-----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, Dd1RId0FO9smc4px44nkxjVsfFbMiS+Bkry+7YdazUZcLbPbxnT3c6scSihUhOSM HAOeV1SJ0a/wzNNS3ECJkg== 0001047469-98-013686.txt : 19980406 0001047469-98-013686.hdr.sgml : 19980406 ACCESSION NUMBER: 0001047469-98-013686 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19980401 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980403 SROS: NYSE 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: 8-K SEC ACT: SEC FILE NUMBER: 000-22363 FILM NUMBER: 98587049 BUSINESS ADDRESS: STREET 1: FIRST BANK PL STREET 2: 601 SECOND AVE S CITY: MINNEAPOLIS STATE: MN ZIP: 55402-4302 BUSINESS PHONE: 6129731111 MAIL ADDRESS: STREET 1: 601 2ND AVENUE SOUTH-FIRST BANK PLACE STREET 2: 601 2ND AVENUE SOUTH-FIRST BANK PLACE CITY: MINNEAPOLIS STATE: MN ZIP: 55402-4302 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 8-K 1 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------ FORM 8-K CURRENT REPORT filed pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported): April 1, 1998 U.S. BANCORP - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 1-6880 41-0255900 - -------------------------------------------------------------------------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) 601 Second Avenue South, Minneapolis, Minnesota 55402 - -------------------------------------------------------------------------------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (612) 973-1111 ----------------------------- N/A - -------------------------------------------------------------------------------- (Former name or former address, if changed since last report.) Item 5. OTHER EVENTS. U.S. Bancorp, a Delaware corporation (the "Company") and USB Capital II, a business trust formed under the laws of the state of Delaware (the "Trust"), have entered into the U.S. Bancorp Underwriting Agreement Standard Provisions (Capital Securities) (March 25, 1998), as incorporated by reference to the Underwriting Agreement dated March 25, 1998, with Merrill Lynch, Pierce, Fenner & Smith Incorporaed, Piper Jaffray Inc., Dain Rauscher Incorporated, Morgan Stanley & Co. Incorporated, Prudential Securities Incorporated and Smith Barney Inc. for the public offering of $350,000,000 aggregate principal amount of the Trust's 7.20% Trust Originated Preferred Securities (liquidation amount $25 per Preferred Security) (the "Preferred Securities") representing preferred beneficial interests in the Trust. The Preferred Securities will be fully, irrevocably and unconditionally guaranteed on a subordinated basis by the Company pursuant to a Guarantee Agreement dated April 1, 1998 (the "Guarantee") between the Company and Wilmington Trust Company, as Guarantee Trustee. The proceeds from the sale of the Preferred Securities, together with the proceeds from the sale by the Trust of its common securities (liquidation amount $25 per common security) are to be invested in 7.20% Junior Subordinated Deferrable Interest Debentures of the Company (the "Junior Subordinated Debentures"), due April 1, 2028 (or such date to which the maturity of the Junior Subordinated Debentures may be extended, as described in the Prospectus Supplement dated March 25, 1998), to be issued pursuant to an Indenture (the "Indenture") dated November 15, 1996 between the Company and Wilmington Trust Company, as Debenture Trustee and the Officers' Certificate dated April 1, 1998, pursuant to Sections 201 and 301 of the Indenture. The Preferred Securities, the Junior Subordinated Debentures and the Guarantee have been registered under the Securities Act of 1933, as amended, by a registration statement on Form S-3, File No. 333-45211. Item 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. 1.1 Underwriting Agreement, dated March 25, 1998, between the Company, the Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Piper Jaffray Inc., Dain Rauscher Incorporated, Morgan Stanley & Co. Incorporated, Prudential Securities Incorporated and Smith Barney Inc. 1.2 U.S. Bancorp Underwriting Agreement Standard Terms (Capital Securities) (March 25, 1998). -2- 4.1 Officers' Certificate dated April 1, 1998 pursuant to Sections 201 and 301 of the Indenture dated as of November 15, 1997, between the Company and Wilmington Trust Company, as Debenture Trustee (excluding exhibits thereto). 4.2 Specimen Preferred Security Certificate. 4.3 Specimen Junior Subordinated Debenture. -3- Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: April 3, 1998 U.S. BANCORP By: /s/ David J. Parrin ------------------------------ David J. Parrin Senior Vice President & Controller -4- INDEX TO EXHIBITS
(c) Exhibits Page No. -------- -------- 1.1 Underwriting Agreement, dated March 25, 1998, between the Company, the Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Piper Jaffray Inc., Dain Rauscher Incorporated, Morgan Stanley & Co. Incorporated, Prudential Securities Incorporated and Smith Barney Inc. ............... 1.2 U.S. Bancorp Underwriting Agreement Standard Terms (Capital Securities) (March 25, 1998). ...................... 4.1 Officers' Certificate dated April 1, 1998 pursuant to Sections 201 and 301 of the Indenture dated as of November 15, 1997, between the Company and Wilmington Trust Company, as Debenture Trustee (excluding exhibits thereto). ................................................... 4.2 Specimen Preferred Security Certificate. .................... 4.3 Specimen Junior Subordinated Debenture. .....................
