Assets
    9  
Section 3.03 Sole Control by Collateral Agent
    9  
Section 3.04 Securities Intermediary’s Location
    9  
Section 3.05 No Other Claims
    9  
Section 3.06 Investment and Release
    10  
Section 3.07 No Other Agreements
    10  
Section 3.08 Powers Coupled with an Interest
    10  
Section 3.09 Waiver of Lien; Waiver of Set-off
    10  
 
       
ARTICLE IV
Custody
 
       
Section 4.01 Appointment
    10  
Section 4.02 Custody
    10  
Section 4.03 Termination of Custody Account
    11  
Section 4.04 Waiver of Lien; Waiver of Set-off
    11  
 
       
ARTICLE V
Distributions on Collateral and Custody Notes
 
       
Section 5.01 Interest on Notes
    11  
Section 5.02 Payments Following Termination Event
    11  
Section 5.03 Payments Prior to or on Stock Purchase Date
    12  
Section 5.04 Payments to Property Trustee
    12  
Section 5.05 Assets Not Properly Released
    13  
Collateral Agreement

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    Page  
ARTICLE VI
Initial Deposit; Exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS; Reinvestment of Proceeds of Pledged Treasury Securities
 
       
Section 6.01 Initial Deposit of Notes
    13  
Section 6.02 Exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS
    13  
Section 6.03 Exchange of Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities
    14  
Section 6.04 Termination Event
    15  
Section 6.05 Reinvestment of Proceeds of Pledged Treasury Securities
    16  
Section 6.06 Application of Proceeds in Settlement of Stock Purchase Contracts
    17  
 
       
ARTICLE VII
Voting Rights –– Notes
 
       
Section 7.01 Voting Rights
    17  
 
       
ARTICLE VIII
Rights and Remedies
 
       
Section 8.01 Rights and Remedies of the Collateral Agent
    18  
Section 8.02 Remarketing; Contingent Exchange Elections by Holder of Normal ITS
    18  
Section 8.03 Contingent Disposition Election by Holder of Capital ITS
    20  
 
       
ARTICLE IX
Representations and Warranties; Covenants
 
       
Section 9.01 Representations and Warranties
    21  
Section 9.02 Covenants
    21  
 
       
ARTICLE X
The Collateral Agent, The Custodial Agent, The Securities Intermediary and The Securities Registrar
 
       
Section 10.01 Appointment, Powers and Immunities
    21  
Section 10.02 Instructions of the Company
    23  
Section 10.03 Reliance by Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar
    23  
Section 10.04 Certain Rights
    24  
Section 10.05 Merger, Conversion, Consolidation or Succession to Business
    25  
Section 10.06 Rights in Other Capacities
    25  
Section 10.07 Non-reliance on Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar
    26  
Section 10.08 Compensation and Indemnity
    26  
Section 10.09 Failure to Act
    27  
Section 10.10 Resignation of Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar
    27  
Section 10.11 Right to Appoint Agent or Advisor
    29  
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    Page  
Section 10.12 Survival
    29  
Section 10.13 Exculpation
    29  
Section 10.14 Statements and Confirmations
    29  
Section 10.15 Tax Allocations
    29  
 
       

ARTICLE XI
Amendment
 
       
Section 11.01 Amendment
    30  
Section 11.02 Execution of Amendments
    30  
 
       
ARTICLE XII
Miscellaneous
 
       
Section 12.01 No Waiver
    30  
Section 12.02 Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury
    31  
Section 12.03 Notices
    31  
Section 12.04 Successors and Assigns
    31  
Section 12.05 Severability
    31  
Section 12.06 Expenses, Etc
    32  
Section 12.07 Security Interest Absolute
    32  
Section 12.08 Notice of Termination Event
    33  
Section 12.09 Incorporation by Reference
    33  
Section 12.10 No Recourse
    33  
Section 12.11 Amendment and Restatement
    33  
EXHIBITS
Exhibit A – Form of Normal ITS Certificate
Exhibit B – Form of Stripped ITS Certificate
Exhibit C – Form of Capital ITS Certificate
SCHEDULES
Schedule I – Reference Dealers
Schedule II – Contact Persons for Confirmation
Collateral Agreement

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          Amended and Restated Collateral Agreement, dated as of [ • ], 2010, among U.S. Bancorp, a Delaware corporation (the “Company”), U.S. Bank National Association, a national banking association organized under the laws of the United States (“USBNA”), as collateral agent (in such capacity, the “Collateral Agent”), as Custodial Agent (in such capacity, the “Custodial Agent”), as securities intermediary (as defined in Section 8-102(a)(14) of the UCC) with respect to the Collateral Account (in such capacity, the “Securities Intermediary”), and as securities registrar with respect to the Trust Preferred Securities (in such capacity, the “Securities Registrar”), and USB Capital IX, a Delaware statutory trust (the “Trust”), acting through Wilmington Trust Company, not in its individual capacity but solely as Property Trustee on behalf of the Trust (in such capacity, the “Property Trustee”).
Recitals
          The Company, USBNA (in its capacities as Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar), and the Trust (acting through the Property Trustee) are parties to that certain Collateral Agreement dated as of March 17, 2006 (the “Original Collateral Agreement”).
          The Company and the Trust (acting through the Property Trustee) are parties to the Amended and Restated Stock Purchase Contract Agreement, dated as of the date hereof (as it may be further amended, modified and supplemented and in effect from time to time, the “Stock Purchase Contract Agreement”), pursuant to which the Company has issued certain stock purchase contracts (each, a “Stock Purchase Contract”) to the Trust.
          Each Stock Purchase Contract requires the Company to issue and sell, and the Property Trustee (on behalf of the Trust) to purchase, on the Stock Purchase Date (as defined in the Stock Purchase Contract Agreement), for an amount (the “Purchase Price”) equal to such Stock Purchase Contract’s Stated Amount (as defined in the Stock Purchase Contract Agreement), the Pro Rata Interest (as defined in the Stock Purchase Contract Agreement) in one share of the Company’s Series A Non Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share (the “Preferred Stock”).
          Pursuant to the Trust Agreement (as hereinafter defined), the Stock Purchase Contract Agreement and the Stock Purchase Contracts, the Trust (acting through the Property Trustee), the Company and USBNA (in its capacities as Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar) are entering into this Agreement in order to amend in certain respects, and to restate in its entirety as so amended, the Original Collateral Agreement (as so amended and restated, this “Agreement”), all things necessary to make this Agreement a valid agreement of the Company, in accordance with its terms, having been done, and all conditions precedent to the execution and delivery hereof having been satisfied.
          Now, therefore, this Amended and Restated Collateral Agreement witnesseth: For and in consideration of the agreements and obligations set forth herein and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary, the Securities Registrar and the Trust mutually agree as follows:
Collateral Agreement

 


 

ARTICLE I
Definitions
     Section 1.01 Definitions.
          For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:
     (a) The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular, and nouns and pronouns of the masculine gender include the feminine and neuter genders.
     (b) The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision and references to any Article, Section or other subdivision are references to an Article, Section or other subdivision of this Agreement.
     (c) The following terms that are defined in the UCC shall have the meanings set forth therein: “certificated security,” “control,” “financial asset,” “financing statement,” “entitlement order,” “securities account,” “security entitlement” and “funds-transfer system”.
     (d) Capitalized terms used herein and not defined herein have the meanings assigned to them in the Trust Agreement.
     (e) The following terms have the meanings given to them in this Section 1.01(e):
          “Address for Notices” has the meaning specified in Section 12.03.
          “Agreement” means this Amended and Restated Collateral Agreement, as the same may be further amended, modified or supplemented from time to time.
          “Cash” means any coin or currency of the United States as at the time shall be legal tender for payment of public and private debts.
          “Collateral” means the collective reference to:
     (1) the Collateral Account and all investment property and other financial assets from time to time credited to the Collateral Account and all security entitlements with respect thereto, including, without limitation, (A) the Notes, other than any Notes that are Transferred to (x) the Custodial Agent in accordance with Section 6.02 upon the Exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS pursuant to Sections 5.13(a)(i), (b) and (c) of the Trust Agreement from time to time, (y) the Remarketing Agent or the Custody Account in accordance with Section 8.02(b) upon a Successful Remarketing or (z) the Property Trustee in accordance with Section 2.04 and (B) any Qualifying Treasury Securities and security entitlements thereto delivered from time to time upon the exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS pursuant to Sections 5.13(a)(i), (b) and (c) of the Trust Agreement and in accordance with Section 6.02;
Collateral Agreement

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     (2) all Qualifying Treasury Securities and security entitlements thereto purchased by the Collateral Agent with the Proceeds of Qualifying Treasury Securities pursuant to Section 6.05;
     (3) the U.S. Bank Deposit pursuant to Section 6.06;
     (4) all Proceeds of any of the foregoing (whether such Proceeds arise before or after the commencement of any proceeding under any applicable bankruptcy, insolvency or other similar law, by or against the Trust, as pledgor or with respect to the pledgor); and
     (5) all powers and rights now owned or hereafter acquired under or with respect to the Collateral.
          “Collateral Account” means the securities account of USBNA, as Collateral Agent, maintained by the Securities Intermediary and designated “U.S. Bank National Association, as Collateral Agent of U.S. Bancorp, as pledgee of USB Capital IX, acting through Wilmington Trust Company, as Property Trustee.”
          “Collateral Agent” means the Person named as the “Collateral Agent” in the first paragraph of this Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Collateral Agent” shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.
          “Company” means the Person named as the “Company” in the first paragraph of this Agreement until a successor shall have become such pursuant to the applicable provisions of the Stock Purchase Contract Agreement, and thereafter “Company” shall mean such successor.
          “Custodial Agent” means the Person named as the “Custodial Agent” in the first paragraph of this Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Custodial Agent” shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.
          “Custody Account” means the securities account of USBNA, as Custodial Agent, designated “U.S. Bank National Association, as Custodial Agent for USB Capital IX.”
          “Custody Notes” has the meaning specified in Section 4.01.
          “Exchange” means an exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS pursuant to Section 5.13(b) of the Trust Agreement and Section 6.02 or an exchange of Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities pursuant to Section 5.13(d) of the Trust Agreement and Section 6.03.
          “Final Dealer” has the meaning specified in Section 6.05(a).
          “Indemnities” has the meaning specified in Section 10.08(b).
          “Like Amount” means with respect to a distribution of Notes to a Third-Party Agent (as such term is defined in the Trust Agreement) in connection with a retirement of the Subject Normal ITS
Collateral Agreement

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pursuant to Section 4.9 of the Trust Agreement, Notes having an aggregate principal amount equal to the Liquidation Amount (as such term is defined in the Trust Agreement) of the applicable Subject Normal ITS.
          “Loss” (and collectively, “Losses”) has the meaning specified in Section 10.08(b).
          “Market Disruption Event” means (i) a general moratorium on commercial banking activities in New York declared by the relevant authorities or (ii) any material disruption of the U.S. government securities market or U.S. federal funds-transfer systems, written notification of which shall have been given to the Collateral Agent by any of the Administrative Trustees.
          “Notes” means the Remarketable Junior Subordinated Notes due 2042 of the Company issued pursuant to the Indenture.
          “Notice of Contingent Disposition Election” means a Notice of Contingent Disposition Election substantially in the form set forth on the reverse side of the form of Capital ITS Certificate, a copy of which is attached hereto as Exhibit C.
          “Notice of Contingent Exchange Election” means a Notice of Contingent Exchange Election substantially in the form set forth on the reverse side of the form of Normal ITS Certificate, a copy of which is attached hereto as Exhibit A.
          “Obligations” means all obligations and liabilities of the Trust and the Property Trustee on behalf of the Trust under each Stock Purchase Contract, the Stock Purchase Contract Agreement and this Agreement or any other document made, delivered or given in connection herewith or therewith, in each case whether on account of principal, interest (including, without limitation, interest accruing before and after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Property Trustee or the Trust, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), fees, indemnities, costs, expenses or otherwise (including, without limitation, all fees and disbursements of counsel to the Company or the Collateral Agent or the Securities Intermediary that are required to be paid by the Trust pursuant to the terms of any of the foregoing agreements).
          “Permitted Investments” means any one of the following, in each case maturing on the Business Day following the date of acquisition:
     (1) any evidence of indebtedness with an original maturity of 365 days or less issued, or directly and fully guaranteed or insured, by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support of the timely payment thereof or such indebtedness constitutes a general obligation of it);
     (2) deposits, certificates of deposit or acceptances with an original maturity of 365 days or less of any institution which is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500 million at the time of deposit (and which may include the Collateral Agent);
     (3) investments with an original maturity of 365 days or less of any Person that are fully and unconditionally guaranteed by a bank referred to in clause (2);
Collateral Agreement

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     (4) repurchase agreements and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any agency thereof and backed as to timely payment by the full faith and credit of the United States of America;
     (5) investments in commercial paper, other than commercial paper issued by the Company or its Affiliates, of any corporation incorporated under the laws of the United States of America or any State thereof, which commercial paper has a rating at the time of purchase at least equal to “A-1” by Standard & Poor’s Ratings Services (“S&P”) or at least equal to “P-1” by Moody’s Investors Service, Inc. (“Moody’s”); and
     (6) investments in money market funds (including, but not limited to, money market funds managed by the Collateral Agent or an Affiliate of the Collateral Agent) registered under the Investment Company Act of 1940, as amended, rated in the highest applicable rating category by S&P or Moody’s.
          “Pledge” means the lien and security interest created by this Agreement.
          “Pledged Notes” means each Note deposited with the Collateral Agent pursuant to Section 6.01 or delivered to the Collateral Agent pursuant to Section 6.03, until such time as it is (i) released from the Pledge and delivered to the Custodial Agent pursuant to Section 6.02 or to the Remarketing Agent or the Custody Account pursuant to Section 8.02(b) or (ii) released from the Pledge, assigned (as applicable) and transferred or delivered to the Property Trustee on behalf of the Trust as provided in Section 2.04.
          “Pledged Treasury Securities” means Qualifying Treasury Securities from time to time credited to the Collateral Account pursuant to Section 6.02 and not then released from the Pledge pursuant to Section 6.03, together with all Qualifying Treasury Securities purchased from time to time by the Collateral Agent with the Proceeds of maturing Pledged Treasury Securities pursuant to Section 6.05.
          “Preferred Stock” has the meaning specified in the Recitals of this Agreement.
          “Proceeds” has the meaning ascribed thereto in Section 9-102(a)(64) of the UCC and includes, without limitation, all interest, dividends, Cash, instruments, securities, financial assets and other property received, receivable or otherwise distributed upon the sale (including, without limitation, the Remarketing), exchange, collection or disposition of any financial assets from time to time held in the Collateral Account.
          “Property Trustee” means the Person named as the “Property Trustee” in the first paragraph of this Agreement until a successor Property Trustee shall have become such pursuant to the applicable provisions of the Trust Agreement, and thereafter “Property Trustee” shall mean such Person or any subsequent successor who is appointed pursuant to the Trust Agreement.
          “Purchase Price” has the meaning specified in the Recitals of this Agreement.
          “Recombination Notice and Request” means a Recombination Notice and Request substantially in the form set forth on the reverse side of the forms of Stripped ITS Certificate and Capital ITS Certificate, copies of which are attached hereto as Exhibits B and C respectively.
Collateral Agreement

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          “Reference Dealer” means each of the U.S. government securities dealers listed on Schedule I hereto (including any successor thereto) and any other U.S. government securities dealers designated by the Collateral Agent (it being understood that the Collateral Agent may, but shall not be obligated, to designate any one or more such other U.S. government securities dealers); provided that if at any time fewer than three of the entities named on Schedule I are active U.S. government securities dealers and approved counterparties of USBNA, any of the Administrative Trustees may designate an additional U.S. government securities dealer as a Reference Dealer.
          “Retirement Date” has the meaning specified in Section 4.9 of the Trust Agreement.
          “Retirement Notice” has the meaning specified in Section 4.9 of the Trust Agreement.
          “Remarketing” has the meaning specified in the Indenture.
          “Roll Date” means, with respect to any Additional Distribution Date, the latest date prior to such Additional Distribution Date that is a maturity date of Qualifying Treasury Securities held in the Collateral Account.
          “Securities Intermediary” means the Person named as the “Securities Intermediary” in the first paragraph of this Agreement until a successor Securities Intermediary shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Securities Intermediary” shall mean such Person or any subsequent successor who is appointed pursuant to this Agreement.
          “Securities Registrar” means the Person named as the “Securities Registrar” in the first paragraph of this Agreement until a successor Securities Registrar shall have been appointed by the Company pursuant to the applicable provisions of the Trust Agreement, and thereafter “Securities Registrar” shall mean such Person or any subsequent successor who is appointed pursuant to the Trust Agreement by the Company.
          “Stock Purchase Contract” has the meaning specified in the Recitals of this Agreement.
          “Stock Purchase Contract Agreement” has the meaning specified in the Recitals of this Agreement.
          “Stripping Notice and Request” means a Stripping Notice and Request substantially in the form set forth on the reverse side of the form of Normal ITS Certificate, a copy of which is attached hereto as Exhibit A.
          “Subject Normal ITS” has the meaning set forth in Section 4.9 of the Trust Agreement.
          “Successful” has the meaning specified in the Indenture.
          “Termination Event” has the meaning specified in the Stock Purchase Contract Agreement.
          “Third Party Agent” has the meaning specified in Section 4.9 of the Trust Agreement.
          “Trade Date” means, with respect to each Roll Date, the Business Day immediately preceding such Roll Date.
Collateral Agreement

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          “Trades” means the Treasury/Reserve Automated Debt Entry System maintained by the Federal Reserve Bank of New York pursuant to the Trades Regulations.
          “Trades Regulations” means the regulations of the United States Department of the Treasury, published at 31 C.F.R. Part 357, as amended from time to time. Unless otherwise defined herein, all terms defined in the Trades Regulations are used herein as therein defined.
          “Transfer” means (i) in the case of certificated securities in registered form, delivery as provided in Section 8-301(a) of the UCC, endorsed to the transferee or in blank by an effective endorsement, (ii) in the case of Qualifying Treasury Securities, registration of the transferee as the owner of such Qualifying Treasury Securities on Trades and (iii) in the case of security entitlements, including, without limitation, security entitlements with respect to Qualifying Treasury Securities, a securities intermediary indicating by book entry that such security entitlement has been credited to the transferee’s securities account.
          “Trust” has the meaning specified in the first paragraph of this Agreement.
          “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of March 17, 2006, among the Company, as Depositor, the Property Trustee, the Delaware Trustee and the Administrative Trustees (each as named therein), and the several Holders (as defined therein), as amended by Amendment No. 1 thereto, dated as of [ • ], 2010, as the same may be further amended, modified or supplemented from time to time.
          “UCC” means the Uniform Commercial Code as in effect in the State of New York from time to time.
          “U.S. Bank Deposit” has the meaning specified in the Stock Purchase Contract Agreement.
          “USBNA” has the meaning specified in the first paragraph of this Agreement.
          “Value” means, with respect to any item of Collateral on any date, as to (1) Cash, the face amount thereof, (2) Notes, the aggregate principal amount thereof and (3) Qualifying Treasury Securities, the aggregate principal amount thereof.
ARTICLE II
Pledge
     Section 2.01 Pledge.
          The Trust (acting through the Property Trustee) hereby pledges and grants to the Collateral Agent, as agent of and for the benefit of the Company, a continuing first priority security interest in and to, and a lien upon and right of set-off against, all of such Person’s right, title and interest in and to the Collateral to secure the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations. The Collateral Agent shall have all of the rights, remedies and recourses with respect to the Collateral afforded a secured party by the UCC, in addition to, and not in limitation of, the other rights, remedies and recourses afforded to the Collateral Agent by this Agreement.
Collateral Agreement