-5- EX-1.1 2 EXHIBIT 1.1 Exhibit 1.1 UNDERWRITING AGREEMENT March 25, 1998 U.S. Bancorp USB Capital II 601 Second Avenue South Minneapolis, MN 55402 Ladies and Gentlemen: We (the "Representatives") understand that USB Capital II, a business trust formed under the laws of the State of Delaware (the "Trust"), and U.S. Bancorp, a Delaware corporation, as depositor of the Trust and as guarantor (the "Guarantor"), propose that the Trust issue an aggregate of 14,000,000, 7.20% Trust Originated Preferred Securities (liquidation amount $25 per Preferred Security) (the "Offered Securities") representing preferred beneficial interests in the Trust. The Guarantor and the Trust have also granted to the Underwriters (as hereinafter defined) an option to purchase up to 2,100,000 additional 7.20% Trust Originated Preferred Securities (liquidation amount $25 per Preferred Security) (the "Optional Securities" together with the Offered Securities, the "Securities") representing preferred beneficial interests in the Trust. The proceeds of the sale of the Securities, together with the proceeds of the sale by the Trust of its common securities (liquidation amount $25 per common security) (the "Common Securities"), are to be invested in 7.20% Junior Subordinated Deferrable Interest Debentures of the Guarantor (the "Junior Subordinated Debentures"), due April 1, 2028 (or such date to which the maturity of the Junior Subordinated Debentures may be extended, as described in the Prospectus Supplement), to be issued pursuant to an Indenture (the "Indenture") dated as of November 15, 1996 between the Guarantor and Wilmington Trust Company, as trustee (the "Debenture Trustee"). The Guarantor will, through the Indenture, the Junior Subordinated Debentures, the Amended and Restated Trust Agreement dated as of April 1, 1998 (the "Trust Agreement") among the Guarantor, as Depositor to the Trust, Wilmington Trust Company, as Delaware Trustee and Property Trustee, and the Administrative Trustees named therein (collectively, the "Trustees"), the Guarantee Agreement dated as of April 1, 1998 (the "Guarantee") between the Guarantor and Wilmington Trust Company, as trustee (the "Guarantee Trustee"), and the Expense Agreement dated as of April 1, 1998 between the Guarantor and the trustees named therein, taken together, fully, irrevocably and unconditionally guarantee on a subordinated basis all of the Trust's obligations under the Securities. Subject to the terms and conditions set forth herein and incorporated by reference herein, the Guarantor and the Trust hereby agree that the Trust shall sell to each of the underwriters named in Schedule I (the "Underwriters"), and each of the Underwriters agrees, severally and not jointly, to purchase the numbers of the Offered Securities set forth opposite the name of such Underwriter at a purchase price of $25 per Offered Security, plus accrued distributions, if any (the "Purchase Price"). Subject to the terms and conditions set forth herein and incorporated by referenced herein, the Guarantor and the Trust hereby grant to the several Underwriters an option to purchase all or any portion of the Optional Securities at the Purchase Price for use solely in covering any over-allotments made by the Underwriters in the sale and distribution of the Offered Securities. The option granted hereunder may be exercised at any time (but not more than once) within 30 days after the effective date of this Agreement upon notice (confirmed in writing) by the Representatives to the Guarantor and the Trust setting forth the aggregate number of Optional Securities as to which the several Underwriters are exercising the option, the names and denominations in which the certificates for such Optional Securities are to be registered and the date and time, as determined by the Representatives when such Optional Securities are to be delivered. No Optional Securities shall be sold and delivered unless the Offered Securities have been, or simultaneously are, sold and delivered. Notwithstanding the foregoing, the option granted hereunder shall not be exercised without the prior consent of the Guarantor and the Trust. As compensation to the Underwriters for the commitments hereunder, and in view of the fact that the proceeds of the sale of the Securities will be used by the Trust to purchase the Junior Subordinated Debentures of the Guarantor, the Guarantor hereby agrees to pay at each Closing Date to the Representatives, for the accounts of the several Underwriters, an amount equal to $.7875 per Security for the Securities to be delivered at the Closing Date. At each Closing Date, the Guarantor will pay, or cause to be paid, the commission payable to the Underwriters under the preceding paragraph in federal (same day) funds. The Securities shall have the terms set forth in the Prospectus Supplement dated March 25, 1998. Except as otherwise provided herein, all the provisions contained in the document entitled "U.S. Bancorp Underwriting Agreement Standard Provisions (Capital Securities) (March 25, 1998)" (the "Standard Underwriting Agreement") are herein incorporated by reference in their entirety and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such provisions had been set forth in full herein. Capitalized terms used herein and not otherwise defined herein shall have the meanings given to them in the Standard Underwriting Agreement. Certificates for the Offered Securities purchased by each Underwriter shall be delivered by or on behalf of the Trust to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the Purchase Price therefor in federal (same day) funds, on the "Closing Date," which shall be 10:00 AM ( New York City time) on April 1, 1998 at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017, or at such other place and time as the Representatives, the Guarantor and the Trust may agree upon in writing. Certificates for the Optional Securities purchased by each Underwriter shall be delivered by or on behalf of the Trust to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the Purchase Price therefor in federal (same day) funds, on the second "Closing Date," which shall be 10:00 AM ( New York City time) on the date determined by the Representatives and of which the Guarantor and the Trust have received notice as provided by which shall not be earlier than three business days or later than five business days after the exercise of the option, or at such other time that may be agreed upon by the Representatives, the Guarantor and the Trust, at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, NY 10017, or at such other place and time as the Representatives, the Guarantor and the Trust may agree upon in writing. This document 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 document. Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below and returning the signed copy to us. MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED PIPER JAFFRAY INC. DAIN RAUSCHER INCORPORATED MORGAN STANLEY DEAN WITTER PRUDENTIAL SECURITIES INCORPORATED SALOMON SMITH BARNEY By: Merrill Lynch, Pierce Fenner & Smith Incorporated By: /s/ Lee Shavel ---------------------------- Its: ------------------------------------- Accepted by: U.S. BANCORP, as Guarantor By: /s/ Kenneth D. Nelson --------------------------------- Name: Kenneth D. Nelson Title: Vice President USB CAPITAL II By: U.S. Bancorp, as Depositor By: /s/ Kenneth D. Nelson --------------------------------- Name: Kenneth D. Nelson Title: Vice President SCHEDULE I
Underwriters' Commitment ------------------------ Merrill Lynch, Pierce, Fenner & Smith 1,650,000 Incorporated Piper Jaffray Inc. 1,630,000 Dain Rauscher Incorporated 1,630,000 Morgan Stanley & Co. Incorporated 1,630,000 Prudential Securities Incorporated 1,630,000 Smith Barney Inc. 1,630,000 BT Alex. Brown Incorporated 140,000 Robert W. Baird & Co. Incorporated 140,000 Bear, Stearns & Co. Inc. 140,000 CIBC Oppenheimer Corp. 140,000 Cowen & Company 140,000 Donaldson, Lufkin & Jenrette Securities Corporation 140,000 A.G. Edwards & Sons, Inc. 140,000 EVEREN Securities, Inc. 140,000 Goldman, Sachs & Co. 140,000 Legg Mason Wood Walker, Incorporated 140,000 Lehman Brothers Inc. 140,000 J.P. Morgan Securities Inc. 140,000 Raymond James & Associates, Inc. 140,000 The Robinson-Humphrey Company, LLC 140,000 Tucker Anthony Incorporated 140,000 US Clearing Corp. 140,000 Wheat First Securities, Inc. 140,000 Advest, Inc. 70,000 Blaylock & Partners, L.P. 70,000 J.C. Bradford & Co. 70,000 D.A. Davidson & Co. 70,000 Fahnestock & Co. Inc. 70,000 First Albany Corporation 70,000 First of Michigan Corporation 70,000 Gibraltar Securities Co. 70,000 Gruntal & Co., L.L.C. 70,000 Interstate/ Johnson Lane Corporation 70,000 Janney Montgomery Scott Inc. 70,000 Josephthal & Co. Inc. 70,000 Kirpatrick, Pettis, Smith, Polian Inc. 70,000 McDonald & Company Securities, Inc. 70,000 Mesirow Financial, Inc. 70,000 Morgan Keegan & Company, Inc. 70,000 The Ohio Company 70,000 Underwriters' Commitment ------------------------ Olde & Co., Incorporated 70,000 Pryor, McClendon, Counts & Co., Inc. 70,000 Roney & Co., LLC 70,000 Scott & Stringfellow, Inc. 70,000 Stephens Inc. 70,000 Stifel, Nicolaus & Company, Incorporated 70,000 Stone & Youngberg 70,000 TD Securities (USA) Inc. 70,000 Trilon International Inc. 70,000 ---------- TOTAL 14,000,000 ---------- ----------
EX-1.2 3 EXHIBIT 1.2 Exhibit 1.2 U.S. BANCORP UNDERWRITING AGREEMENT STANDARD PROVISIONS (CAPITAL SECURITIES) (MARCH 25, 1998) From time to time, U.S. Bancorp, a Delaware corporation (the "Guarantor"), and each of USB Capital II ("USB II"), USB Capital III ("USB III") USB Capital IV ("USB IV") or USB Capital V ("USB V"), each a statutory business trust formed under the laws of the State of Delaware, may enter into one or more underwriting agreements (each such agreement, an "Underwriting Agreement") that provide for the sale of designated capital securities to the several underwriters (the "Underwriters") named therein. The standard provisions hereof may be incorporated by reference in any Underwriting Agreement. As used herein, the term "Trust" means the statutory business trust named in the first sentence of the Underwriting Agreement. The term "Agreement" means the Underwriting Agreement, including the provisions hereof incorporated therein by reference. Unless otherwise defined herein, all other defined terms have the meanings ascribed thereto in the Underwriting Agreement. I The Guarantor and each of USB II, USB III, USB IV and USB V propose that USB II, USB III, USB IV and USB V, severally and not jointly, issue from time to