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     Section 2.02 Control.
          The Collateral Agent shall have control of the Collateral Account pursuant to the provisions of Article III.
     Section 2.03 Termination.
          This Agreement and the Pledge created hereby shall terminate upon the satisfaction of the Obligations. Upon receipt by the Collateral Agent from the Company of notice of such termination, the Collateral Agent shall, except as otherwise provided herein, Transfer and instruct the Securities Intermediary to Transfer the Collateral to or upon the order of the Property Trustee, free and clear of the Pledge created hereby.
     Section 2.04 Release for Subject Normal ITS.
          In connection with the retirement of any Subject Normal ITS pursuant to Section 4.9 of the Trust Agreement, the Company shall provide to the Collateral Agent, not less than two Business Days prior to the applicable Retirement Date (unless a shorter period shall be acceptable to the Collateral Agent), a copy of the Retirement Notice submitted by the Company to the Property Trustee and the Securities Registrar in respect of such Subject Normal ITS. Upon receipt by the Collateral Agent on the Retirement Date of written confirmation from the Securities Registrar as to its receipt of the Subject Normal ITS pursuant to such Retirement Notice, the Collateral Agent shall (i) release Pledged Notes of a Like Amount with respect to such Subject Normal ITS from the Pledge, and (ii) Transfer Pledged Notes to the Property Trustee on behalf of the Trust for distribution by the Property Trustee to the Third Party Agent, all as contemplated in Section 4.9 of the Trust Agreement.
ARTICLE III
Control
     Section 3.01 Establishment of Collateral Account.
          The Securities Intermediary hereby confirms that:
     (a) the Securities Intermediary has established the Collateral Account;
     (b) the Collateral Account is a securities account;
     (c) subject to the terms of this Agreement, the Securities Intermediary shall identify in its records the Collateral Agent as the entitlement holder entitled to exercise the rights that comprise any financial asset credited to the Collateral Account;
     (d) all property delivered to the Securities Intermediary pursuant to this Agreement or the Stock Purchase Contract Agreement, including any Permitted Investments purchased by the Securities Intermediary from the Proceeds of any Collateral, will be credited promptly to the Collateral Account; and
     (e) all securities or other property underlying any financial assets credited to the Collateral Account shall be (i) registered in the name of the Property Trustee and indorsed to the Securities
Collateral Agreement