time, in one or more series, capital securities (the "Securities") pursuant to the provisions of the registration statement on Form S-3 filed on January 29, 1998, as amended on February 13, 1998, Registration No. 333-45211. Such Securities may be issued in amounts, at prices and other terms to be determined in light of market conditions at the time of sale. The specific number of the Securities, title and liquidation preference of each Security, issuance price, distribution rate or rates (or method of calculation), distribution periods, distribution payment dates, redemption provisions, and any other specific terms of the Securities shall be set forth in a prospectus supplement. The Securities specified in Schedule I to the Underwriting Agreement are the "Firm Securities." If specified in such Underwriting Agreement, the Guarantor and the Trust may grant to the Underwriters the right to purchase at their election an additional number of the Securities specified in such Underwriting Agreement as provided in Article III hereof (the "Optional Securities"). The Firm Securities and the Optional Securities, if any, which the Underwriters elect to purchase pursuant to Article III hereof are herein collectively called the "Offered Securities." The Guarantor and USB II, USB III, USB IV and USB V have filed with the Securities and Exchange Commission (the "Commission") a registration statement in respect of the Securities, the Guarantee and the Junior Subordinated Debentures (collectively, the "Registered Securities"), including a prospectus relating to the Registered Securities, and will file with, the Commission a prospectus supplement specifically relating to the Offered Securities pursuant to Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"). The term "Registration Statement" means the registration statement as amended to the date of the Underwriting Agreement. The term "Basic Prospectus" means the prospectus included in the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the prospectus supplement specifically relating to the Offered Securities (the "Prospectus Supplement"), as filed with, the Commission pursuant to Rule 424. The term "preliminary prospectus" means a preliminary prospectus supplement specifically relating to the Offered Securities together with the Basic Prospectus. As used herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in each case the material, if any, incorporated by reference therein. II The terms of the public offering of the Firm Securities are set forth in the Prospectus. III The Guarantor and the Trust may specify in the Underwriting Agreement applicable to any Securities that the Guarantor and the Trust thereby grant to the Underwriters the right (an "Overallotment Option") to purchase at their election up to the number of Optional Shares set forth in such Underwriting Agreement, on the terms set forth in the paragraph above, for the sole purpose of covering over-allotments in the sale of the Firm Securities. Any such election to purchase Optional Securities may be exercised by written notice from each of the Representatives (as defined in the Underwriting Agreement) to the Guarantor and the Trust, given within a period specified in the Underwriting Agreement, setting forth the aggregate number of Optional Securities to be purchased and the date on which such Optional Securities are to be delivered, as determined by the Representatives but in no event earlier than the first Closing Date or, unless the Representatives, the Guarantor and the Trust otherwise agree in writing, earlier than or later than the respective number of business days after the date of such notice set forth in such Underwriting Agreement. Notwithstanding the foregoing, -2- such Overallotment Option shall not be exercised without the prior consent of the Guarantor and the Trust. The number of Optional Securities to be added to the number of Firm Securities to be purchased by each Underwriter as set forth in Schedule I to the Underwriting Agreement applicable to such Securities shall be, in each case, the number of Optional Securities which the Guarantor has been advised by the Representatives have been attributed to such Underwriter; provided, that, if the Guarantor and the Trust have not been so advised, the number of Optional Securities to be so added shall be, in each case, that proportion of Optional Securities which the number of Firm Securities to be purchased by such Underwriter under such Underwriting Agreement bears to the aggregate number of Firm Securities (rounded as the Representatives may determine to the nearest 10 shares). The total number of Offered Securities to be purchased by all Underwriters pursuant to such Underwriting Agreement shall be the aggregate number of Firm Securities set forth in Schedule I to such Underwriting Agreement plus the aggregate number of Optional Securities which the Underwriters elect to purchase. IV Payment for the Securities shall be made in federal (same day) funds at the time, date and place set forth in the Underwriting Agreement, upon delivery to the Representatives, through the facilities of The Depository Trust Company ("DTC"), for the respective accounts of the several Underwriters of the Securities. Each time and date of such payment and delivery of the Securities is herein referred to as a "Closing Date." The Trust will cause the certificates representing the Securities to be made available for checking and packaging at least one day prior to the Closing Date at the office of DTC or its designated custodian. V The several obligations of the Underwriters hereunder are subject to the condition that all representations and warranties and other statements of the Guarantor and the Trust in or incorporated by reference in the Underwriting Agreement are, at and as of each Closing Date, true and correct, the condition that the Guarantor and the Trust shall have performed all of their respective obligations hereunder theretofore to be performed, and to the following additional conditions: (a) The Representatives shall have received on the Closing Date a certificate of the Administrative Trustees with respect to the Trust and a certificate of the Chairman, Vice Chairman, President or a Vice President of the Guarantor, each dated the Closing Date and to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of -3- the possible change, in the rating accorded any of the Trust's securities or the Guarantor's securities by any nationally recognized statistical rating organization, (ii) that the representations and warranties of the Guarantor contained in Section VII are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Trust and the Guarantor have complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the date of such certificate, and (iv) that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (b) The Representatives shall have received on the Closing Date an opinion of Dorsey & Whitney LLP, counsel to the Guarantor and the Trust, dated the Closing Date, and addressed to the Representatives, to the effect set forth in Exhibit A. In rendering such opinion to the effect set forth in Exhibit A, such counsel may rely as to matters of New York law upon the opinion of Davis Polk & Wardwell, counsel to the Underwriters, being delivered pursuant to subparagraph (d). (c) The Representatives shall have received on the Closing Date an opinion of the General Counsel of the Guarantor, and addressed to the Representatives, dated the Closing Date, to the effect set forth in Exhibit B. (d) The Representatives shall have received on the Closing Date an opinion of Davis Polk & Wardwell, counsel to the Underwriters, dated the Closing Date, and addressed to the Representatives, relating to the incorporation of the Guarantor, the validity of the Offered Securities and the Underwriting Agreement, the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request. In rendering such opinion, such counsel may rely as to matters of Minnesota law upon the opinions of Dorsey & Whitney LLP and the General Counsel of the Guarantor being delivered pursuant to subsections (b) and (c), respectively. (e) The Representatives shall have received on the Closing Date an opinion of Dorsey & Whitney LLP, special tax counsel for the Trust and the Guarantor, dated the Closing Date and addressed to the Representatives, to the effect set forth in ExhibitC. (f) The Representatives shall have received on the Closing Date an opinion of Richards, Layton & Finger, P.A., special Delaware counsel for the Trust and the Guarantor, dated the Closing Date and addressed to the Representatives, to the effect set forth in Exhibit D. -4- (g) At the time of execution of the applicable Underwriting Agreement, the Representatives shall have received a letter dated such date in form and substance satisfactory to the Representatives, from Ernst & Young LLP, to the effect set forth in Exhibit E. (h) At Closing Date, the Representatives shall have received from Ernst & Young LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (g) of this Article. (i) On or prior to the Closing Date, Davis Polk & Wardwell, counsel to the Underwriters, shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Offered Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Guarantor and the Trust in connection with the issuance and sale of the Offered Securities as herein contemplated shall be satisfactory in form and substance to the Underwriters and Davis Polk & Wardwell. (j) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material adverse change in the condition, financial or otherwise, of the Trust or of the Guarantor and its subsidiaries considered as one enterprise, or in the earnings, affairs or business prospects of the Trust or of the Guarantor and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, other than as set forth in the Prospectus as amended or supplemented to the Closing Date, and (ii) there shall not have occurred since the date of the applicable Underwriting Agreement any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the public offering or the delivery of the Offered Securities on the terms and in the manner contemplated by the Prospectus, and (iii) trading in securities of the Guarantor as of the date of the Underwriting Agreement shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the American Stock Exchange or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking -5- moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Guarantor as of the date of the Underwriting Agreement shall not have been downgraded nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating, and (v) the Prospectus, at the time it was required to be delivered to a purchaser of