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Intermediary or in blank, (ii) registered in the name of the Securities Intermediary or the Collateral Agent or (iii) credited to another securities account maintained in the name of the Securities Intermediary. In no case will any financial asset credited to the Collateral Account be registered in the name of the Property Trustee or specially indorsed to the Property Trustee unless such financial asset has been further indorsed to the Securities Intermediary or in blank.
     Section 3.02 Treatment as Financial Assets.
          Each item of property (whether investment property, financial asset, security, instrument or Cash) credited to the Collateral Account shall be treated as a financial asset.
     Section 3.03 Sole Control by Collateral Agent.
          Except as provided in Section 8.01, at all times prior to the termination of the Pledge, the Collateral Agent shall have sole control of the Collateral Account, and the Securities Intermediary shall take instructions and directions with respect to the Collateral Account solely from the Collateral Agent. If at any time the Securities Intermediary shall receive an entitlement order issued by the Collateral Agent and relating to the Collateral Account, the Securities Intermediary shall comply with such entitlement order without further consent by the Property Trustee or any other Person. Except with respect to any Pledged Notes that are released from the Pledge as provided in Section 2.04, or as otherwise permitted under this Agreement, until termination of the Pledge, the Securities Intermediary will not comply with any entitlement orders issued by the Property Trustee.
          The Trust hereby irrevocably constitutes and appoints the Collateral Agent and the Company, with full power of substitution, as the Trust’s attorney-in-fact to take on behalf of, and in the name, place and stead of the Trust and the Holders, any action necessary or desirable to perfect and to keep perfected the security interest in the Collateral referred to in Section 2.01. The grant of such power-of-attorney shall not be deemed to require of the Collateral Agent any specific duties or obligations not otherwise expressly assumed by the Collateral Agent hereunder. Notwithstanding the foregoing, in no event shall the Collateral Agent or Securities Intermediary be responsible for the preparation or filing of any financing or continuation statements in the appropriate jurisdictions or responsible for maintenance or perfection of any security interest hereunder.
     Section 3.04 Securities Intermediary’s Location.
          The Collateral Account, and the rights and obligations of the Securities Intermediary, the Collateral Agent and the Property Trustee with respect thereto, shall be governed by the laws of the State of New York. Regardless of any provision in any other agreement, for purposes of the UCC, New York shall be deemed to be the Securities Intermediary’s jurisdiction.
     Section 3.05 No Other Claims.
          Except for the claims and interest of the Collateral Agent and of the Trust in the Collateral Account, the Securities Intermediary (without having conducted any investigation) does not know of any claim to, or interest in, the Collateral Account or in any financial asset credited thereto. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Collateral Account or in any financial asset carried therein, the Securities Intermediary will promptly notify the Collateral Agent and the Property Trustee.
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     Section 3.06 Investment and Release.
          All Proceeds of financial assets from time to time deposited in the Collateral Account shall be invested and reinvested as provided in this Agreement. At no time prior to termination of the Pledge with respect to any particular property shall such property be released from the Collateral Account except in accordance with this Agreement or upon written instructions of the Collateral Agent.
     Section 3.07 No Other Agreements.
          The Securities Intermediary has not entered into, and prior to the termination of the Pledge will not enter into, any agreement with any other Person relating to the Collateral Account or any financial assets credited thereto, including, without limitation, any agreement to comply with entitlement orders of any Person other than the Collateral Agent.
     Section 3.08 Powers Coupled with an Interest.
          The rights and powers granted in this Article III to the Collateral Agent have been granted in order to perfect its security interests in the Collateral Account, are powers coupled with an interest and will be affected neither by the bankruptcy of the Property Trustee or the Trust nor by the lapse of time. The obligations of the Securities Intermediary under this Article III shall continue in effect until the termination of the Pledge with respect to any and all Collateral.
     Section 3.09 Waiver of Lien; Waiver of Set-off.
          The Securities Intermediary waives any security interest, lien or right to make deductions or set-offs that it may now have or hereafter acquire in or with respect to the Collateral Account, any financial asset credited thereto or any security entitlement in respect thereof. Neither the financial assets credited to the Collateral Account nor the security entitlements in respect thereof will be subject to deduction, set-off, banker’s lien or any other right in favor of any person other than the Company.
ARTICLE IV
Custody
     Section 4.01 Appointment.
          The Trust hereby appoints the Custodial Agent as Custodial Agent of the Trust to hold all of the Notes that are property of the Trust, other than the Pledged Notes and Pledge Notes that have been released from the Pledge and Transferred to the Property Trustee for distribution by the Property Trustee to the Third-Party Agent in accordance with Section 2.04 hereof (collectively, the “Custody Notes”), for the benefit of the Trust and for the purposes set forth herein, and the Custodial Agent hereby accepts such appointment under the terms and conditions set forth herein.
     Section 4.02 Custody.
          The Custodial Agent will hold the Custody Notes in the Custody Account. For the avoidance of doubt, the Custodial Agent shall segregate on its books and records the assets of the Trust from assets held by the Custodial Agent for other customers (including the Collateral) or for the Custodial Agent itself. The Custodial Agent shall only have the obligations expressly set forth herein and shall
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have no responsibility for monitoring compliance with the Trust Agreement, the Stock Purchase Contract Agreement or any other agreement in connection therewith. The Custodial Agent shall accept the Transfer of Notes from the Collateral Agent from time to time pursuant to Section 6.02, deliver Notes to the Collateral Agent from time to time pursuant to Section 6.03 and deliver Notes to the Remarketing Agent on the Remarketing Settlement Date pursuant to Section 8.03.
     Section 4.03 Termination of Custody Account.
          Upon receipt by the Custodial Agent from the Company of notice of termination of this Agreement pursuant to Section 2.03, the Custodial Agent shall deliver the Custody Notes to the Property Trustee.
     Section 4.04 Waiver of Lien; Waiver of Set-off.
          The Custodial Agent waives any security interest, lien or right to make deductions or set-offs that it may now have or hereafter acquire in or with respect to the Custody Account, any financial asset credited thereto or any security entitlement in respect thereof. Neither the financial assets credited to the Custody Account nor the security entitlements in respect thereof will be subject to deduction, set-off, banker’s lien or any other right in favor of any Person other than the Trust.
ARTICLE V
Distributions on Collateral and
Custody Notes
     Section 5.01 Interest on Notes.
     (a) The Collateral Agent shall transfer all interest received from time to time by the Collateral Agent on account of the Pledged Notes to the Paying Agent.
     (b) The Custodial Agent shall transfer all interest received from time to time by the Custodial Agent on account of the Custody Notes to the Paying Agent.
     Section 5.02 Payments Following Termination Event.
          Following a Termination Event, written notice of which the Collateral Agent or the Custodial Agent, as the case may be, shall have received from the Company, the Property Trustee or any of the Administrative Trustees,
     (a) the Collateral Agent shall cause the Securities Intermediary to Transfer (i) the Pledged Notes, (ii) the Pledged Treasury Securities and (iii) any Permitted Investments, including in each case any and all payments of principal or interest it receives in respect thereof, to the Property Trustee or its designee, free and clear of the Pledge created hereby; and
     (b) the Custodial Agent shall Transfer the Custody Notes and any and all payments of principal or interest it receives in respect thereof to the Property Trustee or its designee.
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     Section 5.03 Payments Prior to or on Stock Purchase Date.
     (a) Except as provided in Section 5.03(c) and Section 6.05, if the Collateral Agent or the Custodial Agent, as the case may be, shall not have received from the Company, the Property Trustee or any of the Administrative Trustees notice of any Termination Event, all payments of principal received by the Collateral Agent or the Securities Intermediary in respect of (i) the Pledged Notes and (ii) the Pledged Treasury Securities shall be held until the Stock Purchase Date and an amount thereof equal to the Purchase Price under the Stock Purchase Contracts shall be transferred to the Company on the Stock Purchase Date as provided in Section 2.2 of the Stock Purchase Contract Agreement in satisfaction of the Trust’s obligation to pay such Purchase Price. Any balance remaining in the Collateral Account shall be released from the Pledge and Transferred to the Paying Agent, free and clear of the Pledge created thereby. The Company shall instruct the Collateral Agent in writing as to the Permitted Investments in which any payments received under this Section 5.03(a) (which, for purpose of confirmation, includes the excess Proceeds received under Section 6.05(b)) shall be invested; provided that if the Company fails to deliver such instructions by 10:30 A.M. (New York City time) on the day such payments are received by the Collateral Agent, the Collateral Agent shall invest such payments in the Permitted Investments as described in clause (6) of the definition of Permitted Investments. The Collateral Agent shall have no liability in respect of losses incurred as a result of the failure of the Company to provide timely written investment direction. The Collateral Agent may conclusively rely on any written direction and shall bear no liability for any loss or other damage based on acting or omitting to act under this Section 5.03 (which, for purpose of confirmation, includes acting or omitting to act under Section 6.05(b) in respect of excess Proceeds referred to therein) pursuant to any direction of the Company or any investment in Permitted Investments as described in clause (6) of the definition of Permitted Investments as provided herein and neither the Collateral Agent nor the Securities Intermediary shall in any way be liable for the selection of Permitted Investments or by reason of any insufficiency in the Collateral Account resulting from any loss on any Permitted Investment included therein.
     (b) All payments of principal received by the Custodial Agent in respect of the Custody Notes shall be transferred to the Paying Agent.
     (c) All payments of principal received by the Collateral Agent or the Securities Intermediary in respect of (1) the Pledged Notes and (2) the Pledged Treasury Securities or security entitlements thereto, that, in each case, have been released from the Pledge pursuant hereto (other than Pledged Notes that upon such release shall have become Custody Notes in accordance with Section 6.03) shall be transferred to or in accordance with the written instructions of the Paying Agent.
     Section 5.04 Payments to Property Trustee.
          The Securities Intermediary and the Custodial Agent shall use commercially reasonable efforts to deliver payments to the Paying Agent or the Property Trustee as provided hereunder to the following account established by the Paying Agent or the Property Trustee, for credit to U.S. Bank National Association, ABA#091000022, A/C#180121167365, for further credit to 793126000, Ref: USB Capital IX, Attn: Beverly A. Freeney, not later than 12:00 P.M. (New York City time) on the Business Day it receives such payment; provided that if such payment is required to be made on a day that is not a Business Day or after 11:00 A.M. (New York City time) on a Business Day, then it shall use commercially reasonable efforts to deliver such payment to the Paying Agent or the Property Trustee no later than 10:30 A.M. (New York City time) on the next succeeding Business Day.
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     Section 5.05 Assets Not Properly Released.
          If the Paying Agent or the Property Trustee shall receive any principal payments on account of financial assets credited to the Collateral Account and not released therefrom in accordance with this Agreement, the Paying Agent or the Property Trustee shall hold the same as trustee of an express trust for the benefit of the Company and, upon receipt of an Officers’ Certificate of the Company so directing, promptly deliver the same to the Securities Intermediary for credit to the Collateral Account or to the Company for application to the Obligations, and the Paying Agent or the Property Trustee shall acquire no right, title or interest in any such payments of principal amounts so received. Neither the Paying Agent nor the Property Trustee shall have any liability under this Section 5.05 unless and until it has been notified in writing that such payment was delivered to it erroneously and nor shall it have any liability for any action taken, suffered or omitted to be taken prior to its receipt of such notice.
ARTICLE VI
Initial Deposit; Exchange of Normal ITS and
Qualifying Treasury Securities for Stripped ITS and Capital ITS; Reinvestment of
Proceeds of Pledged Treasury Securities
     Section 6.01 Initial Deposit of Notes.
     (a) Prior to or concurrently with the execution and delivery of the Original Collateral Agreement, the Property Trustee Transfered to the Securities Intermediary, for credit to the Collateral Account, Notes having an aggregate principal amount of $1,251,000,000.
     (b) The Collateral Agent shall, at any time or from time to time, at the written request of the Company, cause any or all securities or other property underlying any financial assets credited to the Collateral Account to be registered in the name of the Securities Intermediary, the Collateral Agent or their respective nominees; provided that unless any Event of Default (as defined in the Trust Agreement) shall have occurred and be continuing, and in respect of which the Collateral Agent shall have received written notice from the Property Trustee or the Administrative Trustees, the Collateral Agent agrees not to cause any Notes to be so re-registered.
     Section 6.02 Exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS.
     (a) On each occasion on which a Holder of Normal ITS exercises its rights pursuant to Sections 5.13(a)(i), (b) and (c) of the Trust Agreement to exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS by, during any Exchange Period:
     (i) depositing with the Collateral Agent the treasury security that is the Qualifying Treasury Security on the date of deposit, in the principal amount of $1,000 for each Normal ITS being Exchanged;
     (ii) Transferring the Normal ITS being Exchanged to the Securities Registrar; and
     (iii) delivering a duly executed and completed Stripping Notice and Request to the Securities Registrar and Collateral Agent (x) stating that the Holder has deposited the appropriate Qualifying Treasury Securities with the Collateral Agent for deposit in the Collateral Account, (y)
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stating that the Holder is Transferring the related Normal ITS to the Securities Registrar in connection with an Exchange of such Normal ITS and Qualifying Treasury Securities for a Like Amount of Stripped ITS and Capital ITS, and (z) requesting the delivery to the Holder of such Stripped ITS and Capital ITS,
the Collateral Agent shall, upon the deposit and Transfer pursuant to clauses (i) and (ii) and receipt of the notice and request referred to in clause (iii), (w) be deemed to accept the Qualifying Treasury Securities deposited pursuant to clause (i) as Collateral subject to the Pledge, (x) release Pledged Notes of a Like Amount from the Pledge, (y) Transfer such Pledged Notes to the Custodial Account free and clear of the Company’s security interest therein, and (z) confirm to the Property Trustee in writing that such release and Transfer has occurred. The Custodial Agent shall continue to hold such Notes as Custody Notes pursuant to Article IV.
     (b) The Securities Registrar, pursuant to the procedures provided for in Section 5.11 of the Trust Agreement dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Normal ITS Transferred pursuant to Section 6.02(a) and deliver a Like Amount of Stripped ITS and Capital ITS to the Holder, all by making appropriate notations on the Book-Entry Trust Preferred Securities Certificates of the appropriate Class.
     (c) The substitution of Qualifying Treasury Securities, or security entitlements thereto, for financial assets held in the Collateral Account pursuant to this Section 6.02, shall not constitute a novation of the security interest created hereby.
     Section 6.03 Exchange of Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities.
     (a) On each occasion on which a Holder of Stripped ITS and Capital ITS exercises its rights pursuant to Sections 5.13(d) of the Trust Agreement to exchange Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities by, during any Exchange Period, Transferring the Stripped ITS and the Capital ITS being Exchanged to the Securities Registrar and delivering a duly executed and completed Recombination Notice and Request to the Securities Registrar and Collateral Agent (x) stating that the Holder is Transferring the related Stripped ITS and Capital ITS to the Securities Registrar in connection with the Exchange of such Stripped ITS and Capital ITS for a Like Amount of each of Normal ITS and Pledged Treasury Securities, (y) requesting the Collateral Agent to release from the Pledge and deliver to the Holder Pledged Treasury Securities in a principal amount equal to the Liquidation Amount of each of the Stripped ITS and Capital ITS being exchanged, and (z) requesting the Securities Registrar to deliver to the Holder Normal ITS of a Like Amount.
     (b) Upon the Transfer pursuant to Section 6.03(a) and receipt of the notice and request referred to in Section 6.03(a):
     (i) the Custodial Agent will Transfer a Like Amount of Notes from the Custody Account to the Collateral Account in substitution for such Pledged Treasury Securities;
     (ii) the Collateral Agent will be deemed to accept the Notes Transferred by the Custodial Agent pursuant to clause (i) as Collateral subject to the Pledge;
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     (iii) the Collateral Agent will release Pledged Treasury Securities of a Like Amount from the Pledge and deliver such Qualifying Treasury Securities to the Holder free and clear of the Company’s security interest therein, and confirm in writing to the Property Trustee that such release and Transfer has occurred; and
     (iv) the Securities Registrar, pursuant to the procedures provided for in Section 5.11 of the Trust Agreement dealing with increasing and decreasing the number of Trust Preferred Securities evidenced by Book-Entry Trust Preferred Securities Certificates, shall cancel the number of Stripped ITS and Capital ITS delivered pursuant to Section 6.03(a) and deliver a Like Amount of Normal ITS to the Holder, all by making appropriate notations on the Book-Entry Trust Preferred Securities Certificates of the appropriate Class.
     (c) The substitution of Notes for financial assets held in the Collateral Account pursuant to this Section 6.03, shall not constitute a novation of the security interest created hereby.
     Section 6.04 Termination Event.
     (a) Upon receipt by the Collateral Agent of written notice from the Company, the Property Trustee or any of the Administrative Trustees of the Trust that a Termination Event has occurred, the Collateral Agent shall release all Collateral from the Pledge and shall promptly instruct the Securities Intermediary to Transfer:
     (i) any Pledged Notes;
     (ii) the Proceeds of the U.S. Bank Deposit; and
     (iii) any Pledged Treasury Securities,
          to the Property Trustee, free and clear of the Pledge created hereby.
     (b) If such Termination Event shall result from the Company’s becoming a debtor under the Bankruptcy Code, and if the Collateral Agent shall for any reason fail promptly to effectuate the release and Transfer of all Pledged Notes, Pledged Treasury Securities, Permitted Investments, the U.S. Bank Deposit and Proceeds of any of the foregoing, as the case may be, as provided by this Section 6.04, the Property Trustee or any of the Administrative Trustees shall:
     (i) use its best efforts to obtain an opinion of a nationally recognized law firm to the effect that, notwithstanding the Company being the debtor in such a bankruptcy case, the Collateral Agent will not be prohibited from releasing or Transferring the Collateral as provided in this Section 6.04 and shall deliver or cause to be delivered such opinion to the Collateral Agent within ten calendar days after the occurrence of such Termination Event, and if (A) the Property Trustee or any of the Administrative Trustees shall be unable to obtain such opinion within ten calendar days after the occurrence of such Termination Event or (B) the Collateral Agent shall continue, after delivery of such opinion, to refuse to effectuate the release and Transfer of all Pledged Notes, Pledged Treasury Securities, Permitted Investments, the U.S. Bank Deposit and Proceeds of any of the foregoing, as the case may be, as provided in this Section 6.04, then the Property Trustee shall within fifteen calendar days after the occurrence of such Termination Event commence an action or proceeding in the court having jurisdiction of the Company’s case under the Bankruptcy Code seeking an order requiring the Collateral Agent to effectuate the
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release and Transfer of all Pledged Notes, Pledged Treasury Securities, Permitted Investments, the U.S. Bank Deposit and Proceeds of any of the foregoing, or as the case may be, as provided by this Section 6.04; or
     (ii) commence an action or proceeding like that described in Section 6.04(b)(i) hereof within ten days after the occurrence of such Termination Event.
     Section 6.05 Reinvestment of Proceeds of Pledged Treasury Securities.
     (a) At or about 11:00 A.M., New York City time, on each Trade Date, the Collateral Agent shall select at least three Reference Dealers (including at least three Reference Dealers named on Schedule I hereto or named by any of the Administrative Trustees as replacements therefor who are approved counterparties of USBNA) and request each of them to provide a commitment (which may be oral if promptly confirmed in writing by facsimile or e-mail), satisfactory in form to the Collateral Agent, to the effect that if selected as the Final Dealer, such Reference Dealer shall sell to the Collateral Agent, for delivery against payment on the immediately succeeding Roll Date, an aggregate principal amount of the U.S. treasury security that is the Qualifying Treasury Security on such Roll Date equal to the aggregate principal amount of Qualifying Treasury Securities held in the Collateral Account on such Trade Date. If the Collateral Agent shall have received at least two firm offers, it shall select the lowest offer and the Reference Dealer providing the lowest offer shall be the “Final Dealer”; provided that if two or more Reference Dealers have provided identical lowest offers, the Collateral Agent shall select any of these Reference Dealers as the Final Dealer in its absolute discretion. The Final Dealer shall be obligated to sell to the Collateral Agent, for Cash on the Roll Date, the aggregate principal amount of the U.S. treasury security specified in such offer. If the Collateral Agent determines that (i) a Market Disruption Event has occurred or (ii) fewer than two Reference Dealers have provided firm offers in a timely manner meeting the foregoing requirements, the steps contemplated above shall be taken on each succeeding Business Day on which the Collateral Agent determines that no Market Disruption Event has occurred until at least two Reference Dealers have provided such offers, except that the Collateral Agent shall request offers from the Reference Dealers for same day settlement. The Collateral Agent shall use reasonable care in administering the foregoing procedures and shall have no liability in connection therewith to the Trust, the Property Trustee, the Company or any other Person in the absence of gross negligence or willful misconduct. All determinations regarding whether a Market Disruption Event has occurred shall be made by the Collateral Agent in its sole discretion.
     (b) On each Roll Date (or, if no Final Dealer shall have been selected on the Trade Date, on the date that the Final Dealer is selected), the Collateral Agent shall instruct the Securities Intermediary to apply the Proceeds of the U.S. treasury securities held in the Collateral Account to the purchase price of the Qualifying Treasury Securities, which shall be deposited in the Collateral Account, and to apply the excess of such Proceeds over the purchase price of the Qualifying Treasury Securities to purchase Permitted Investments for deposit in the Collateral Account.
     (c) On each Additional Distribution Date, if the Qualifying Treasury Securities shall have been purchased and deposited in the Collateral Account, the Collateral Agent shall liquidate the Permitted Investments in the Collateral Account and direct the Securities Intermediary to pay the Proceeds to the Payment Account.
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     Section 6.06 Application of Proceeds in Settlement of Stock Purchase Contracts.
     (a) The Trust (acting through the Property Trustee) agrees to pay the purchase price under the Stock Purchase Contracts on the Stock Purchase Date from the Proceeds of the Qualifying Treasury Securities held in the Collateral Account and the U.S. Bank Deposit (or in the circumstances set forth in the Stock Purchase Contract Agreement, by assignment thereof). Without receiving any further instruction from the Property Trustee, the Collateral Agent shall, in settlement of such Stock Purchase Contracts on the Stock Purchase Date, (i) instruct the Securities Intermediary to remit Proceeds of the Qualifying Treasury Securities to the Company and (ii) instruct U.S. Bank National Association to pay the Proceeds of the U.S. Bank Deposit to the Company in an amount equal to the excess of the Purchase Price over the amount of the Proceeds of the Qualifying Treasury Securities.
     (b) In the event of a Failed Remarketing, the Collateral Agent, for the benefit of the Company, will, at the written instruction of the Company, deliver or dispose of the Pledged Notes in accordance with the Company’s written instructions to satisfy in full, from any such disposition or retention, the obligations of the Trust to pay the purchase price for the shares of Preferred Stock to be issued under the Stock Purchase Contracts to the extent not paid from the Proceeds of the Qualifying Treasury Securities held in the Collateral Account.
     (c) Thereafter, the Collateral Agent shall promptly remit the Proceeds of the Qualifying Treasury Securities held in the Collateral Account in excess of the aggregate purchase price for the shares of Preferred Stock to be issued under such Stock Purchase Contracts to the Property Trustee.
ARTICLE VII
Voting Rights –– Notes
     Section 7.01 Voting Rights.
          The Property Trustee on behalf of the Trust may, subject to the Trust Agreement, exercise, or refrain from exercising, any and all voting and other consensual rights pertaining to the Notes or any part thereof for any purpose not inconsistent with the terms of this Agreement and in accordance with the terms of the Stock Purchase Contract Agreement; provided, however, that the Property Trustee shall not exercise or shall not refrain from exercising such right with respect to any Notes, if, in the reasonable judgment of the Property Trustee, such action would impair or otherwise have a material adverse effect on the value of all or any of the Notes; and provided, further, that the Property Trustee shall give the Company, the Collateral Agent and the Custodial Agent, at least five Business Days’ prior written notice of the manner in which it intends to exercise, or its reasons for refraining from exercising, any such right. Upon receipt of any notices and other communications in respect of any Notes, including notice of any meeting at which holders of the Notes are entitled to vote or solicitation of consents, waivers or proxies of holders of the Notes, the Collateral Agent and the Custodial Agent shall use reasonable efforts to send promptly to the Property Trustee such notice or communication, and as soon as reasonably practicable after receipt of a written request therefor from the Property Trustee, execute and deliver to the Property Trustee such proxies and other instruments in respect of such Notes (in form and substance satisfactory to the Collateral Agent or the Custodial Agent, as the case may be) as are prepared by the Company and delivered to the Property Trustee with respect to the Notes.
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ARTICLE VIII
Rights and Remedies
     Section 8.01 Rights and Remedies of the Collateral Agent.
     (a) In addition to the rights and remedies specified in Section 6.04 or otherwise available at law or in equity, after an event of default (as specified in Section 8.01(b)) hereunder, the Collateral Agent shall have all of the rights and remedies with respect to the Collateral of a secured party under the UCC (whether or not the UCC is in effect in the jurisdiction where the rights and remedies are asserted) and the Trades Regulations and such additional rights and remedies to which a secured party is entitled under the laws in effect in any jurisdiction where any rights and remedies hereunder may be asserted. Without limiting the generality of the foregoing, such remedies may include, to the extent permitted by applicable law, (1) retention of the Pledged Notes or the Pledged Treasury Securities in full satisfaction of the Trust’s or the Property Trustee’s obligations under the Stock Purchase Contracts and the Stock Purchase Contract Agreement or (2) sale of the Pledged Notes or the Pledged Treasury Securities in one or more public or private sales as permitted by applicable law.
     (b) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, in the event the Company is unable to make payments from amounts transferred or transferable to the Company on account of the principal payments of any Pledged Treasury Securities as provided in Article V, in satisfaction of the Obligations of the Trust under the Stock Purchase Contracts, the inability to make such payments shall constitute an event of default hereunder and the Collateral Agent shall have and may exercise, with reference to such Pledged Treasury Securities any and all of the rights and remedies available to a secured party under the UCC and the Trades Regulations after default by a debtor, and as otherwise granted herein or under any other law.
     (c) Without limiting any rights or powers otherwise granted by this Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably authorized to receive and collect all payments of (i) the principal amount of, and any interest on, the Pledged Notes and (ii) the principal amount of, and any interest on, the Pledged Treasury Securities, subject, in each case, to the provisions of Article V, and as otherwise granted herein.
     (d) The Property Trustee agrees that, from time to time, upon the written request of the Company or the Collateral Agent (acting upon the request of the Company), the Property Trustee shall execute and deliver such further documents and do such other acts and things as the Company or the Collateral Agent (acting upon the request of the Company) may reasonably request in order to maintain the Pledge, and the perfection and priority thereof, and to confirm the rights of the Collateral Agent hereunder; provided that, in no event shall the Property Trustee be responsible for the preparation (other than execution upon the request of the Company) or filing of any financing or continuation statements. In the absence of bad faith, the Property Trustee shall have no liability to the Company or the Collateral Agent (acting upon the request of the Company) for executing any documents or taking any such acts requested by the Company or the Collateral Agent (acting upon the request of the Company) hereunder.
     Section 8.02 Remarketing; Contingent Exchange Elections by Holder of Normal ITS.
     (a) In the event a Holder of Normal ITS exercises its rights pursuant to Sections 5.14(a)(i), (b) and (e) of the Trust Agreement to contingently exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS in connection with any Remarketing by,
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     (i) during the period that commences with the Collateral Agent’s and the Securities Registrar’s opening of normal business hours on the tenth Business Day immediately preceding a Remarketing Date and ending at 3:00 P.M., New York City time, on the second Business Day immediately preceding such Remarketing Date, Transferring the Normal ITS that are the subject of such Contingent Exchange Election to the Securities Registrar, accompanied by a duly executed and completed Notice of Contingent Exchange Election; and
     (ii) not later than 3:00 P.M., New York City time, on the second Business Day immediately preceding the Remarketing Date, depositing with the Collateral Agent the treasury security that is the Qualifying Treasury Security on the date of deposit, in the amount of $1,000 for each Normal ITS that is subject to the Contingent Exchange Election,
the Collateral Agent shall, upon the Transfer and receipt of the duly executed and completed Notice of Contingent Exchange Election pursuant to clause (i) and the deposit referred to in clause (ii), notify the Remarketing Agent not later than 11:00 A.M., New York City time, on the Business Day immediately preceding each Remarketing Date of the aggregate principal amount of Pledged Notes with respect to which elections have been validly made pursuant to this Section 8.02(a).
     (b) Upon the receipt of notice from the Remarketing Agent that the Remarketing has been Successful, on the Remarketing Settlement Date,
     (i) the Collateral Agent shall (A) instruct the Securities Intermediary to release from the Pledge and deliver to the Remarketing Agent the Pledged Notes for which no election has been validly made pursuant to Section 8.02(a), free and clear of the Company’s security interest therein, against delivery by the Remarketing Agent of Qualifying Treasury Securities purchased with the net Proceeds of the sale of such Pledged Notes in the Remarketing for deposit in the Collateral Account, (B) instruct the Securities Intermediary to release from the Pledge and (C) Transfer to the Custody Account the Pledged Notes for which an election has been validly made pursuant to Section 8.02(a), free and clear of the Company’s security interest therein, upon delivery by the Collateral Agent to the Securities Intermediary for deposit into the Collateral Account the Qualifying Treasury Securities to be deposited in connection with such elections, and confirm to the Property Trustee in writing that such instructions have been delivered;
     (ii) the Securities Intermediary will (A) release the Pledged Notes from the Pledge, Transfer such Pledged Notes, free and clear of the Pledge, (x) to the Remarketing Agent in the case of Pledged Notes for which no election has been validly made pursuant to Section 8.02(a) and (y) to the Custody Account in the case of Pledged Notes for which an election has been validly made pursuant to Section 8.02(a), (B) deposit in the Collateral Account as Pledged Treasury Securities the Qualifying Treasury Securities deposited with the Collateral Agent pursuant to Section 8.02(a) or delivered by the Remarketing Agent and (C) confirm to the Property Trustee in writing that such release, Transfer and deposit have occurred;
     (iii) the Custodial Agent shall hold such Notes delivered to it pursuant to clause (ii)(y) of this Section 8.02(b) in the Custody Account; and
     (iv) the Securities Registrar shall cancel the number of Normal ITS Transferred pursuant to Section 8.02(a) and deliver a Like Amount of Capital ITS and Stripped ITS to the Holder in accordance with the procedures provided for in Section 5.14 of the Trust Agreement.
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     (c) Upon the receipt of notice from the Remarketing Agent that the Remarketing has not been Successful:
     (i) as soon as reasonably practicable after the Remarketing, the Collateral Agent will deliver back to such Holder the Qualifying Treasury Securities delivered by such Holder to the Collateral Agent pursuant to Section 8.02(a); and
     (ii) the Securities Registrar will disregard the delivery by such Holder of Normal ITS pursuant to Section 8.02(a), with the consequence that such Holder shall be deemed to continue to hold such Normal ITS.
     (d) The substitution of Qualifying Treasury Securities, or security entitlements thereto, for financial assets held in the Collateral Account pursuant to this Section 8.02, shall not constitute a novation of the security interest created hereby.
     Section 8.03 Contingent Disposition Election by Holder of Capital ITS.
     (a) In the event a Holder of Capital ITS exercises its rights pursuant to Sections 5.14(a)(ii), (b), (f) and (g) of the Trust Agreement to contingently dispose of Capital ITS in connection with any Remarketing by, during the period that commences with the Custodial Agent’s and Securities Registrar’s opening of normal business hours on the tenth Business Day immediately preceding a Remarketing Date and ending at 3:00 P.M., New York City time, on the second Business Day immediately preceding such Remarketing Date, Transferring the Capital ITS that are the subject of such Contingent Disposition Election to the Securities Registrar and delivering a duly completed Notice of Contingent Disposition Election to the Securities Registrar and Custodial Agent, the Custodial Agent shall, upon such Transfer and receipt of such notice, notify the Remarketing Agent not later than 11:00 A.M., New York City time, on the Business Day immediately preceding each Remarketing Date of the aggregate principal amount of Custody Notes with respect to which elections have been validly made pursuant to this Section 8.03(a).
     (b) If the Custodial Agent is notified by the Remarketing Agent that the related Remarketing is Successful:
     (i) the Securities Registrar shall cancel the number of Capital ITS Transferred pursuant to Section 8.03(a) in accordance with the procedures provided for in Section 5.11 of the Trust Agreement;
     (ii) the Custodial Agent shall deliver Custody Notes in the aggregate principal amount with respect to which elections have been validly made pursuant to Section 8.03(a) to the Remarketing Agent on the Remarketing Settlement Date; and
     (iii) on or promptly after the Remarketing Settlement Date, the Custodial Agent will pay to the Property Trustee the net Proceeds of the Custody Notes received from the Remarketing Agent.
     (c) If the Custodial Agent is notified by the Property Trustee or the Remarketing Agent that the related Remarketing is not Successful, the Securities Registrar will disregard the delivery by such Holder of Capital ITS pursuant to Section 8.03(a), with the consequence that such Holder shall continue to hold such Capital ITS.
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     (d) None of the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar, the Property Trustee, the Company or the Remarketing Agent shall be obligated in any case to provide funds to make payment upon tender of Notes for Remarketing.
ARTICLE IX
Representations and Warranties; Covenants
     Section 9.01 Representations and Warranties.
          The Property Trustee on behalf of the Trust hereby represents and warrants to the Collateral Agent that:
     (a) the Property Trustee on behalf of the Trust has the power to grant a security interest in and lien on the Collateral; and
     (b) the Property Trustee on behalf of the Trust is the sole beneficial owner of the Collateral and, in the case of Collateral delivered in physical form, is the sole holder of such Collateral and is the sole beneficial owner of, or has the right to Transfer, the Collateral it Transfers to the Collateral Agent for credit to the Collateral Account, free and clear of any security interest, lien, encumbrance, call, liability to pay money or other restriction other than the security interest and lien granted under Article II hereof.
     Section 9.02 Covenants.
          The Property Trustee on behalf of the Trust hereby covenants to the Collateral Agent that for so long as the Collateral remains subject to the Pledge:
     (a) it will not create or purport to create or allow to subsist any mortgage, charge, lien, pledge or any other security interest whatsoever over the Collateral or any part of it other than pursuant to this Agreement; and
     (b) it will not sell or otherwise dispose (or attempt to dispose) of the Collateral or any part of it except in accordance with the terms of this Agreement.
ARTICLE X
The Collateral Agent, The Custodial Agent, The Securities Intermediary
and The Securities Registrar
          It is hereby agreed as follows:
     Section 10.01 Appointment, Powers and Immunities.
          The Collateral Agent and the Securities Intermediary shall act as agents for the Company hereunder with such powers as are specifically vested in the Collateral Agent or the Securities Intermediary, as the case may be, by the terms of this Agreement and the Collateral Agent and the Securities Intermediary owe no duties, fiduciary or otherwise, to any other Person except as provided by applicable law. The Custodial Agent and the Securities Registrar shall act as agents for the Property Trustee hereunder with such powers as are specifically vested in the Custodial Agent or the Securities
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Registrar, as the case may be, by the terms of this Agreement and, in the case of the Securities Registrar, the Trust Agreement and the Custodial Agent and the Securities Registrar owe no duties, fiduciary or otherwise, to any other Person except as provided by applicable law. The Collateral Agent, the Custodial Agent, the Securities Intermediary and the Securities Registrar shall:
     (a) have no duties or responsibilities except those expressly set forth in this Agreement and no implied covenants or obligations shall be inferred from this Agreement against the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Securities Registrar, nor shall the Collateral Agent, the Custodial Agent, the Securities Intermediary and the Securities Registrar be bound by the provisions of any agreement by any party hereto beyond the specific terms hereof;
     (b) not be responsible for any recitals contained in this Agreement, or in any certificate or other document referred to or provided for in, or received by it under, this Agreement, the Trust Preferred Securities or the Stock Purchase Contract Agreement, or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement (other than as against the Collateral Agent, the Custodial Agent or the Securities Registrar, as the case may be), the Trust Preferred Securities, any Collateral or the Stock Purchase Contract Agreement or any other document referred to or provided for herein or therein or for any failure by the Company or any other Person (except the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar, as the case may be) to perform any of its obligations thereunder or hereunder or for the validity, perfection, enforceability, priority or, except as expressly required hereby, maintenance of any security interest created hereunder;
     (c) not be required to initiate or conduct any litigation or collection efforts or proceedings hereunder (except pursuant to directions furnished under Section 10.02, subject to Section 10.08);
     (d) not be responsible for the exercise of any of the rights and remedies (at the direction of the Property Trustee or the Holders of the ITS, or otherwise) upon a default or event of default under the indenture;
     (e) not be responsible for any action taken, suffered or omitted to be taken by it hereunder or under any other document or instrument referred to or provided for herein or in connection herewith or therewith, except for its own gross negligence or willful misconduct; and
     (f) not be required to advise any party as to selling or retaining, or taking or refraining from taking any action with respect to, any securities or other property deposited hereunder.
          Subject to the foregoing, during the term of this Agreement, the Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar shall take all reasonable action in connection with the safekeeping and preservation of the Collateral and the Custody Notes hereunder as determined by industry standards.
          No provision of this Agreement shall require the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. In no event shall the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar be liable for any amount in excess of the Value of the Collateral and the Custody Notes.
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     Section 10.02 Instructions of the Company.
          The Company shall have the right, by one or more written instruments executed and delivered to the Collateral Agent, to direct the time, method and place of conducting any proceeding for the realization of any right or remedy available to the Collateral Agent, or of exercising any power conferred on the Collateral Agent, or to direct the taking or refraining from taking of any action authorized by this Agreement; provided that (i) such direction shall not conflict with the provisions of any law or of this Agreement or involve the Collateral Agent in personal liability and (ii) the Collateral Agent shall be indemnified as provided herein. Nothing contained in this Section 10.02 shall impair the right of the Collateral Agent in its discretion to take any action or omit to take any action which it deems proper and which is not inconsistent with such direction. None of the Collateral Agent, the Custodial Agent or the Securities Registrar has any obligation or responsibility for determining the necessity of filing or to file or monitor the filing of UCC financing statements or other UCC statements.
     Section 10.03 Reliance by Collateral Agent, Custodial Agent, Securities Intermediary and Securities Registrar.
          Each of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall be entitled to rely conclusively upon any certification, order, judgment, opinion, notice or other written or telephonic communication (including, without limitation, any thereof by e-mail or similar electronic means, telecopy, telex or facsimile) believed by it to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons (without being required to determine the correctness of any fact stated therein). Each of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may consult with legal counsel or other experts of its selection and the advice, opinions and statements of such legal counsel and other experts and any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon. As to any matters not expressly provided for by this Agreement, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall in all cases be fully protected in acting, suffering, or in refraining from acting, hereunder in accordance with instructions given by the Company or the Property Trustee in accordance with this Agreement. In the event any instructions are given (other than in writing at the time of the execution of the Agreement), whether in writing, by telecopier or otherwise, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar are authorized to seek confirmation of such instructions by telephone call-back to the person or persons designated on Schedule II hereto, and the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may rely upon the confirmations of anyone purporting to be the Person or Persons so designated. The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar.
          It is understood that the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar in any funds transfer may rely solely upon any account numbers or similar identifying numbers provided by the Company or the Property Trustee to identify (i) the beneficiary, (ii) the beneficiary’s bank, or (iii) an intermediary bank. The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may apply any of the deposited funds for any payment order it executes using any such identifying number, even where its use may result in a Person other than the beneficiary being paid, or the transfer of funds to a bank other than the beneficiary’s bank, or an intermediary bank, designated by the Company or the Property Trustee; provided that
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payment is made and confirmed to the account as specified by the Company or the Property Trustee, as the case may be.
     Section 10.04 Certain Rights.
     (a) Whenever in the administration of the provisions of this Agreement the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of bad faith on the part of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar, be deemed to be conclusively proved and established by a certificate signed by one of the Company’s officers, and delivered to the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar and such certificate, in the absence of bad faith on the part of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar, shall be full warrant to the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar for any action taken, suffered or omitted by any of them under the provisions of this Agreement in reliance thereon.
     (b) The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document.
     (c) None of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall be responsible or liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including, without limitation, acts of God, earthquakes, fires, floods, terrorism, wars, civil or military disturbances, sabotage, epidemics, riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communication services, accidents, labor disputes, acts of civil or military authority and governmental action.
     (d) The Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar may request that the Company and the Property Trustee each deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Agreement, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
     (e) The permissive right of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar to take or refrain from taking any actions enumerated in this Agreement shall not be construed as a duty;
     (f) None of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall be liable for any error of judgment made in good faith, unless it shall have been grossly negligent in ascertaining the pertinent facts.
     (g) The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall have no liability whatsoever for the action or inaction of any Clearing Agency or any book-entry system thereof. In no event shall any Clearing Agency or any book-entry system thereof be
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deemed an agent or subcustodian of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar. Unless and until Definitive Trust Preferred Securities Certificates have been issued to Owners pursuant to Section 5.15 of the Trust Agreement, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall be entitled to deal with the Clearing Agency for all purposes of this Agreement (including the receipt or transfer of any funds hereunder) as the Holder of the Trust Preferred Securities, shall have no obligation to the Owners and the rights of the Owners shall be exercised only through the Clearing Agency and shall be limited to those established by law and agreement between such Owners and the Trust or the Clearing Agency Participants. The provisions of Sections 5.6 and 5.11 of the Trust Agreement are hereby made applicable to the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar, mutatis mutandis, as if they were the Securities Registrar as referred to therein.
     (h) The Securities Registrar shall also have all of the rights, privileges, protections, immunities and benefits given to the Securities Registrar under the Trust Agreement, including its right to be indemnified. In the event of any conflict between any of the provisions of the Trust Agreement and this Agreement with respect to any of such rights, privileges, protections, immunities and benefits, the provisions of this Agreement shall govern and control and supersede such other provisions.
     Section 10.05 Merger, Conversion, Consolidation or Succession to Business.
          Any Person into which the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall be the successor of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.
     Section 10.06 Rights in Other Capacities.
          The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar and their Affiliates may (without having to account therefor to the Company) accept deposits from, lend money to, make their investments in and generally engage in any kind of banking, trust or other business with the Trust, any other Person interested herein and any Holder of Trust Preferred Securities (and any of their respective subsidiaries or Affiliates) as if it were not acting as the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar, as the case may be, and the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and their Affiliates may accept fees and other consideration from the Trust, any other Person interested herein and any Holder of Trust Preferred Securities without having to account for the same to the Company; provided that each of the Securities Registrar, the Securities Intermediary, the Custodial Agent and the Collateral Agent covenants and agrees with the Company that it shall not accept, receive or permit there to be created in favor of itself and shall take no affirmative action to permit there to be created in favor of any other Person, any security interest, lien or other encumbrance of any kind in or upon the Collateral other than the lien created by the Pledge.
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     Section 10.07 Non-reliance on Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar.
          None of the Securities Registrar, the Securities Intermediary, the Custodial Agent or the Collateral Agent shall be required to keep itself informed as to the performance or observance by the Trust or any Holder of Trust Preferred Securities of this Agreement, the Stock Purchase Contract Agreement, the Trust Preferred Securities or any other document referred to or provided for herein or therein or in connection herewith or therewith or to inspect the properties or books of the Trust or any Holder of Trust Preferred Securities. None of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall have any duty or responsibility to provide the Company or the Property Trustee with any credit or other information concerning the affairs, financial condition or business of the Trust or the Company or any Holder of Trust Preferred Securities (or any of their respective Affiliates) that may come into the possession of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar or any of their respective Affiliates.
     Section 10.08 Compensation and Indemnity.
          The Company agrees to:
     (a) pay the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar from time to time such compensation as shall be agreed in writing between the Company and the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar, as the case may be, for all services rendered by them hereunder;
     (b) indemnify and hold harmless the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and each of their respective directors, officers, agents and employees (collectively, the “Indemnitees”), from and against any and all claims, liabilities, losses, damages, fines, penalties and expenses (including reasonable fees and expenses of counsel) and taxes (other than those based upon, determined by or measured by the income of the Collateral Agent, the Custodial Agent and the Securities Registrar) (collectively, “Losses” and individually, a “Loss”) that may be imposed on, incurred by, or asserted against, the Indemnitees or any of them for or in respect of the Collateral Agent’s, the Securities Intermediary’s, the Custodial Agent’s and the Securities Registrar’s (i) execution and delivery of this Agreement and (ii) following any instructions or other directions upon which either the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar is entitled to rely pursuant to the terms of this Agreement; and
     (c) in addition to and not in limitation of clause (b) immediately above, indemnify and hold the Indemnitees and each of them harmless from and against any and all Losses that may be imposed on, incurred by or asserted against, the Indemnitees or any of them in connection with or arising out of the Collateral Agent’s, the Securities Intermediary’s, the Custodial Agent’s or the Securities Registrar’s acceptance or performance of its powers and duties under this Agreement, provided that any Indemnitee with respect to the specific Loss against which indemnification is sought under this clause (c) has not acted with gross negligence or engaged in willful misconduct.
          The provisions of this Section 10.08 and Section 12.07 shall survive the resignation or removal of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar and the termination of this Agreement.
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     Section 10.09 Failure to Act.
          In the event of (i) uncertainty on the part of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar as to the application of any provision in this Agreement or any other agreement relating to the transaction contemplated hereby or (ii) any ambiguity in the provisions of this Agreement or any dispute between or conflicting claims by or among the parties hereto or any other Person with respect to any funds or property deposited hereunder, such Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar in the case of (i) or each of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar in the case of (ii) shall be entitled, at its sole option and after prompt written notice to the Company and the Trust, to refrain from taking any action in respect of such uncertainty or ambiguous provision or to refuse to comply with any and all claims, demands or instructions with respect to such property or funds so long as such dispute or conflict shall continue, and the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall not be or become liable in any way to any of the parties hereto for its so refraining or refusal to comply with such conflicting claims, demands or instructions. The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall be entitled to refuse to act until either:
     (a) such ambiguous provisions or conflicting or adverse claims or demands, as the case may be, shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar; or
     (b) the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall have received security or an indemnity satisfactory to it sufficient to save it harmless from and against any and all loss, liability or reasonable out-of-pocket expense which it may incur by reason of its acting.
          The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may in addition elect to commence an interpleader action or seek other judicial relief or orders as the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar may deem necessary. Notwithstanding anything contained herein to the contrary, none of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall be required to take any action that it reasonably believes to be contrary to law or to the terms of this Agreement, or which it reasonably believes would subject it or any of its officers, employees or directors to liability.
     Section 10.10 Resignation of Collateral Agent, the Securities Intermediary, the Custodial Agent and Securities Registrar.
          Subject to the appointment and acceptance of a successor Collateral Agent, Securities Intermediary, Custodial Agent and Securities Registrar as provided below:
     (i) the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may resign at any time by giving notice thereof to the Company and the Property Trustee;
     (ii) the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may be removed at any time by the Company; and
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     (iii) if the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar fails to perform any of its material obligations hereunder in any material respect for a period of not less than 20 days after receiving written notice of such failure by the Property Trustee and such failure shall be continuing, the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar may be removed by the Property Trustee or the Administrative Trustees;
provided that any Person at any time acting as Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar may not resign or be removed in any one of those capacities without the consent of each party to this Collateral Agreement unless it resigns or is removed in all such capacities in which it is then acting. The Property Trustee shall promptly notify the Company of any removal of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar pursuant to clause (iii) of this Section 10.10. Upon any such resignation or removal, the Company shall have the right to appoint a successor Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, as the case may be, which shall not be an Affiliate of the Trust. If no successor Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Collateral Agent’s, Securities Intermediary’s, Custodial Agent’s or Securities Registrar’s giving of notice of resignation or the Company’s or the Property Trustee’s giving notice of such removal, then the retiring or removed Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar may petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar. The Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar shall each be a bank or a national banking association which has an office (or an agency office) in New York City with a combined capital and surplus of at least $50,000,000. Upon the acceptance of any appointment as Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar hereunder by a successor Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, as the case may be, such successor Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, as the case may be, shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, as the case may be, and the retiring Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, as the case may be, shall take all appropriate action, subject to payment of any amounts then due and payable to it hereunder, to transfer any money and property held by it hereunder (including the Collateral) to such successor. The retiring Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar shall, upon such succession, be discharged from its duties and obligations as Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar hereunder. After any retiring Collateral Agent’s, Securities Intermediary’s, Custodial Agent’s or Securities Registrar’s resignation or removal hereunder as Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, the provisions of this Article X shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar. Any resignation or removal of the Collateral Agent, Custodial Agent or Securities Registrar hereunder, at a time when such Person is acting as the Collateral Agent, Securities Intermediary, Custodial Agent or Securities Registrar, shall be deemed for all purposes of this Agreement as the simultaneous resignation or removal of the Collateral Agent, Securities Registrar or Custodial Agent, as the case may be.
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     Section 10.11 Right to Appoint Agent or Advisor.
          The Collateral Agent shall have the right to appoint agents or advisors in connection with any of its duties hereunder, and the Collateral Agent shall not be liable for any action taken, suffered or omitted by, or in reliance upon the advice of, such agents or advisors selected in good faith. The appointment of agents (which, for the purpose of this sentence, excludes legal counsel) pursuant to this Section 10.11 shall be subject to prior written consent of the Company, which consent shall not be unreasonably withheld.
     Section 10.12 Survival.
          The provisions of this Article X and Section 12.06 shall survive termination of this Agreement and the resignation or removal of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar.
     Section 10.13 Exculpation.
          Anything contained in this Agreement to the contrary notwithstanding, in no event shall the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar or their officers, directors, employees or agents be liable under this Agreement for indirect, special, punitive, or consequential loss or damage of any kind whatsoever, including, but not limited to, lost profits, whether or not the likelihood of such loss or damage was known to the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar, or any of them and regardless of the form of action.
     Section 10.14 Statements and Confirmations.
          The Securities Intermediary will, as soon as reasonably practicable after receipt of same, send copies of all statements, confirmations and other correspondence concerning the Collateral Account and any financial assets credited thereto simultaneously to each of the Property Trustee and the Collateral Agent at their addresses for notices under this Agreement. The Custodial Agent will, as soon as reasonably practicable after receipt of same, send copies of all statements, confirmations and other correspondence concerning the Custody Account and any financial assets credited thereto to the Property Trustee at its address for notices under this Agreement.
     Section 10.15 Tax Allocations.
          The Administrative Trustees shall report all items of income, gain, expense and loss recognized in the Collateral Account and the Custody Account, to the extent such reporting is required by law, to the Internal Revenue Service authorities in the manner required by law. None of the Securities Intermediary, the Collateral Agent, the Custodial Agent, the Securities Registrar or the Property Trustee shall have any tax reporting duties hereunder.
Collateral Agreement

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ARTICLE XI
Amendment
     Section 11.01 Amendment.
          The Company, when duly authorized by resolution of its Board of Directors, the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and the Property Trustee on behalf of the Trust, at any time and from time to time, may amend this Agreement by a written instrument, in form satisfactory to the Company, the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and the Property Trustee, as provided under Section 6.1(c) of the Trust Agreement. Notwithstanding the foregoing, any amendment to the forms of ITS certificates attached as exhibits hereto shall be effective upon written notice thereof from the Company without the consent of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar setting forth the revised form or forms and confirming that such revised form or forms have been duly adopted in accordance with the Trust Agreement; provided that no such amendment that adversely affects the rights, duties or immunities of the Collateral Agent, the Securities Intermediary, the Custodial Agent or the Securities Registrar shall be effective against such adversely affected party without its consent.
     Section 11.02 Execution of Amendments.
          In executing any amendment permitted by this Article XI, the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and the Property Trustee shall be entitled to receive and (subject to Section 8.3 of the Trust Agreement with respect to the Property Trustee) shall be fully authorized and protected in relying upon, an Opinion of Counsel and an Officers’ Certificate of the Company to the effect that all of the requirements of Section 6.1(c) of the Trust Agreement in respect of such amendment have been met and/or satisfied. The Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and the Property Trustee may, but shall not be obligated to, enter into any such amendment which affects their own respective rights, duties or immunities under this Agreement or otherwise.
ARTICLE XII
Miscellaneous
     Section 12.01 No Waiver.
          No failure on the part of the Company, the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar or any of their respective agents to exercise, and no course of dealing with respect to, and no delay in exercising, any right, power or remedy hereunder shall operate a waiver thereof; nor shall any single or partial exercise by the Company, the Securities Intermediary, the Collateral Agent, the Custodial Agent, the Securities Registrar or any of their respective agents of any right, power or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right, power or remedy. The remedies herein are cumulative and are not exclusive of any remedies provided by law.
Collateral Agreement

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     Section 12.02 Governing Law; Submission to Jurisdiction; Waiver of Trial by Jury.
          This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Company, the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and the Trust hereby submit to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and the courts of the State of New York (in each case sitting in New York County) for the purposes of all legal proceedings arising out of or relating to this Agreement or the transactions contemplated hereby. The Company, the Collateral Agent, the Securities Intermediary, the Custodial Agent, the Securities Registrar and the Trust irrevocably waive, to the fullest extent permitted by applicable law, any objection that they may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
     Section 12.03 Notices.
          All notices, requests, consents and other communications provided for herein (including, without limitation, any modifications of, or waivers or consents under, this Agreement) shall be given or made in writing (including, without limitation, by telecopy) delivered to the intended recipient at the “Address for Notices” specified below its name on the signature pages hereof or, as to any party, at such other address as shall be designated by such party in a notice to the other parties. Except as otherwise provided in this Agreement, all such communications shall be deemed to have been duly given when transmitted by telecopy or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid.
     Section 12.04 Successors and Assigns.
          This Agreement shall be binding upon and inure to the benefit of the respective successors of the Company, the Collateral Agent, the Custodial Agent, the Securities Intermediary, the Securities Registrar and the Trust.
          Nothing in this Agreement, express or implied, shall give any Person, other than the parties hereto and their permitted successors, any benefit or any legal or equitable right, remedy or claim under this Agreement.
     Section 12.05 Severability.
          If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in order to give effect to the intentions of the parties hereto as nearly as may be possible and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
Collateral Agreement

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     Section 12.06 Expenses, Etc.
          The Company agrees to reimburse the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar for:
     (a) all reasonable costs and expenses of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar (including, without limitation, the reasonable fees and expenses of counsel to the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar), in connection with (i) the negotiation, preparation, execution and delivery or performance of this Agreement and (ii) any modification, supplement or waiver of any of the terms of this Agreement;
     (b) all reasonable costs and expenses of the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar (including, without limitation, the reasonable fees and expenses of counsel) in connection with (i) any enforcement or proceedings resulting or incurred in connection with causing the Trust or the Property Trustee to satisfy its obligations under the Stock Purchase Contracts or the Stock Purchase Contract Agreement and (ii) the enforcement of this Section 12.06;
     (c) all transfer, stamp, documentary or other similar taxes, assessments or charges levied by any governmental or revenue authority in respect of this Agreement or any other document referred to herein and all costs, expenses, taxes, assessments and, subject to Section 10.01(b) and the last sentence of Section 10.01, other charges incurred in connection with any filing, registration, recording or perfection of any security interest contemplated hereby;
     (d) all reasonable fees and expenses of any agent or advisor appointed by the Collateral Agent and (except in the case of legal counsel) consented to by the Company under Section 10.11; and
     (e) any other out-of-pocket costs and expenses reasonably incurred by the Collateral Agent, the Securities Intermediary, the Custodial Agent and the Securities Registrar in connection with the performance of their duties hereunder.
     Section 12.07 Security Interest Absolute.
          All rights of the Collateral Agent and security interests hereunder, and all obligations of the Trust from time to time hereunder, shall be absolute and unconditional irrespective of:
     (a) any lack of validity or enforceability of any provision of the Stock Purchase Contracts or any other agreement or instrument relating thereto;
     (b) any change in the time, manner or place of payment of, or any other term of, or any increase in the amount of, all or any of the Obligations under the Stock Purchase Contracts, or any other amendment or waiver of any term of, or any consent to any departure from any requirement of, the Stock Purchase Contract Agreement or any Stock Purchase Contract or any other agreement or instrument relating thereto; or
     (c) any other circumstance which might otherwise constitute a defense available to, or discharge of, a borrower, a guarantor or a pledgor.
Collateral Agreement

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     Section 12.08 Notice of Termination Event.
          Upon the occurrence of a Termination Event, the Company shall deliver written notice to the Property Trustee, the Collateral Agent, the Custodial Agent and the Securities Registrar. Upon the written request of the Collateral Agent or the Securities Registrar, the Company shall inform such party whether or not a Termination Event has occurred.
     Section 12.09 Incorporation by Reference.
          In connection with its execution and performance hereunder the Property Trustee is entitled to all rights, privileges, protections, immunities, benefits and indemnities provided to it under the Trust Agreement.
     Section 12.10 No Recourse.
          It is expressly understood and agreed by the parties hereto that (a) this Agreement is executed and delivered by Wilmington Trust Company, not individually or personally but solely as Property Trustee of the Trust, in the exercise of the powers and authority conferred and vested in it, (b) each of the representations, warranties, covenants, undertakings and agreements herein made on the part of the Trust is made and intended not as personal representations, warranties, covenants, undertakings and agreements by Wilmington Trust Company but is made and intended for the purpose of binding only the Trust, (c) nothing herein contained shall be construed as creating any liability on Wilmington Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto and (d) under no circumstances shall Wilmington Trust Company be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Agreement or any other related documents.
     Section 12.11 Amendment and Restatement.
          This Agreement is an amendment and restatement of the Original Collateral Agreement and does not constitute, and is not intended by the parties to be, a novation of the Original Collateral Agreement. Without limiting the foregoing, the Pledge previously granted and effected pursuant to the Original Collateral Agreement remains and shall continue in full force and effect on and after the date hereof with the priority in effect as established in the Original Collateral Agreement. Except as expressly amended hereby, the Original Collateral Agreement shall remain and continue in full force and effect in accordance with its terms.
* * * *
          This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
Collateral Agreement

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          In Witness Whereof, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
                 
U.S. Bancorp   USB Capital IX
 
               
        By:   Wilmington Trust Company, not in its
individual capacity but solely as Property Trustee
By:
  /s/            
 
               
 
  Name:            
 
  Title:            
 
               
 
          By:   /s/
 
               
 
              Name:
 
              Title:
 
               
Address for Notices:   Address for Notices:
 
               
U.S. Bancorp   Wilmington Trust Company,
800 Nicollet Mall             as Property Trustee of
Minneapolis, Minnesota 55402             USB Capital IX
Attention: Treasury Department   Rodney Square North
Facsimile: (612) 303-1338   1100 North Market Street
        Wilmington, Delaware 19890-1600
        Attention: Corporate Trust Administration
        Facsimile: (302) 636-4140
 
               
U.S. Bank National Association,            
 
  as Collateral Agent, Securities            
 
  Intermediary, Custodial Agent and            
 
  Securities Registrar            
 
               
By:
  /s/            
 
               
 
  Name:            
 
  Title:            
 
               
Address for Notices:            
100 Wall Street, 16th Floor            
New York, New York 10005            
Attention:            
Facsimile: (212) 509-3384            
Collateral Agreement

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Exhibit A
FORM OF NORMAL ITS CERTIFICATE
     {For inclusion in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.}
     
No.                        Number of Normal ITS:                     
    CUSIP No.                     
USB Capital IX
Normal ITS
          This Normal ITS Certificate certifies that {                    } is the registered Holder of the number of Normal ITS set forth above {for inclusion in Global Certificates only - or such other number of Normal ITS reflected in the Schedule of Increases and Decreases in the Global Certificate attached hereto}. Each Normal ITS represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The Normal ITS are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Normal ITS are set forth in, and this certificate and the Normal ITS represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17, 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Normal ITS as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Depositor and Wilmington Trust Company, as Guarantee Trustee, dated as of March 17, 2006 (the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
Collateral Agreement

A-1


 

          Section 5.13(b) of the Trust Agreement provides for the procedures pursuant to which Holders of Normal ITS may exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS and Section 5.14(d) of the Trust Agreement provides for the procedures pursuant to which Holders of Normal ITS may elect to exchange Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS in the event a Remarketing is Successful. The forms of Stripping Notice and Request and Notice of Contingent Exchange Election required to be delivered in connection therewith are printed on the reverse hereof.
          A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection at the offices of the Property Trustee.
          Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereof.
          IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Normal ITS Certificate.
         