the Offered Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances existing at such time, not misleading. (k) The Representatives shall have received on the Closing Date a certificate of Wilmington Trust Company as Guarantee, Debenture, Property and Delaware Trustee. (l) The Trust Agreement, the Guarantee and the Indenture shall have been duly authorized, executed and delivered, in each case in a form reasonably satisfactory to the Representatives. (m) The Securities to be sold by the Trust at such time of delivery shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange. VI In further consideration of the agreements of the Underwriters contained in the Underwriting Agreement, the Guarantor and the Trust, jointly and severally, covenant as follows: (a) The Guarantor and the Trust will give the Representatives notice of their intention to file any amendment to the Registration Statement or any amendment or supplement to the Prospectus, whether by the filing of documents pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the Securities Act or otherwise. The Guarantor and the Trust will furnish the Representatives with copies of any such amendment or supplement or other documents, other than documents filed pursuant to the Exchange Act, proposed to be filed a reasonable time in advance of filing, and will furnish the Representatives with copies of -6- documents filed pursuant to the Exchange Act promptly upon the filing thereof; (b) The Guarantor and the Trust will promptly notify the Representatives immediately (i) of the filing and effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document to be filed pursuant to the Exchange Act which will be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus or any amendment or supplement thereto, (iv) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or for additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of initiation of any proceedings for that purpose, or (vi) of the suspension of qualification of the Offered Securities for offering or sale in any jurisdiction or the initiation or threat of initiation of any proceedings for that purpose. The Guarantor and the Trust will make every reasonable effort to prevent the issuance of any stop order or suspension of qualification and, if any stop order or suspension of qualification is issued, to obtain the lifting thereof at the earliest possible moment; (c) If, during the period after the date of the first public offering of the Offered Securities when the Prospectus is required by law to be delivered, any event shall occur or condition exist as a result of which it is necessary, in the reasonable opinion of the counsel for the Underwriters or counsel for the Guarantor and the Trust, to further amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the reasonable opinion of either such counsel, at any such time to amend or supplement the Registration Statement or the Prospectus in order to comply with the requirements of the Securities Act or the rules and regulations issued by the Commission thereunder immediate notice shall be given, and confirmed in writing, to the Representatives, and the Guarantor and the Trust will promptly prepare and file with the Commission such amendment or supplement, whether by filing documents pursuant to the Exchange Act, the Securities Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement comply with such requirements; -7- (d) The Guarantor and the Trust will make generally available to its security holders (as defined in Rule 158) as soon as practicable, but not later than 45 days after the close of each of the first three fiscal quarters of each fiscal year and 90 days after the close of each fiscal year, earnings statements (in form complying with the provisions of Rule 158 under the Securities Act) covering a twelve month period beginning not later than the first day of the fiscal quarter next following the effective date of the Registration Statement (as defined in Rule 158) with respect to each sale of Securities; (e) The Guarantor and the Trust will deliver to the Representatives, without charge, as many signed and conformed copies of the registration statement (as originally filed) and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference in the Prospectus) as the Representatives may reasonably request. The Guarantor and the Trust will furnish to the Representatives as many copies of the Prospectus (as amended or supplemented) as the Representatives shall reasonably request so long as the Underwriters are required to deliver a Prospectus in connection with the offering or sale of the Offered Securities; (f) The Guarantor and the Trust will endeavor, in cooperation with the Representatives, to qualify the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions of the United States as the Representatives may designate, and will maintain such qualifications in effect for as long as may be required for the distribution of the Offered Securities; provided, however, that neither the Guarantor nor the Trust shall be obligated to file any general consent to service of process or to qualify as a foreign corporation in any jurisdiction in which it is not so qualified. The Guarantor and the Trust will file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided; (g) The Guarantor, during the period when the Prospectus is required