  USB CAPITAL IX, acting through one of its
     Administrative Trustees
 
 
  By:      
    Name:      
 
Date:       
Collateral Agreement

A-2


 

         
ABBREVIATIONS
          The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
                 
TEN COM:   as tenants in common
 
               
UNIF GIFT MIN ACT:
      Custodian       (cust)(minor) Under
 
               
    Uniform Gifts to Minors Act of        
         
 
               
TENANT:   as tenants by the entireties
 
               
JT TEN:   as joint tenants with right of survivorship and not as tenants in common
          Additional abbreviations may also be used though not in the above list.
          FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D.
or other Identifying Number of Assignee)
(Please print or type name and address including Postal Zip Code of Assignee)
the within Normal ITS Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney                                         , to transfer said Normal ITS Certificates on the books of U.S. Bancorp, with full power of substitution in the premises.
     
Dated:
  Signature
 
  NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Normal ITS Certificates in every particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee:
Collateral Agreement

A-3


 

FORM OF STRIPPING NOTICE AND REQUEST
U.S. Bank National Association,
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
          Re: Normal ITS of USB Capital IX
          The undersigned Holder hereby notifies you pursuant to Section 5.13(b) of the Amended and Restated Trust Agreement, dated as of March 17, 2006 and as amended as of [ • ], 2010, of USB Capital IX (as the same may be further amended from time to time, the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.02 of the Collateral Agreement, that the Holder:
     (i) is depositing the appropriate Qualifying Treasury Securities with U.S. Bank National Association, as Collateral Agent, for deposit in the Collateral Account,
     (ii) is transferring the related Normal ITS to the Securities Registrar in connection with an Exchange of such Normal ITS and Qualifying Treasury Securities for a Like Amount of Stripped ITS and Capital ITS, and
     (iii) hereby requests the delivery to the Holder of such Stripped ITS and Capital ITS.
          All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Exchange.
     
Date:
   
 
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Collateral Agreement

A-4


 

FORM OF NOTICE OF CONTINGENT EXCHANGE ELECTION
U.S. Bank National Association,
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
          Re: Normal ITS of USB Capital IX
          The undersigned Holder hereby notifies you pursuant to Section 5.14(d) of the Amended and Restated Trust Agreement, dated as of March 17, 2006 and as amended as of [ • ], 2010, of USB Capital IX (as the same may be further amended from time to time, the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 8.02 of the Collateral Agreement, that the Holder:
     (i) is depositing the appropriate Qualifying Treasury Securities with U.S. Bank National Association, as Collateral Agent, for deposit in the Collateral Account,
     (ii) is transferring the related Normal ITS to the Securities Registrar in connection with a Contingent Exchange Election of such Normal ITS and Qualifying Treasury Securities for a Like Amount of Stripped ITS and Capital ITS, and
     (iii) hereby requests the delivery to the Holder of such Stripped ITS and Capital ITS if the upcoming Remarketing is Successful, it being understood that if such Remarketing is not Successful, this Notice shall be disregarded and the Collateral Agent shall return such Qualifying Treasury Securities to the Holder promptly after the Remarketing.
          All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Contingent Exchange Election.
     
Date:
   
 
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Collateral Agreement

A-5


 

{TO BE ATTACHED TO GLOBAL CERTIFICATES}
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
             
Amount of increase in   Amount of decrease in   Number of Normal ITS    
Number of Normal ITS   Number of Normal ITS   evidenced by this Global   Signature of authorized
evidenced by this   evidenced by this Global   Certificate following such   signatory of Securities
Global Certificate   Certificate   decrease or increase   Registrar
             
Collateral Agreement

A-6


 

Exhibit B
FORM OF STRIPPED ITS CERTIFICATE
          {For inclusion in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.}
     
No.                        Number of Stripped ITS:                     
    CUSIP No.                     
USB Capital IX
Stripped ITS
          This Stripped ITS Certificate certifies that {                    } is the registered Holder of the number of Stripped ITS set forth above {for inclusion in Global Certificates only - or such other number of Stripped ITS reflected in the Schedule of Increases and Decreases in the Global Certificate attached hereto}. Each Stripped ITS represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The Stripped ITS are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Stripped ITS are set forth in, and this certificate and the Stripped ITS represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17, 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Stripped ITS as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Depositor and Wilmington Trust Company, as Guarantee Trustee, dated as of March 17, 2006 (the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
Collateral Agreement

B-1


 

          Section 5.13(d) of the Trust Agreement provides for the procedures pursuant to which Holders of Capital ITS and Stripped ITS may exchange them for Normal ITS and Qualifying Treasury Securities. The form of Recombination Notice required to be delivered in connection therewith is printed on the reverse hereof.
          A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection at the offices of the Property Trustee.
          Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereof.
          IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Stripped ITS Certificate.
         
  USB CAPITAL IX, acting through one of its
     Administrative Trustees
 
 
  By:      
    Name:      
 
Date:       
 
Collateral Agreement

B-2


 

ABBREVIATIONS
          The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
                 
TEN COM:   as tenants in common
 
               
UNIF GIFT MIN ACT:
      Custodian       (cust)(minor) Under
 
               
    Uniform Gifts to Minors Act of        
         
 
               
TENANT:   as tenants by the entireties
 
               
JT TEN:   as joint tenants with right of survivorship and not as tenants in common
          FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D.
or other Identifying Number of Assignee)
(Please print or type name and address including Postal Zip Code of Assignee)
the within Stripped ITS Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney                     , to transfer said Stripped ITS Certificates on the books of U.S. Bancorp, with full power of substitution in the premises.
     
Dated:
  Signature
 
  NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Stripped ITS Certificates in every particular, without alteration or enlargement or any change whatsoever.
Signature Guarantee:
Collateral Agreement

B-3


 

FORM OF RECOMBINATION NOTICE AND REQUEST
U.S. Bank National Association,
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
          Re: Stripped ITS and Capital ITS of USB Capital IX
          The undersigned Holder hereby notifies you pursuant to Section 5.13(d) of the Amended and Restated Trust Agreement, dated as of March 17, 2006 and as amended as of [ • ], 2010, of USB Capital IX (as the same may be further amended from time to time, the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.03 of the Collateral Agreement, that the Holder:
     (i) is transferring $                     Liquidation Amount of Stripped ITS and Capital ITS in connection with an Exchange of such Stripped ITS and Capital ITS for a Like Amount of Normal ITS and Qualifying Treasury Securities,
     (ii) hereby requests the Collateral Agent to release from the Pledge and deliver to the Holder Pledged Treasury Securities in a principal amount equal to such Liquidation Amount, and
     (iii) hereby requests the delivery to the Holder of such Normal ITS of a Like Amount.
          All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Exchange.
     
Date:
   
 
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Collateral Agreement

B-4


 

{TO BE ATTACHED TO GLOBAL CERTIFICATES}
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
             
Amount of increase in   Amount of decrease in   Number of Stripped ITS    
Number of Stripped ITS   Number of Stripped ITS   evidenced by this Global   Signature of authorized
evidenced by this   evidenced by this Global   Certificate following such   signatory of Securities
Global Certificate   Certificate   decrease or increase   Registrar
             
Collateral Agreement

B-5


 

Exhibit C
FORM OF CAPITAL ITS CERTIFICATE
          {For inclusion in Global Certificates only – THIS CERTIFICATE IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) OR ITS NOMINEE. THIS CERTIFICATE IS EXCHANGEABLE FOR CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND NO TRANSFER OF THIS CERTIFICATE (OTHER THAN A TRANSFER OF THIS CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
          UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.}
     
No.                        Number of Capital ITS:                     
    CUSIP No.                     
USB Capital IX
Capital ITS
          This Capital ITS Certificate certifies that {                    } is the registered Holder of the number of Capital ITS set forth above {for inclusion in Global Certificates only - or such other number of Capital ITS reflected in the Schedule of Increases and Decreases in the Global Certificate attached hereto}. Each Capital ITS represents a beneficial interest in USB Capital IX (the “Trust”), having a Liquidation Amount of $1,000. The Capital ITS are transferable on the books and records of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in Section 5.4 of the Trust Agreement (as defined below). The designations, rights, privileges, restrictions, preferences and other terms and provisions of the Capital ITS are set forth in, and this certificate and the Capital ITS represented hereby are issued and shall in all respects be subject to the terms and provisions of the Amended and Restated Trust Agreement of the Trust, dated as of March 17, 2006, as the same may be amended and restated from time to time (the “Trust Agreement”), including the designation of the terms of the Capital ITS as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by the Depositor and Wilmington Trust Company, as Guarantee Trustee, dated as of March 17, 2006 (the “Guarantee Agreement”). All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein.
Collateral Agreement

C-1


 

          Section 5.13(d) of the Trust Agreement provides for the procedures pursuant to which Holders of Capital ITS and Stripped ITS may exchange them for Normal ITS and Qualifying Treasury Securities and Section 5.14(f) of the Trust Agreement provides for the procedures pursuant to which Holders of Capital ITS may elect to dispose of Capital ITS in the event a Remarketing is Successful. The forms of Recombination Notice and Request and Notice of Contingent Disposition Election required to be delivered in connection therewith are printed on the reverse hereof.
          A copy of each of the Trust Agreement and the Guarantee Agreement is available for inspection at the offices of the Property Trustee.
          Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereof.
          IN WITNESS WHEREOF, the Trust acting through one of its Administrative Trustees has executed this Capital ITS Certificate.
         
  USB CAPITAL IX, acting through one of its
     Administrative Trustees
 
 
  By:      
    Name:      
 
Date:       
Collateral Agreement

C-2


 

         
ABBREVIATIONS
          The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out in full according to applicable laws or regulations:
                 
TEN COM:   as tenants in common
 
               
UNIF GIFT MIN ACT:
      Custodian       (cust)(minor) Under
 
               
    Uniform Gifts to Minors Act of        
         
 
               
TENANT:   as tenants by the entireties
 
               
JT TEN:   as joint tenants with right of survivorship and not as tenants in common
          Additional abbreviations may also be used though not in the above list.
          FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
(Please insert Social Security or Taxpayer I.D.
or other Identifying Number of Assignee)
(Please print or type name and address including Postal Zip Code of Assignee)
the within Capital ITS Certificates and all rights thereunder, hereby irrevocably constituting and appointing attorney                                         , to transfer said Capital ITS Certificates on the books of U.S. Bancorp, with full power of substitution in the premises.
     
Dated:
  Signature
 
  NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Capital ITS Certificates in every particular, without alteration or enlargement or any change whatsoever.
Collateral Agreement

C-3


 

FORM OF RECOMBINATION NOTICE AND REQUEST
U.S. Bank National Association
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
          Re: Stripped ITS and Capital ITS USB Capital IX
          The undersigned Holder hereby notifies you pursuant to Section 5.13(d) of the Amended and Restated Trust Agreement, dated as of March 17, 2006 and as amended as of [ • ], 2010, of USB Capital IX (as the same may be further amended from time to time, the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 6.03(a) of the Collateral Agreement that the Holder:
     (i) is transferring $                     Liquidation Amount of Stripped ITS and Capital ITS in connection with an Exchange of such Stripped ITS and Capital ITS for a Like Amount of Normal ITS and Qualifying Treasury Securities,
     (ii) hereby requests the Collateral Agent to release from the Pledge and deliver to the Holder Pledged Treasury Securities in a principal amount equal to such Liquidation Amount, and
     (iii) hereby requests the delivery to the Holder of such Normal ITS of a Like Amount.
          All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Exchange.
     
Date:
   
 
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Collateral Agreement

C-4


 

FORM OF NOTICE OF CONTINGENT DISPOSITION ELECTION
U.S. Bank National Association
     as Collateral Agent and Securities Registrar
100 Wall Street, 16th Floor
New York, New York 10005
          Re: Normal ITS of USB Capital IX
          The undersigned Holder hereby notifies you pursuant to Section 5.14(f) of the Amended and Restated Trust Agreement, dated as of March 17, 2006 and as amended as of [ • ], 2010, of USB Capital IX (as the same may be further amended from time to time, the “Trust Agreement”), among U.S. Bancorp, as Depositor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee, the Administrative Trustees (as named therein) and the several Holders of the Trust Securities, and Section 8.03 of the Collateral Agreement, that the Holder:
     (i) is transferring                      Capital ITS to the Securities Registrar, and
     (ii) hereby requests the payment to the Holder, if the upcoming Remarketing is Successful, of an amount in cash for each such Capital ITS equal to the proceeds of the sale of $1,000 principal amount of Notes, it being understood that if such Remarketing is not Successful, this Notice shall be disregarded.
          All capitalized terms used herein that are defined in the Trust Agreement have the meaning set forth therein. The undersigned Holder has paid all applicable fees and expenses relating to such Contingent Exchange Election.
     
Date:
   
 
   
 
  Signature Guarantee:
 
   
Please print name and address of Registered Holder:
   
 
   
Name
  Social Security or other Taxpayer Identification Number, if any
 
   
Address
   
Collateral Agreement

C-5


 

{TO BE ATTACHED TO GLOBAL CERTIFICATES}
SCHEDULE OF INCREASES AND DECREASES IN GLOBAL CERTIFICATE
The following increases or decreases in this Global Certificate have been made:
             
Amount of increase in   Amount of decrease in   Number of Capital ITS    
Number of Capital ITS   Number of Capital ITS   evidenced by this Global   Signature of authorized
evidenced by this   evidenced by this Global   Certificate following such   signatory of Securities
Global Certificate   Certificate   decrease or increase   Registrar
             
Collateral Agreement

C-6


 

Schedule I
Reference Dealers
U.S. Bank National Association
Goldman Sachs & Co.
Citigroup
Collateral Agreement

 


 

Schedule II
Contact Persons for Confirmation
     
Name   Phone Number
Kenneth D. Nelson
  (612) 303-4159
Collateral Agreement

 

EX-23.1 11 c58008exv23w1.htm EX-23.1 exv23w1
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form S-4 No. 333-xxxxxx) and related Prospectus of U.S. Bancorp for the registration of depository shares representing interests in shares of Series A Non-Cumulative Perpetual Preferred Stock and to the incorporation by reference therein of our reports dated February 26, 2010, with respect to the consolidated financial statements of U.S. Bancorp and the effectiveness of internal control over financial reporting of U.S. Bancorp incorporated by reference in its Annual Report (Form 10-K) for the year ended December 31, 2009, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
May 10, 2010

 

EX-24.1 12 c58008exv24w1.htm EX-24.1 exv24w1
Exhibit 24.1
POWER OF ATTORNEY
     KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Andrew Cecere, Lee R. Mitau and Terrance R. Dolan, and each of them, his or her true and lawful attorneys-in-fact and agents, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign one or more Registration Statements on Form S-4 of U.S. Bancorp (the “Company”), and any and all amendments thereto, including post-effective amendments, in connection with the registration under the Securities Act of 1933, as amended, of shares of preferred stock of the Company and other related securities, including, without limitation, depositary instruments evidencing interests in preferred stock, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, each acting alone, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or the substitutes for such attorneys-in-fact and agents, may lawfully do or cause to be done by virtue hereof.
     IN WITNESS WHEREOF, the undersigned has signed below as of this 20th day of April, 2010.
     
/s/ Douglas M. Baker, Jr.
  /s/ Jerry W. Levin
 
   
Douglas M. Baker, Jr., Director
  Jerry W. Levin, Director
 
   
/s/ Y. Marc Belton
  /s/ David B. O’Maley
 
   
Y. Marc Belton, Director
  David B. O’Maley, Director
 
   
/s/ Victoria Buyniski Gluckman
  /s/ O’dell M. Owens
 
   
Victoria Buyniski Gluckman, Director
  O’dell M. Owens, Director
 
   
/s/ Arthur D. Collins, Jr.
  /s/ Richard G. Reiten
 
   
Arthur D. Collins, Jr., Director
  Richard G. Reiten, Director
 
   
/s/ Joel W. Johnson
  /s/ Craig D. Schnuck
 
   
Joel W. Johnson, Director
  Craig D. Schnuck, Director
 
   
/s/ Olivia F. Kirtley
  /s/ Patrick T. Stokes
 
   
Olivia F. Kirtley, Director
  Patrick T. Stokes, Director

 

EX-99.1 13 c58008exv99w1.htm EX-99.1 exv99w1
 
Exhibit 99.1
 
LETTER OF TRANSMITTAL AND CONSENT
 
 
(COMPANY LOGO)
Offer to Exchange
Up to 1,250,000 Depositary Shares, Each Representing a 1/100th Interest in a Share of Series A
Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share
(the “Depositary Shares”)
for
Any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal ITS issued by
USB Capital IX, each with a liquidation amount of $1,000 (the “Normal ITS”)
CUSIP No. 91731K AA 8
and
Solicitation of Consents for Proposed Amendments to the Related Trust Agreement and
Junior Subordinated Indenture
 
Pursuant to the Preliminary Prospectus and Consent Solicitation Statement, dated May 10, 2010 as it may be amended and supplemented from time to time
 
 
THE EXCHANGE OFFER AND THE CONSENT SOLICITATION WILL EXPIRE AT 11:59 P.M.,
NEW YORK CITY TIME, ON JUNE 7, 2010, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED BY US (THE “EXPIRATION DATE”). TENDERS MAY BE WITHDRAWN, AND
CONSENTS MAY BE REVOKED, AT ANY TIME AT OR PRIOR TO THE EXPIRATION DATE.
 
The Information and Exchange Agent for the Exchange Offer and the Consent Solicitation is:
 
D.F. King & Co., Inc.
 
         
By Mail, Hand or Overnight Delivery:   By Facsimile
(for Eligible Institutions only):
  To Confirm Receipt, Please Call
D.F. King & Co, Inc.   (212) 809-8838   (212) 493-6996
Attn: Elton Bagley   Attn: Elton Bagley    
48 Wall Street,        
22nd Floor        
New York, New York 10005        
 
DELIVERY OF THIS LETTER OF TRANSMITTAL AND CONSENT (THIS “LETTER OF TRANSMITTAL”) TO AN ADDRESS, OR TRANSMISSION VIA A FACSIMILE NUMBER, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE INFORMATION AND EXCHANGE AGENT.
 
This Letter of Transmittal is to be used (i) if delivery of Normal ITS is to be made by book-entry transfer to an account maintained by the Information and Exchange Agent pursuant to the procedures set forth in “The Exchange Offer and Consent Solicitation — Procedures for Participating in the Exchange Offer and the Consent Solicitation” in the Preliminary Prospectus and Consent Solicitation Statement and such tender is not being made under the DTC Automated Tender Offer Program (“ATOP”), or (ii) if a holder wishes to deliver a Consent to the Proposed Amendments in the Consent Solicitation without also tendering such Normal ITS into the Exchange Offer.
 
Holders that are tendering by book-entry transfer to the Information and Exchange Agent’s account at DTC may electronically transmit their acceptance of the Exchange Offers through ATOP, for which the transaction will be eligible. DTC participants that are accepting the Exchange Offer and the Consent Solicitation must transmit their acceptances to DTC, which will then verify the acceptance of the Exchange Offer and the Consent Solicitation, and send an Agent’s Message to the Information and Exchange Agent for its acceptance.
 
You may withdraw any of the Normal ITS that you exchange or revoke any Consents (as hereinafter defined) given, at any time prior to the expiration of the Exchange Offer and the Consent Solicitation, on the terms and conditions set forth below. A valid withdrawal of the Normal ITS shall be deemed a revocation of any related Consents. However, if you


 

withdraw your Normal ITS, you may still provide Consents if your Consents are submitted in accordance with the terms and conditions of the Consent Solicitation. This Letter of Transmittal need not be completed by Holders tendering Normal ITS through ATOP (as hereinafter defined). However, this Letter of Transmittal must be completed by Holders who wish to deliver their Consents without also tendering their Normal ITS into the Exchange Offer.
 
The instructions contained herein should be read carefully before this Letter of Transmittal is completed. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Preliminary Prospectus and Consent Solicitation Statement.
 
Questions and requests for assistance relating to the procedures for tendering Normal ITS or consenting to the Proposed Amendments (as hereinafter defined) and requests for additional copies of the Preliminary Prospectus and Consent Solicitation Statement and this Letter of Transmittal may be directed to the Information and Exchange Agent at its address and telephone numbers on the back cover of this Letter of Transmittal.
 
 
A holder of Normal ITS has the following three options in connection with the Exchange Offer and the Consent Solicitation:
 
  1.  tender any or all of its Normal ITS in exchange for Depositary Shares, with one Depositary Share being exchanged for each validly tendered and accepted Normal ITS (a tender of Normal ITS pursuant to the Exchange Offer will be required to, and will be deemed to be, a delivery of Consents with respect to such Normal ITS);
 
  2.  deliver only Consents related to any or all of its Normal ITS for a cash consent fee equal to $1.25 per Normal ITS, equal to 0.125% of the liquidation amount of the Normal ITS, as to which a valid consent is delivered and not revoked at or prior to the expiration date; or
 
  3.  not tender any of its Normal ITS and not deliver Consents with respect to any of its Normal ITS.
 
 
This Letter of Transmittal, the Preliminary Prospectus and Consent Solicitation Statement (together with this Letter of Transmittal, as amended from time to time, the “Offer Documents”) constitute an offer by U.S. Bancorp (the “Company”) to exchange up to 1,250,000 Depositary Shares for any and all of the 1,250,000 outstanding Normal ITS issued by USB Capital IX (the “Trust”), on the terms and subject to the conditions set forth in the Offer Documents (the “Exchange Offer”). The Company is only tendering for Normal ITS. The Company is not tendering for Stripped ITS or Capital ITS. If you hold Stripped ITS or Capital ITS and would like to tender them for exchange pursuant to the Exchange Offer, then before tendering you must recreate Normal ITS from your Stripped ITS and Capital ITS as provided for under the terms of the amended and restated trust agreement (the “Trust Agreement”) of the Trust.
 
In connection with the Exchange Offer, we are also soliciting, upon the terms and subject to the conditions specified in the Offer Documents, consents (the “Consents”) from Holders (defined below) of at least a majority in liquidation amount of the Normal ITS (which corresponds to at least a majority of the Normal ITS) to proposed amendments (collectively, the “Proposed Amendments”) to (i) the Trust Agreement related to the Normal ITS that would allow us to retire the Normal ITS that we acquire in the Exchange Offer and to authorize the Trust to approve of the proposed amendments to the Indenture and the other documents described below, (ii) the junior subordinated indenture (the “Indenture”) pursuant to which the junior subordinated notes which currently underlie the Normal ITS were issued to make certain changes to the terms of the Indenture and the junior subordinated notes that we believe will facilitate the remarketing of the junior subordinated notes, (iii) the collateral agreement, that would allow for the Underlying Notes corresponding to the Normal ITS acquired by us in the Exchange Offer to be delivered to us for cancellation, and (iv) the stock purchase contract agreement, that would allow for the termination of the stock purchase contracts corresponding to the Normal ITS acquired by us in the Exchange Offer and for the future issuance of Preferred Stock upon settlement of the stock purchase contracts as a result of the Exchange Offer. The Proposed Amendments will be effected by the execution of an amendment to the Trust Agreement, an Eighth Supplemental Indenture to the Indenture, an amended and restated collateral agreement and an amended and restated stock purchase contract agreement, each of which is described in the Preliminary Prospectus and Consent Solicitation Statement and filed as an exhibit to the registration statement relating to the Exchange Offer.
 
Holders that validly tender their Normal ITS pursuant to the Exchange Offer will be required to, and will be deemed to have, validly delivered their Consents for the aggregate liquidation amount of Normal ITS so tendered. Holders of


2


 

Normal ITS may deliver Consents without tendering their Normal ITS by properly completing, executing and delivering this Letter of Transmittal. Holders of Normal ITS may also partially tender their Normal ITS (via ATOP or this Letter of Transmittal) and/or partially deliver Consents for Normal ITS not otherwise tendered (via this Letter of Transmittal only). A Holder may also choose to not tender any Normal ITS and to not deliver any Consents.
 
If the requisite Consents are received and Proposed Amendments become operative, holders of the Normal ITS who deliver Consents without otherwise tendering Normal ITS will be paid a cash consent fee equal to $1.25 for each Normal ITS for which Consents are properly received and not properly withdrawn at or prior to the Expiration Date (the “Consent Fee”), in accordance with the terms of the Preliminary Prospectus and Consent Solicitation Statement. The Consent Fee is equal to 0.125% of the liquidation amount of each Normal ITS. We refer to this solicitation as the “Consent Solicitation.”
 
Holders who validly tender their Normal ITS in the Exchange Offer will be deemed to have validly delivered their Consents to the Proposed Amendments in the Consent Solicitation. If the Exchange Offer is consummated, such holders will receive one Depositary Share for each Normal ITS accepted by us for exchange, and will not receive the Consent Fee or any other separate consideration for their Consent. If, however, we do not accept all validly tendered Normal ITS for exchange due to proration, such holders will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration, but such holders will still be deemed to have delivered a Consent to the Proposed Amendments with respect to such Normal ITS.
 
Our obligation to exchange Depositary Shares for the Normal ITS exchanged but not withdrawn in the Exchange Offer, and/or our obligation to pay the Consent Fee for Consents validly delivered and not revoked, is subject to a number of conditions that must be satisfied or waived by us including, among others, that the registration statement of which the Preliminary Prospectus and Consent Solicitation Statement forms a part be declared effective by the SEC, and that the remaining Normal ITS will continue to be listed on the New York Stock Exchange after the settlement date, which conditions cannot be waived by us, and that we receive valid Consents from holders of at least a majority in aggregate liquidation amount of the outstanding Normal ITS approving the Proposed Amendments. Our obligation to exchange is not subject to any minimum tender condition.
 
In accordance with the terms of the amended and restated trust agreement, voting and consensual rights of holders of Normal ITS may be exercised only by a United States person that is a beneficial owner of Normal ITS, or by a United States person acting as irrevocable agent with discretionary powers for the beneficial owner of Normal ITS that is not a United States person. A holder of Normal ITS that is not a United States person must irrevocably appoint a United States person with discretionary powers to act as their agent in order to participate in the Exchange Offer and Consent Solicitation. In order to participate in the Exchange Offer or the Consent Solicitation, holders that are not United States persons must do so through a United States person designated to act as their agent. By participating in the Exchange Offer and the Consent Solicitation, a holder of Normal ITS will be deemed to have represented that it is a United States person or, if it is not a United States person, that it has appointed a United States person to act as such holder’s agent as set forth above.
 
All of the Normal ITS were issued in book-entry form, and all of the Normal ITS are currently represented by one or more global certificates held for the account of The Depository Trust Company (“DTC”).
 
This Letter of Transmittal may be used by a DTC participant whose name appears on a security position listing such participant as the owner of the Normal ITS (each, a “Holder” and, collectively, the “Holders”) that desires to tender such Normal ITS pursuant to the Exchange Offer. Pursuant to authority granted by DTC, if you are a DTC participant that has Normal ITS credited to your DTC account, you may also directly tender your Normal ITS in the Exchange Offer as though you were a Holder of Normal ITS. DTC participants that wish to accept the Exchange Offer may tender their Normal ITS by (i) validly transmitting their acceptance to DTC through DTC’s ATOP or (ii) completing, signing and dating this Letter of Transmittal according to the instructions set forth in the Offer Documents and delivering it together with any signature guarantees and other required documents to the Information and Exchange Agent at its address set forth in this Letter of Transmittal. In addition, either:
 
  •  the Information and Exchange Agent must receive, prior to the Expiration Date, a properly transmitted Agent’s Message (as hereinafter defined); or
 
  •  the Information and Exchange Agent must receive, prior to the Expiration Date, a timely confirmation of book-entry transfer of Normal ITS into the Information and Exchange Agent’s account at DTC according to the procedure for book-entry transfer described below, this Letter of Transmittal and any other documents required by this Letter of Transmittal.


3


 

 
The Information and Exchange Agent and DTC have confirmed that the Exchange Offer is eligible for ATOP. To validly tender Normal ITS, DTC participants may, in lieu of physically completing and delivering this Letter of Transmittal and delivering it to the Information and Exchange Agent, electronically transmit their acceptance through ATOP. DTC will then verify the acceptance, execute a book-entry delivery to the Information and Exchange Agent’s account at DTC and send an Agent’s Message to the Information and Exchange Agent for its acceptance. The confirmation of a book-entry transfer into the Information and Exchange Agent’s account at DTC as described above is referred to herein as a “Book-Entry Confirmation.” Delivery of documents to DTC does not constitute delivery to the Information and Exchange Agent. The term “Agent’s Message” as used herein means a message transmitted by DTC to, and received by, the Information and Exchange Agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the DTC participant described in such Agent’s Message, stating that such participant has received and agrees to be bound by the terms and conditions of the Exchange Offer as set forth in the Offer Documents, and that the Company may enforce such agreement against such participant. DTC participants that transmit acceptance through ATOP shall be deemed to have validly delivered related Consents if such transmittance is received on or prior to the Expiration Date.
 
The undersigned acknowledges and agrees that our obligation to accept for exchange and to exchange Normal ITS validly tendered and not validly withdrawn pursuant to the Exchange Offer is subject to the conditions set forth in the Preliminary Prospectus and Consent Solicitation Statement. The undersigned recognizes that as a result of these conditions (which, except for the conditions that the registration statement, of which the Preliminary Prospectus and Consent Solicitation Statement forms a part, be declared effective by the SEC, and that the remaining Normal ITS will continue to be listed on the New York Stock Exchange after the settlement date, may be waived, in whole or in part, by us), as more particularly set forth in the Preliminary Prospectus and Consent Solicitation Statement, we may not be required to accept for exchange any of the Normal ITS tendered hereby.
 
In the event that we terminate or withdraw the Exchange Offer at or prior to the expiration date or the Exchange Offer is otherwise not completed, no consideration will be paid or become payable to holders who have tendered their Normal ITS pursuant to the Exchange Offer or delivered their Consents in the Consent Solicitation. In any such event, (1) Normal ITS previously tendered pursuant to the Exchange Offer will be promptly returned to the tendering holders and (2) the Proposed Amendments will not become operative.
 
The Exchange Offer is made upon the terms and subject to the conditions set forth in the Offer Documents. Holders should carefully review such information.
 
The Exchange Offer is not being made to, nor will tenders of Normal ITS be accepted from or on behalf of, Holders in any jurisdiction in which the making or acceptance of the Exchange Offer would not be in compliance with the laws of such jurisdiction.
 
If you choose to deliver Consents without otherwise tendering the Normal ITS, you must do so by completing this Letter of Transmittal. If your Normal ITS are held through a broker dealer, commercial bank, trust company or other nominee, you should contact such nominee promptly and instruct them to tender the Normal ITS or validly deliver the Consents on your behalf. The instructions included with this Letter of Transmittal must be followed.
 
Holders who wish to tender their Normal ITS using this Letter of Transmittal must complete the box below entitled “Method of Delivery” and complete the box below entitled “Total Number of Normal ITS Tendered and/or as to which Consents are Delivered” and sign in the appropriate box below.
 
WE ARE NOT PROVIDING FOR GUARANTEED DELIVERY PROCEDURES AND THEREFORE YOU MUST ALLOW SUFFICIENT TIME FOR THE NECESSARY TENDER PROCEDURES TO BE COMPLETED DURING NORMAL BUSINESS HOURS OF DTC ON OR PRIOR TO THE EXPIRATION DATE. IF YOU HOLD YOUR NORMAL ITS THROUGH A BROKER, DEALER, COMMERCIAL BANK, TRUST COMPANY OR OTHER NOMINEE, YOU SHOULD CONSIDER THAT SUCH ENTITY MAY REQUIRE YOU TO TAKE ACTION WITH RESPECT TO THE EXCHANGE OFFER A NUMBER OF DAYS BEFORE THE EXPIRATION DATE IN ORDER FOR SUCH ENTITY TO TENDER THE NORMAL ITS ON YOUR BEHALF ON OR PRIOR TO THE EXPIRATION DATE. TENDERS OF NORMAL ITS AND CONSENTS NOT RECEIVED BY THE INFORMATION AND EXCHANGE AGENT AT OR PRIOR TO THE EXPIRATION DATE WILL BE DISREGARDED AND OF NO EFFECT.


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TENDER OF NORMAL ITS AND DELIVERY OF CONSENTS
 
o  Check here if the undersigned is tendering Normal ITS and delivering the related Consents*
 
o  Check here if the undersigned is delivering Consents without otherwise tendering related Normal ITS*
 
  *   IMPORTANT: A Holder must check the second box above if such Holder wishes to separately deliver a Consent without also tendering its Normal ITS for exchange. If no box is checked above, but this Letter of Transmittal is executed and delivered to the Information and Exchange Agent, the undersigned will be deemed to have both tendered its Normal ITS into the Exchange Offer as to which this Letter of Transmittal relates and delivered its Consents with respect to such Normal ITS.
 
 
METHOD OF DELIVERY
 
If Normal ITS are being tendered, or Consents are being delivered, by book-entry transfer made to the account maintained by DTC, complete the following:
 
  Name of Tendering Institution:
 
  DTC Account Number:
 
  Transaction Code Number:
 
  Date Tendered/Consented:


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List below the Normal ITS to which this Letter of Transmittal relates. If the space provided below is inadequate, please provide a separately executed schedule and affix the schedule to this Letter of Transmittal. Only tenders of whole numbers of Normal ITS pursuant to the Exchange Offer will be accepted. Valid deliveries of Consents by Holders not tendering the Normal ITS related to such Consents may only be made in whole numbers of Normal ITS (each of which will correspond to a liquidation amount of $1,000). No alternative, conditional or contingent tenders will be accepted. This Letter of Transmittal need not be completed by Holders tendering Normal ITS by ATOP. This Letter of Transmittal must be completed by Holders intending to deliver Consents without otherwise tendering Normal ITS.
 
                   
DESCRIPTION OF NORMAL ITS TENDERED AND/OR CONSENTED(1)
Name(s) and Address(es) of Holder(s)
    Certificate
    Aggregate Number of Normal ITS Represented by
    Total Number of Normal ITS Tendered and/or as
(Please fill in, if blank)     Numbers(2)     Certificate(2)     to which Consents are Delivered (3)
                   
                   
                   
                   
                   
                   
                   
                   
            Total Number of Normal ITS Tendering and/or Consenting      
                   
(1) You must consent to the Proposed Amendments and to the execution and delivery of Amendment No. 1 to Trust Agreement, the Eighth Supplemental Indenture to the Indenture, the amended and restated collateral agreement and the amended and restated stock purchase agreement with respect to the Normal ITS you are tendering. Completion of this Letter of Transmittal at or prior to the Expiration Date will constitute the valid tender of all Normal ITS and the valid delivery of the related Consents with respect to all such Normal ITS.
(2) Need not be completed by book-entry holders.
(3) Unless otherwise indicated in the column labeled “Total Number of Normal ITS Tendered and/or as to which Consents are Delivered” and subject to the terms and conditions of the Exchange Offer and the Consent Solicitation, it will be assumed that (1) the entire liquidation amount represented by the Normal ITS described above is being tendered and Consents with respect thereto are being given, or (2) in relation to Consents delivered without the related Normal ITS being tendered, a Consent is being given with respect to the entire liquidation amount. A tendering Holder will be required to and will be deemed to have delivered Consents with respect to all such Normal ITS tendered.
                   
 
The names and addresses of the Holders should be printed exactly as they appear on a security position listing such participant as the owner of the Normal ITS.
 
If you do not wish to tender your Normal ITS or deliver Consents, you do not need to return this Letter of Transmittal or take any other action.


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NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
 
Ladies and Gentlemen:
 
By execution hereof, the undersigned acknowledges receipt of the Preliminary Prospectus and Consent Solicitation Statement, dated May 10, 2010 of U.S. Bancorp, and this Letter of Transmittal and Consent and instructions hereto, which together constitute the Company’s offer to exchange up to 1,250,000 Depositary Shares for any and all of the 1,250,000 outstanding Normal ITS issued by USB Capital IX and the related Consent Solicitation, on the terms and subject to the conditions set forth in the Offer Documents.
 
The undersigned agrees and acknowledges that, by the execution and delivery of this Letter of Transmittal, the undersigned grants written consent to the Proposed Amendments described in the Offer Documents and reflected in the form of amendment to Trust Agreement, the Indenture, the amended and restated collateral agreement and the amended and restated stock purchase contract agreement that are filed as exhibits to the registration statement relating to the Exchange Offer. The undersigned understands that the Consents validly delivered pursuant to the tender of the Normal ITS, or the delivery of Consents relating to Normal ITS not otherwise tendered, shall remain in full force and effect unless and until such Consents are revoked at or prior to the Expiration Date by valid delivery of a properly completed a notice of withdrawal (“Notice of Withdrawal”) in the form that accompanies this Letter of Transmittal. The undersigned understands that after the Expiration Date, no Consents may be revoked. The undersigned understands that tenders of the Normal ITS in the Exchange Offer will be deemed to constitute the delivery of Consents with respect to the Normal ITS tendered. The undersigned further understands that Holders may deliver such Consents without otherwise tendering their Normal ITS.
 
Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company number of Normal ITS indicated above and/or delivers Consents related to the Normal ITS not otherwise tendered as indicated above.
 
Subject to, and effective upon, the acceptance for exchange of, and payment for, the Normal ITS tendered with this Letter of Transmittal, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Company, all right, title and interest in and to such Normal ITS that are being tendered hereby, waives any and all other rights with respect to such Normal ITS, and releases and discharges the Company from any and all claims such Holder may now have, or may have in the future, arising out of, or related to, such Normal ITS, including, without limitation, any claims arising from any existing or past defaults, or any claims that such Holder is entitled to receive additional distributions with respect to such Normal ITS (other than any accrued and unpaid distributions up to, but excluding, the date of settlement of the Exchange Offer (the “Accrued Distributions”)) or to participate in any redemption of such Normal ITS. The undersigned hereby irrevocably constitutes and appoints the Information and Exchange Agent the true and lawful agent and attorney-in-fact of the undersigned, with full knowledge that the Information and Exchange Agent also acts as the agent of the Company, with respect to such Normal ITS, with full power of substitution and re-substitution (such power-of-attorney being deemed to be an irrevocable power coupled with an interest) to (1) transfer ownership of such Normal ITS on the account books maintained by DTC to, or upon the order of, the Company, (2) present such Normal ITS for transfer of ownership on the books of the Company, (3) receive all benefits and otherwise exercise all rights of beneficial ownership of such Normal ITS and (4) to consent to the Proposed Amendments and deliver Consents on behalf of the undersigned to the trustees under the Trust Agreement and Indenture, all in accordance with the terms of and conditions to the Exchange Offer and the Consent Solicitation as described in the Offer Documents.
 
The undersigned understands and acknowledges that the Exchange Offer will expire at 11:59 p.m., New York City time, on June 7, 2010, unless extended or earlier terminated. The undersigned understands and acknowledges that if the undersigned validly tenders but does not validly withdraw Normal ITS at or prior to the Expiration Date, the undersigned will be entitled to receive one Depositary Share for each Normal ITS which have been tendered (and not withdrawn) and which we accept for exchange as set forth in the Offer Documents and will not be entitled to the Consent Fee set forth in the Offer Documents or any other separate consideration for their tender and Consent. If, however, proration (as described in the Preliminary Prospectus and Consent Solicitation Statement under “The Exchange Offer and the Consent Solicitation — Proration”) occurs, the undersigned will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration, but will still be deemed to have delivered a Consent to the Proposed Amendments with respect to such Normal ITS.


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The undersigned understands and acknowledges that if the undersigned validly delivers Consents related to Normal ITS not otherwise tendered pursuant to the Exchange Offer at or prior to the Expiration Date, the undersigned will be entitled to receive the Consent Fee of $1.25 for each Normal ITS for which such Consents have been so delivered if the requisite Consents are received in the Consent Solicitation and the Proposed Amendments become operative. The undersigned understands and acknowledges that in order to receive the Consent Fee, the undersigned must be the owner of the Normal ITS not tendered for which Consents were delivered as of the Expiration Date.
 
Unless otherwise indicated herein under “Special Payment Instructions,” the undersigned hereby requests that Depositary Shares issued in exchange for tendered Normal ITS and/or checks for payment of any Consent Fee and/or Accrued Distributions to be made in connection with the Exchange Offer be issued to the order of the undersigned. Similarly, unless otherwise indicated herein under “Special Delivery Instructions,” the undersigned hereby requests that any Normal ITS not tendered or not accepted for exchange be credited to such DTC participant’s account. In the event that the “Special Payment Instructions” box or the “Special Delivery Instructions” box is, or both are, completed, the undersigned hereby requests that any Normal ITS not tendered or not accepted for exchange, and Depositary Shares issued in exchange for validly tendered and accepted Normal ITS, and checks for payment of any Consent Fee and/or Accrued Distributions be issued in the name(s) of and be delivered to, the person(s) at the addresses so indicated, as applicable.
 
The undersigned recognizes that the Company has no obligation pursuant to the “Special Payment Instructions” box or “Special Delivery Instructions” box to transfer any Normal ITS from the name of the Holder(s) thereof if the Company does not accept for exchange any of the Normal ITS so tendered.
 
The undersigned understands that none of the Company, the trustees, the Information and Exchange Agent or any other person, nor any of their directors or officers or agents, is under any duty to give notification of any defects or irregularities in the tender of or Normal ITS or any Consents and that none of the Company, the Information and Exchange Agent or any other person, nor any of their directors or officers or agents will incur any liability for failure to give such notification.
 
The undersigned understands that if a significant number of the Normal ITS are tendered in the Exchange Offer such that the Company believes there is any likelihood that the Normal ITS could be de-listed from the New York Stock Exchange, the Company may accept less than the total number Normal ITS tendered, and prorate the number of Normal ITS validly tendered by each holder that we accept for exchange, in order to ensure that the Normal ITS continue to be listed on the New York Stock Exchange. If the Company chooses to prorate the exchange, proration will not revoke your Consents. If the Company does not accept all of your validly tendered Normal ITS due to proration, you will still be deemed to have delivered your Consents with respect to all of your validly tendered Normal ITS, even those that are not accepted for exchange. If proration occurs, you will receive the Consent Fee with respect to all validly tendered Normal ITS that were not accepted for exchange in the Exchange Offer due to such proration. Consents which are delivered with respect to Normal ITS not otherwise tendered will not be affected by the proration and, subject to the Company receiving the requisite Consents and the Proposed Amendments becoming operative, the Company will continue to pay the Consent Fee.
 
Tenders of Normal ITS may be withdrawn or deliveries of Consents may be revoked at any time at or prior to the Expiration Date. A valid withdrawal of Normal ITS shall be deemed a revocation of any related Consent. In the event of a termination of any of the Exchange Offer, the respective tendered Normal ITS will promptly be credited to such Holder’s account through DTC and such Holder’s DTC participant, unless otherwise indicated under “Special Delivery Instructions.”
 
For a withdrawal of a tender of Normal ITS or revocation of Consents to be effective, a written or facsimile transmission of a completed notice of withdrawal or revocation in the form attached to this Letter of Transmittal must be received by the Information and Exchange Agent at or prior to the Expiration Date, by mail, fax or hand delivery or by a properly transmitted “Request Message” through ATOP. Any such notice of withdrawal or revocation must (1) specify the name of the person who tendered the Normal ITS to be withdrawn and/or delivered Consents to be revoked and the name of the DTC participant whose name appears on the security position listing as the owner of such Normal ITS, if different from that of the person who deposited the Normal ITS, (2) contain the aggregate number of Normal ITS to be withdrawn, (3) unless transmitted through ATOP, be signed by the Holder thereof in the same manner as the original signature on the Letter of Transmittal, including any required signature guarantee(s), and (4) if the Letter of Transmittal was executed by a


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person other than the DTC participant whose name appears on a security position listing as the owner of the Normal ITS, be accompanied by a properly completed irrevocable proxy that authorized such person to effect such withdrawal on behalf of such Holder.
 
The undersigned understands that tenders of Normal ITS and delivery of Consents pursuant to any of the procedures described in the Offer Documents and acceptance thereof by the Company will constitute a binding agreement between the undersigned and the Company upon the terms and subject to the conditions of the Exchange Offer and the Consent Solicitation, which agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
 
The undersigned hereby represents and warrants the following:
 
  •  the undersigned has full power and authority to tender, sell, exchange, assign and transfer the Normal ITS and/or, if applicable, to deliver any Consents with respect thereto;
 
  •  the undersigned is not the Company’s “affiliate” as defined below; and
 
  •  when the Company accepts any tendered Normal ITS for exchange, it will acquire good and marketable title thereto, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims or rights.
 
As used herein, “affiliate” means a person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
 
The undersigned has read the Preliminary Prospectus and Consent Solicitation Statement and agrees to all of the terms of the Exchange Offer and the Consent Solicitation.
 
The undersigned hereby represents and warrants that it is a United States person or, if it is not a United States person, that it has irrevocably appointed a United States person with discretionary powers to act as their agent in order to participate in the Exchange Offer and Consent Solicitation.
 
The undersigned will, upon request, execute and deliver any additional documents deemed by the Information and Exchange Agent or the Company to be necessary or desirable to complete the sale, assignment and transfer of any Normal ITS tendered thereby.
 
For purposes of the Exchange Offer, the undersigned understands that the Company will be deemed to have accepted for exchange validly tendered Normal ITS, or defectively tendered Normal ITS with respect to which the Company has waived such defect, if, as and when the Company gives oral (promptly confirmed in writing) or written notice thereof to the Information and Exchange Agent.
 
The undersigned understands that, subject to the terms and conditions of the Exchange Offer as set forth in the Offer Documents, including possible proration, the Company will accept for exchange and promptly deliver on the settlement date, Depositary Shares representing interests in Preferred Stock in exchange for validly tendered Normal ITS that were not validly withdrawn pursuant to the Exchange Offer.
 
All authority conferred or agreed to be conferred by this Letter of Transmittal shall survive the death or incapacity of the undersigned and every obligation of the undersigned under this Letter of Transmittal shall be binding upon the undersigned’s heirs, personal representatives, executors, administrators, successors, assigns, trustees in bankruptcy and other legal representatives.
 
The undersigned understands that the delivery and surrender of the Normal ITS is not effective, and the risk of loss of the Normal ITS does not pass to the Information and Exchange Agent, until receipt by the Information and Exchange Agent of (1) this Letter of Transmittal and Consent (or a manually signed facsimile thereof), properly completed and duly executed, together with all accompanying evidences of authority and any other required documents in form satisfactory to the Company, or (2)(A) timely confirmation of a book-entry transfer of such Normal ITS into the Information and Exchange Agent’s account at DTC pursuant to the procedures set forth in the Offer Documents, (B) a properly transmitted Agent’s Message through ATOP and (C) all accompanying evidences of authority and any other required documents in form satisfactory to the Company.


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PLEASE SIGN BELOW — To Be Completed By All Tendering
Holders and Consenting Holders
 
This Letter of Transmittal must be signed by the Holder, exactly as his, her, its or their name(s) appear(s) as a DTC participant on a security position listing such participant as the owner of the Normal ITS or by stock powers transmitted with this Letter of Transmittal. Endorsements on Normal ITS and signatures on stock powers by Holders not executing this Letter of Transmittal must have a guarantee by a Medallion Signature Guarantor. See Instruction 3 below. If signature is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must set forth his or her full title below under “Capacity” and submit evidence satisfactory to the Company of such person’s authority to so act. See Instruction 3 below.
 
Holder: 
(Signature of Holders(s) or Authorized Signatory)
 
Date: ­ ­, 2010
 
Name(s): 
(Please Print)
 
Capacity: 
 
Address: 
(Including Zip Code)
 
Area Code and Telephone Number: 
 
PLEASE COMPLETE SUBSTITUTE FORM W-9 HEREIN AND
SIGNATURE GUARANTEE, IF REQUIRED (See Instruction 3 below)
Certain Signatures Must be Guaranteed by a Medallion Signature Guarantor
 
(Name of Medallion Signature Guarantor)
 
(Address (including zip code) and Telephone Number (including area code) of Medallion Signature Guarantor)
 
(Authorized Signature)
 
(Printed Name)
 
(Title)
 
Date: ­ ­, 2010


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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 2, 3, 4, 5 and 6)
 
To be completed ONLY if the Depositary Shares issued in exchange for tendered Normal ITS and/or checks for payment of any Consent Fee and/or Accrued Distributions, if applicable, are to be issued to someone other than the person or persons whose signature(s) appear(s) within this Letter of Transmittal or issued to an address different from that shown in the box entitled “Total Principal Amount of Normal ITS Tendered and/or to which Consents are Delivered” within this Letter of Transmittal.
 
Pay the Depositary Shares issued in exchange for tendered Normal ITS and/or checks for payment of any Consent Fee and/or Accrued Distributions, if applicable, to:
 
Name 
(Please Print)
 
Address: 
(Including Zip Code)
 
(Taxpayer Identification Number or
Social Security Number)
(See Substitute Form W-9 herein)
 
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 2, 3, 4, 5 and 6)
 
To be completed ONLY if Normal ITS not tendered or not accepted for exchange are to be credited to someone other than the person or persons whose signature(s) appear(s) within this Letter of Transmittal.
 
Name
(Please Print)
 
Address
(Including Zip Code)
(Taxpayer Identification Number or
Social Security Number)
 
Credit un-exchanged Normal ITS delivered by book-entry transfer to the DTC account set forth below:
 
DTC Account Number: 
 
 
 


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INSTRUCTIONS
 
Forming Part of the Terms and Conditions of the Exchange Offer
 
1. Delivery of this Letter of Transmittal and Book-Entry Confirmations; Withdrawal of Tenders; Revocation of Consents. This Letter of Transmittal is to be used by each Holder to (i) tender Normal ITS through book-entry transfer to the Information and Exchange Agent’s account at DTC, if instructions are not being transferred through ATOP or (ii) deliver Consents to the Proposed Amendments in the Consent Solicitation without also tendering such Normal ITS into the Exchange Offer. The method of delivery of this Letter of Transmittal and all other required documents to the Information and Exchange Agent is at the election and risk of Holders, and delivery will be deemed made when actually received or confirmed by the Information and Exchange Agent. If such delivery is by mail, it is suggested that Holders use properly insured registered mail with return receipt requested, and that the mailing be made sufficiently in advance of the Expiration Date to permit delivery to the Information and Exchange Agent at or prior to such date. No alternative, conditional or contingent tenders of the Normal ITS or consents with respect thereto will be accepted. This Letter of Transmittal should be sent only to the Information and Exchange Agent. Delivery of documents to DTC or the Company does not constitute delivery to the Information and Exchange Agent.
 
All of the Normal ITS were issued in book-entry form, and all of the Normal ITS are currently represented by one or more global certificates held for the account of DTC. The Information and Exchange Agent and DTC have confirmed that the Exchange Offer is eligible for ATOP. To tender Normal ITS eligible for ATOP, DTC participants may, in lieu of physically completing and signing this Letter of Transmittal and delivering it to the Information and Exchange Agent, electronically transmit their acceptance through ATOP, and DTC will then verify the acceptance, execute a book-entry delivery to the Information and Exchange Agent’s account at DTC and send an Agent’s Message to the Information and Exchange Agent for its acceptance. The confirmation of a book-entry transfer into the Information and Exchange Agent’s account at DTC as described above is referred to herein as a “Book-Entry Confirmation.” Delivery of documents to DTC does not constitute delivery to the Information and Exchange Agent. The term “Agent’s Message” as used herein means a message transmitted by DTC to, and received by, the Information and Exchange Agent and forming a part of the Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the DTC participant described in such Agent’s Message, stating that such participant has received and agrees to be bound by the terms and conditions of the Exchange Offer as set forth in the Offer Documents, and that the Company may enforce such agreement against such participant.
 
Holders desiring to tender Normal ITS on the Expiration Date through ATOP should note that such Holders must allow sufficient time for completion of the ATOP procedures during the normal business hours of DTC.
 
All tendering Holders, by execution of this Letter of Transmittal or a facsimile hereof, or delivery of an Agent’s Message through ATOP, waive any right to receive notice of the acceptance of their Normal ITS for exchange.
 
If you choose to deliver Consents without otherwise tendering the Normal ITS, you must do so by completing this Letter of Transmittal. If your Normal ITS are held through a broker dealer, commercial bank, trust company or other nominee, you should contact such nominee promptly and instruct them to tender the Normal ITS or validly deliver the Consents on your behalf. The instructions included with this Letter of Transmittal must be followed.
 
Holders who wish to exercise their right of withdrawal with respect to the Exchange Offer or their right to revoke any delivered Consents must give written notice of withdrawal or revocation in the form attached to this Letter of Transmittal, delivered by mail, hand delivery or manually signed facsimile transmission, or (with respect to tendered Normal ITS only) a properly transmitted “Request Message” through ATOP, which notice must be received by the Information and Exchange Agent at its address set forth on the back cover of this Letter of Transmittal at or prior to the Expiration Date. In order to be valid, a notice of withdrawal or revocation must be in the form specified in the Offer Documents. A valid withdrawal of Normal ITS shall be deemed a revocation of any related Consent. Holders may not rescind withdrawals of tendered Normal ITS. However, validly withdrawn Normal ITS may be retendered by following the procedures therefor described elsewhere in the Offer Documents at any time at or prior to the Expiration Date.
 
2. Partial Tenders and Partial Consents. If less than the entire amount of any Normal ITS is tendered, the tendering Holder must complete the number of Normal ITS tendered in the column of the box entitled “Description of Normal ITS Tendered and/or Consented” herein. The entire number of all Normal ITS transferred to the Information and Exchange Agent will be deemed to have been tendered, unless otherwise indicated. If the entire number of all Normal ITS


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is not tendered or not accepted for exchange, such untendered or unaccepted number of Normal ITS will be returned by credit to the account at DTC designated herein, unless otherwise provided in the appropriate box on this Letter of Transmittal, promptly after the settlement date. In addition, Holders may deliver Consents for the any Normal ITS not tendered by this Letter of Transmittal or ATOP by indicating the number of Normal ITS for which Consents are being delivered in the appropriate box on this Letter of Transmittal.
 
3. Signatures on this Letter of Transmittal; Guarantee of Signatures. This Letter of Transmittal must be signed by the DTC participant whose name is shown as the owner of the Normal ITS tendered hereby or for which Consents are being delivered and the signature must correspond with the name shown on the security position listed as the owner of the Normal ITS.
 
If any of the Normal ITS tendered or Consented hereby are registered in the name of two or more Holders, all such Holders must sign this Letter of Transmittal. If any Normal ITS tendered or Consented hereby are registered in different names, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal and any necessary accompanying documents as there are different names.
 
A Holder does not need to provide a separate stock power if:
 
  •  this Letter of Transmittal is signed by the Holder;
 
  •  any Normal ITS that is not tendered or not accepted for exchange or any Depositary Shares issued in exchange for validly tendered and accepted Normal ITS is to be credited to the account of the Holder at DTC; and
 
  •  any checks for payment of any Consent Fee and/or Accrued Distributions to be made in connection with the Exchange Offer and the Consent Solicitation, as the case may be, are to be issued to the order of the Holder.
 
In any case other than those listed above, the Holder must transmit a separate properly completed stock power with this Letter of Transmittal exactly as the name(s) of the Holder(s) appear(s) on such DTC participant’s security position listing, with the signature on the endorsement or stock power guaranteed by a Medallion Signature Guarantor, unless such stock powers are executed by a Medallion Signature Guarantor.
 
If this Letter of Transmittal or stock powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Company and the Information and Exchange Agent of their authority so to act must be submitted with this Letter of Transmittal.
 
Signatures on stock powers provided in accordance with this Instruction 3 by Holders not executing this Letter of Transmittal must be guaranteed by a Medallion Signature Guarantor.
 
No signature guarantee is required for the tender or withdrawal of Normal ITS or for the delivery or revocation of separate Consents relating to Normal ITS if (a) this Letter of Transmittal is signed by a DTC participant whose name appears on a security position listing as the owner of the Trust Preferred Securities and neither the “Special Payment Instructions” box nor the “Special Delivery Instructions” box of this Letter of Transmittal has been completed or (b) such Normal ITS are tendered or Consented for the account of a member firm of a registered national securities exchange, a member of the Financial Industry Regulatory Authority, Inc. or a commercial bank, trust company or other nominee having an office or correspondent in the United States. In all other cases, all signatures on Letters of Transmittal and signatures on stock powers, if any, accompanying Normal ITS must be guaranteed by a recognized participant in the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program (a “Medallion Signature Guarantor”).
 
4. Special Payment and Special Delivery Instructions. Tendering Holders should indicate in the applicable box or boxes the name and address to which Normal ITS not tendered or not accepted for exchange, Depositary Shares issued in exchange for validly tendered and accepted Normal ITS, and checks for payment of any Consent Fee and/or Accrued Distributions to be made in connection with the Exchange Offer and the Consent Solicitation, as the case may be, are to be issued or sent, if different from the name and address of the Holder signing this Letter of Transmittal. In the case of issuance in a different name, the taxpayer identification number or social security number (collectively, the “TIN”) of the person named must also be indicated and satisfactory evidence of the payment of transfer taxes or exemption therefrom must be submitted. If no instructions are given (a) delivery of the Depositary Shares issued in exchange for tendered


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Normal ITS and checks for payment of any Consent Fee and/or Accrued Distributions to be made in connection with the Exchange Offer and the Consent Solicitation, as the case may be, will be made to and (b) Normal ITS not tendered or not accepted for exchange will be credited back to, such DTC participant’s account. The Company has no obligation pursuant to the “Special Payment Instructions” box or “Special Delivery Instructions” box to transfer any Normal ITS from the name of the Holder(s) thereof if the Company does not accept for exchange any of such Normal ITS or if the Holder(s) does not present satisfactory evidence of payment of any taxes that may be payable as a consequence of the payment or delivery requested by the Holder(s) completing the “Special Payment Instructions” and/or “Special Delivery Instructions” boxes.
 
5. TIN and Backup Withholding. U.S. federal income tax law generally requires that a tendering Holder whose tendered Normal ITS are accepted for exchange must provide the Information and Exchange Agent (as payor) with such Holder’s correct TIN, which, in the case of a Holder who is an individual, is generally such Holder’s social security number, or otherwise establish an exemption from backup withholding. Additionally, a Holder of Normal ITS who delivers the Consent without tendering such Holder’s Normal ITS must also provide the Information and Exchange Agent (as payor of the Consent Fee) with such Holder’s correct TIN. If the Information and Exchange Agent is not provided with the correct TIN or an adequate basis for an exemption, such Holder may be subject to a $50 penalty imposed by the Internal Revenue Service (the “IRS”) and backup withholding in an amount equal to 28% of the amount of any reportable payments pursuant to the Exchange Offer. If withholding results in an overpayment of taxes, a refund may be obtained, provided that the required information is timely furnished to the IRS.
 
To prevent backup withholding, each tendering Holder that is a U.S. person must provide such Holder’s correct TIN by completing the Substitute Form W-9 set forth herein, certifying that the TIN provided is correct (or that such Holder is awaiting a TIN) and that (a) the Holder is exempt from backup withholding, (b) the Holder has not been notified by the IRS that such Holder is subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified the Holder that such Holder is no longer subject to backup withholding. Such Holder must also certify that such Holder is a “U.S. person” as defined under the Internal Revenue Code of 1986, as amended, and applicable Treasury regulations.
 
If a Holder that is a U.S. person does not have a TIN, such Holder should consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the “Guidelines”) for directions on applying for a TIN, write “Applied For” in the space for the TIN in Part I of the Substitute Form W-9 attached herein, and sign and date the Substitute Form W-9. If the Holder does not provide such Holder’s TIN to the Information and Exchange Agent by the date any reportable payments are due, the payments will be subject to backup withholding at a rate of 28%. Note: Writing “Applied For” on the form means that the Holder has already applied for a TIN or that such Holder intends to apply for one in the near future.
 
If the Normal ITS are held in more than one name or are not in the name of the actual owner, consult the Guidelines for information on which TIN to report.
 
Exempt Holders (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt Holder that is a U.S. person should check the box titled “Exempt from backup withholding” after the name and address lines of Substitute Form W-9. See the Guidelines for additional directions. In order for a nonresident alien or foreign entity to qualify as exempt, such person must submit a completed applicable IRS Form W-8BEN, W-8ECI, W-8EXP or W-8IMY, as the case may be, signed under penalties of perjury attesting to such exempt status. Such form may be obtained from the Information and Exchange Agent or the IRS at its website: http://www.irs.gov. However, although a nonresident alien or foreign entity is generally exempt from backup withholding, a nonresident alien or foreign entity who holds Normal ITS may nevertheless be subject to United States federal withholding tax at a rate of 30% with respect to the Consent Fee or accrued Contract Payments, except to the extent (i) a United States tax treaty either eliminates or reduces such withholding tax with respect to the Consent Fee or accrued Contract Payments paid to the nonresident alien or foreign entity and the nonresident alien or foreign entity provides a properly executed IRS Form W-8BEN or (ii) the nonresident alien or foreign entity is engaged in the conduct of a trade or business in the United States with which the receipt of the Consent Fee or accrued Contract Payments effectively connected and provides a properly executed IRS Form W-8ECI. Exempt Holders and nonresident aliens and foreign entities should consult their tax advisors regarding the applicability of the information reporting and back-up withholding rules to them as well as the availability of a refund of any United States federal withholding tax.

14


 

 
6. Transfer Taxes. The Company will pay all transfer taxes applicable to the exchange and transfer of Normal ITS pursuant to the Exchange Offer, except if the delivery of the Depositary Shares and payment of any Consent Fee and/or Accrued Distributions is being made to, or if Normal ITS not tendered or not accepted for payment are registered in the name of, any person other than the holder of Normal ITS tendered thereby or Normal ITS are credited in the name of any person other than the person(s) signing the Letter of Transmittal or electronically transmitting acceptance through ATOP, as applicable; then, in such event, delivery and payment shall not be made unless satisfactory evidence of the payment of such taxes or exemption therefrom is submitted.
 
7. Irregularities. All questions as to the form of all documents and the validity,form, eligibility (including time of receipt), acceptance of tenders and withdrawals of Normal ITS and delivery and revocation of Consents will be determined by the Company, in its sole discretion, which determination shall be final and binding absent a finding to the contrary by a court of competent jurisdiction. Alternative, conditional or contingent tenders or Consents will not be considered valid. The Company reserves the absolute right to reject any or all tenders of Normal ITS and deliveries of Consents that are not in proper form or the acceptance of which would, in the opinion of the Company’s counsel, be unlawful or result in a breach of contract. The Company also reserves the right to waive any defects, irregularities or conditions of tender of Normal ITS or delivery of Consents. A waiver of any such defect or irregularity with respect to the tender of Normal ITS or Consents of any liquidation amount of Normal ITS shall not constitute a waiver of the same or any other defect or irregularity with respect to the tender or Consents of any other Normal ITS except to the extent the Company may otherwise so provide. The Company’s interpretations of the terms and conditions of the Exchange Offer, including the instructions in this Letter of Transmittal, will be final and binding. No tender of Normal ITS or Consents with respect thereto will be deemed to have been validly made until all defects or irregularities with respect to such Normal ITS have been cured or waived by the Company. All tendering Holders, by execution of this Letter of Transmittal or a facsimile hereof, waive any right to receive notice of the acceptance of their Normal ITS for exchange. None of the Company, the trustees, the Information and Exchange Agent or any other person will be under any duty to give notice of any defects or irregularities in tenders of Normal ITS or will incur any liability for failure to give any such notice.
 
8. Waiver of Conditions. The Company expressly reserves the absolute right, in its sole discretion, to amend or waive any of the conditions to the Exchange Offer in the case of any Normal ITS tendered, in whole or in part, at any time and from time to time, except the requirements that the registration statement, relating to the Exchange Offer be declared effective by the SEC, and that the remaining Normal ITS will continue to be listed on the New York Stock Exchange after the settlement date of the Exchange Offer.
 
9. Requests for Assistance or Additional Copies. Questions and requests for assistance relating to the procedures for tendering Normal ITS or delivering the Consents and requests for additional copies of the Exchange Offer and the Consent Solicitation and this Letter of Transmittal may be directed to the Information and Exchange Agent at the address and telephone numbers on the back cover of this Letter of Transmittal.

15


 

TO BE COMPLETED BY ALL TENDERING U.S. HOLDERS OF SECURITIES
 
                   
PAYER’S NAME: D.F. KING & CO., INC.
Name (if in joint names, list first and circle the name of the person or entity whose number you enter in Part I as provided in the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the “Guidelines”))
                   
Business Name (Sole proprietors, see the instructions in the enclosed Guidelines)
                   
Check appropriate box:     o Individual/Sole Proprietor     o Corporation
o Partnership
o Limited Liability Company. Enter the tax classification (D=disregarded entity, C=corporation, P=partnership)
o Other
    Exempt from backup withholding o
                   
Address                  
                   
SUBSTITUTE
FORM W-9
          Part I-TIN Enter your TIN in the appropriate box at right. (For most individuals, this is your social security number. If you do not have a number, see Obtaining a Number in the enclosed Guidelines). Certify by signing and dating below.    
Social security number


OR Employer identification number
Payer’s Request for Taxpayer Identification Number (“TIN”) and Certification           Note: If the account is in more than one name, see chart in the enclosed Guidelines to determine which number to enter.    

OR If awaiting TIN write “Applied For”
                   
Part II-Certification-Under penalties of perjury, I certify that:      
 
(1) The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and
(2) I am not subject to backup withholding because (a) I am exempt from backup withholding, or (b) I have not been notified by the IRS that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and
(3) I am a U.S. person (including a U.S. resident alien).
Certification Instructions: You must cross out item (2) above if the IRS has notified you that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. However, if after being notified by the IRS that you were subject to backup withholding you received another notification from the IRS that you are no longer subject to backup withholding, do not cross out item (2). (Also see instructions in the enclosed Guidelines.)
                   
The IRS does not require your consent to any provision of this document other than the certifications required to avoid backup withholding.
       
SIGNATURE ­ ­     DATE ­ ­ , 2010
                   
 
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE “APPLIED FOR” IN PART I OF THIS SUBSTITUTE FORM W-9

16


 

 
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
 
I certify under penalties of perjury that a taxpayer identification number has not been issued to me, and either (a) I have mailed or delivered an application to receive a taxpayer identification number to the appropriate Internal Revenue Service Center or Social Security Administration Office or (b) I intend to mail or deliver such application in the near future. I understand that, notwithstanding the information I provided in Part II of the Substitute Form W-9 (and the fact that I have completed this Certificate of Awaiting Taxpayer Identification Number), all reportable payments made to me will be subject to a 28% backup withholding tax unless I provide a properly certified taxpayer identification number.
 
Signature: ­ ­ Date:  ­ ­, 2010
 
 
NOTE:  FAILURE TO COMPLETE AND RETURN THE SUBSTITUTE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING TAX OF 28% OF ANY REPORTABLE PAYMENTS MADE TO YOU PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 AND CONTACT YOUR TAX ADVISOR FOR ADDITIONAL DETAILS.


17


 

 
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER
ON SUBSTITUTE FORM W-9
 
Guidelines for Determining the Proper Identification Number to Give the Payer. Social security numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer identification numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the number to give the Company.
 
           
    Give the TAXPAYER
          IDENTIFICATION number
For this type of account   of —
1.
    An individual’s account   The individual
2.
    Two or more individuals (joint account)   The actual owner of the account or, if combined funds, the first individual on the account (1)
3.
    Custodian account of a minor (Uniform Gift to Minors Act)   The minor (2)
4.
   
a.  The usual revocable savings trust account (grantor is also trustee)
  The grantor-trustee (1)
     
b.  So-called trust account that is not a legal or valid trust under state law
  The actual owner (1)
5.
    Sole proprietorship account or single owner limited liability company (“LLC”)   The owner (3)
6.
    Disregarded entity not owned by an individual   The owner
           
7.
    A valid trust, estate, or pension trust   The legal entity (Do not furnish the identifying number of the personal representative or trustee unless the legal entity itself is not designated in the account title) (4)
8.
    Corporation or LLC electing corporate status on Form 8832   The corporation
9.
    Association, club, religious, charitable, education, or other tax exempt organization   The organization
10.
    Partnership or multimember LLC not electing corporate status on Form 8832   The partnership
11.
    A broker or registered nominee   The broker or registered nominee
12.
    Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments   The public entity
           
(1) List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that person’s number must be furnished.
(2) Circle the minor’s name and furnish the minor’s social security number.
(3) You must show your individual name and you may also enter your business or “DBA” name on the “Business Name” line. You may use either your social security number or employer identification number (if you have one). If you are a sole proprietor, the IRS encourages you to use your social security number.
(4) List first and circle the name of the legal trust, estate, or pension trust.
 
Note:   If no name is circled when there is more than one name listed, the number will be considered to be that of the first name listed.


18


 

 
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Page 2
 
Obtaining a Number
 
If you do not have a taxpayer identification number or you do not know your number, obtain Form SS-5, Application for a Social Security Number Card, Form W-7, Application for an IRS Individual Taxpayer Identification Number, or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service, from http://www.irs.gov or by calling 1-800-TAX-FORM and apply for a number.
 
Payees Exempt From Backup Withholding
 
Payees specifically exempted from backup withholding on ALL payments include the following:
 
  •  An organization exempt from tax under section 501 (a) of the Internal Revenue Code of 1986, as amended (the “Code”), an individual retirement arrangement (“IRA”), or a custodial account under section 403(b)(7) of the Code if the account satisfies the requirements of section 401(f)(2) of the Code.
 
  •  The United States or any of its agencies or instrumentalities.
 
  •  A state, the District of Columbia, a possession of the United States, or any of their political subdivisions or instrumentalities.
 
  •  A foreign government, or any of its political subdivisions, agencies, or instrumentalities.
 
  •  An international organization or any of its agencies or instrumentalities.
 
Other payees that may be exempt from backup withholding include the following:
 
  •  A corporation.
 
  •  A foreign central bank of issue.
 
  •  A dealer in securities or commodities required to register in the United States, the District of Columbia or a possession of the United States.
 
  •  A futures commission merchant registered with the Commodity Futures Trading Commission.
 
  •  A real estate investment trust.
 
  •  An entity registered at all times during the tax year under the Investment Company Act of 1940.
 
  •  A common trust fund operated by a bank under section 584(a) of the Code.
 
  •  A financial institution.
 
  •  A middleman known in the investment community as a nominee or custodian.
 
  •  A trust exempt from tax under section 664 of the Code or described in section 4947 of the Code.
 
Payments of interest not generally subject to backup withholding include the following:
 
  •  Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer’s trade or business and you have not provided your correct taxpayer identification number to the payer.
 
  •  Payments described in section 6049(b)(5) of the Code to non-resident aliens.
 
  •  Payments made by certain foreign organizations.
 
Exempt payees described above should file Substitute Form W-9 to avoid possible erroneous backup withholding. ENTER YOUR NAME (as described above), CHECK THE APPROPRIATE BOX FOR YOUR STATUS, CHECK THE BOX TITLED “EXEMPT FROM BACKUP WITHHOLDING,” SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER.
 
Certain payments other than interest, dividends, and patronage dividends that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under sections 6041, 6041A, 6042, 6045, 6049, 6050A, and 6050N of the Code.
 
Privacy Act Notice — Section 6109 of the Code requires most recipients to provide your correct taxpayer identification number to persons who must file information returns with the IRS to report interest, dividends, and certain other income paid to you, mortgage interest you paid, the acquisition or abandonment of secured property, cancellation of debt, or contributions you made to an IRA, or Archer MSA or HSA. The IRS uses the numbers for identification purposes and to help verify the accuracy of your tax return. The IRS may also provide this information to the Department of Justice for civil and criminal litigation, and to cities, states, the District of Columbia, and U.S. possessions to carry out their tax laws. The IRS may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism.
 
You must provide your taxpayer identification number whether or not you are required to file a tax return. Payers must generally withhold 28% of taxable interest, dividends, and certain other payments to a payee who does not give a taxpayer identification number to a payer. Certain penalties may also apply.
 
Penalties
 
(1) Penalties for Failure to Furnish Taxpayer Identification Number — If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
 
(2) Civil Penalty for False Information With Respect to Withholding — If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500.
 
(3) Criminal Penalty for Falsifying Information — Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
 
(4) Misuse of Taxpayer Identification Number — If the requester discloses or uses taxpayer identification numbers in violation of federal law, the requester may be subject to civil and criminal penalties.
 
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE.
 


19


 

The Information and Exchange Agent for the Exchange Offer and the Consent Solicitation is:
 
D.F. King & Co., Inc.
 
             
By Mail, Hand or Overnight
Delivery:

D.F. King & Co, Inc.
Attn: Elton Bagley
48 Wall Street,
22nd Floor
New York, New York 10005
    By Facsimile
(for Eligible Institutions only):

(212) 809-8838
Attn: Elton Bagley
    To Confirm Receipt, Please Call


(212) 493-6996
 
Any questions or requests for assistance may be directed to the Information and Exchange Agent at its telephone numbers as set forth below. Any requests for additional copies of the Exchange Offer and the Consent Solicitation, this Letter of Transmittal or related documents may be directed to the Information and Exchange Agent. A holder may also contact such holder’s broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Exchange Offer.
 
D.F. King & Co., Inc.
Banks & Brokers call: (212) 269-5550
Toll-Free: (800) 848-2998
Email: USB@dfking.com


20

EX-99.2 14 c58008exv99w2.htm EX-99.2 exv99w2
 
Exhibit 99.2
 
NOTICE OF WITHDRAWAL AND REVOCATION
 
LOGO
 
Offer to Exchange
Up to 1,250,000 Depositary Shares, Each Representing a 1/100th Interest in a Share of Series A
Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share
(the “Depositary Shares”)
for
Any and all of the 1,250,000 outstanding 6.189% Fixed-to-Floating Rate Normal ITS issued by USB Capital IX, each with a liquidation amount of $1,000 (the “Normal ITS”)
CUSIP No. 91731K AA 8
and
Solicitation of Consents for Proposed Amendments to the Related Trust Agreement and
Junior Subordinated Indenture

Pursuant to the Preliminary Prospectus and Consent Solicitation Statement, dated May 10, 2010 as it may be amended and supplemented from time to time
 
THE EXCHANGE OFFER AND THE CONSENT SOLICITATION WILL EXPIRE AT 11:59 P.M.,
NEW YORK CITY TIME, ON JUNE 7, 2010, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED BY US (THE “EXPIRATION DATE”). TENDERS MAY BE WITHDRAWN, AND
CONSENTS MAY BE REVOKED, AT ANY TIME AT OR PRIOR TO THE EXPIRATION DATE.
 
 
The undersigned acknowledges receipt of the Preliminary Prospectus and Consent Solicitation Statement dated May 10, 2010 (together with the related Letter of Transmittal and Consent, the “Offer Documents”) of U.S. Bancorp (the “Company”), a Delaware corporation, for (i) the Company’s offer to exchange up to 1,250,000 Depositary Shares for any and all of the 1,250,000 outstanding Normal ITS issued by USB Capital IX , on the terms and subject to the conditions set forth in the Offer Documents (the “Exchange Offer”) and (ii) the solicitation of consents (the “Consents”) from holders of at least a majority in liquidation amount of the Normal ITS (which corresponds to at least a majority of the Normal ITS) (the “Consent Solicitation”) to proposed amendments to the amended and restated trust agreement related to the Normal ITS, the junior subordinated indenture for the junior subordinated notes underlying the Normal ITS and the collateral agreement and stock purchase contract agreement relating to the Normal ITS. All withdrawals of Normal ITS previously tendered in the Exchange Offer (as defined in the Offer Documents) and/or revocations of Consents previously given in the Consent Solicitation (as defined in the Offer Documents) must comply with the procedures described in the Preliminary Prospectus and Consent Solicitation Statement under “The Exchange Offer and Consent Solicitation — Withdrawal of Tenders” and/or “— Withdrawal of Consents with Respect to Normal ITS that were not Tendered,” as appropriate.


 

The undersigned has identified in the table below the number of Normal ITS that are being withdrawn from the Exchange Offer or with respect to which Consents are being revoked from the Consent Solicitation hereby:
 
             
      Number of Normal ITS
    Date(s) Tendered
      Withdrawn/
    and/or
      Consents Revoked     Consents were Given:
Withdrawal of Normal ITS previously tendered*
           
             
Revocation of Consents for which Normal ITS were not Tendered
           
             
 
 
* If any Normal ITS were tendered or consents delivered through The Depository Trust Company (DTC), please provide the DTC Participant Number. This form should only be used for withdrawals of Normal ITS delivered through DTC if the undersigned needs to withdraw Normal ITS on the final day of the exchange offer and withdrawal through DTC is no longer available. Otherwise, the DTC form of withdrawal should be used for such Normal ITS.


2


 

The undersigned acknowledges and agrees that any withdrawal of a tender of Normal ITS shall also constitute a revocation of Consents with respect thereto.
 
You may transmit this Notice of Withdrawal and Revocation to the Information and Exchange Agent, D.F. King & Co., Inc., at the address listed on the back of the Letter of Transmittal.
 
This Notice of Withdrawal and Revocation must be signed on the following page by the registered holder(s) of the Normal ITS tendered or for which Consents were delivered as its or their names appear on the certificate(s) or on a security position listing or by person(s) authorized to become registered holder(s) by endorsements and documents transmitted with the letter of transmittal used to tender such securities. If signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, please set forth the full title of such persons.
 
Name(s): ­ ­
 
Account Number(s): ­ ­
 
Signature(s): ­ ­
 
Capacity (full title): ­ ­
 
Address (including Zip Code): ­ ­
 
Area Code and Telephone Number: ­ ­
 
Tax Identification or Social Security No.: ­ ­
 
Dated: ­ ­, 2010
 
DTC Participant Number (applicable for Normal ITS tendered through DTC only)
 
The Company will determine all questions as to the validity, form and eligibility (including time of receipt) of any notice of withdrawal, including this Notice of Withdrawal and Revocation, in its sole discretion, and its determination shall be final and binding. None of the Company, the Information and Exchange Agent (each as defined in the Offer Documents) or any other person is under any duty to give notice of any defects or irregularities in any notice of withdrawal and none of them will incur any liability for failure to give any such notice.


3

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