to be delivered under the Securities Act, will file promptly all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act; (h) During the period beginning on the date of the Underwriting Agreement and continuing to and including the last Closing Date for such Offered Securities, the Guarantor and Trust will not offer, sell, contract to sell or otherwise dispose of any Securities, any other beneficial interest in the assets of the Trust, or any other securities of the Trust or any other similar trust which are substantially similar to the Offered Securities, -8- including any guarantee of such securities, or any junior subordinated debentures of the Guarantor issued to the Trust or other similar trust, or any securities convertible into or exchangeable for or representing the right to receive Securities, or any such substantially similar securities of the Trust or any other similar trust, or any junior subordinated debentures of the Guarantor issued to the Trust or other similar trust, without the prior written consent of the Representatives; (i) The Guarantor will issue the Guarantee and the Junior Subordinated Debentures concurrently with the issue and sale of the Offered Securities as contemplated herein; (j) The Guarantor will use the net proceeds received by it from the sale of the Junior Subordinated Debentures, and to cause the Trust to use the net proceeds received by the Trust from the sale of Offered Securities pursuant to the Underwriting Agreement, in the manner specified in the Prospectus under the caption "Use of Proceeds", and to further cause the Trust to comply with the provisions of this Article VI that are applicable to it, including paragraph (h); (k) The Guarantor and the Trust will use their best efforts to list, subject to notice of issuance, the Offered Securities on the New York Stock Exchange; (l) To prepare the Prospectus as amended and supplemented in relation to the applicable Offered Securities in a form approved by the Representatives and to file such Prospectus pursuant to Rule 424(b) under the Securities Act in the manner and within the time period required by Rule 424(b), and to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the Underwriting Agreement relating to such Offered Securities and prior to any Closing Date for such Offered Securities which shall be disapproved by the Representatives for such Offered Securities promptly after reasonable notice thereof. VII Each of the Guarantor and the Trust jointly and severally represents and warrants to each Underwriter that: (a) The Registration Statement has been filed with the Commission in the form heretofore delivered or to be delivered to the Representatives and, excluding exhibits to the Registration Statement, but including all documents incorporated by reference in the Basic Prospectus, to -9- the Representatives for each of the other Underwriters and the Registration Statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission; (b) The documents incorporated by reference in the Prospectus, at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and when read together and with the other information in the Prospectus, at the time the Registration Statement became, and any amendments thereto become, effective, and as of the Closing Date, did not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading; (c) The Registration Statement and the Prospectus, at the time the Registration Statement and each part thereof became or hereafter become effective, complied and any amendments or supplements thereto will comply, in all material respects with the requirements of the Securities Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act") and the rules and regulations of the Commission thereunder. The Registration Statement at the time the Registration Statement and each part thereof became effective did not and as of the Closing Date will not, contain an untrue statement of any material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus, at the time the Registration Statement became effective did not, and as of the Closing Date will not, contain an 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 this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information relating to an Underwriter furnished in writing to the Guarantor or the Trust by such Underwriter of Offered Securities through the Representatives expressly for use in the Prospectus as amended or supplemented relating to such Offered Securities or to that part of the Registration Statement constituting the Statement of Eligibility and Qualification under the Trust Indenture Act (Form T-1) of the Trustee; (d) The Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, is duly registered as a bank holding company under the Bank -10- Holding Company Act of 1956, as amended, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; and the Guarantor is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which its ownership or lease of substantial properties or the conduct of its business requires such qualification; (e) U.S. Bank National Association, the Guarantor's principal subsidiary bank, has been duly incorporated and is validly existing as a national banking association in good standing under the laws of the United States and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement; all of the issued and outstanding capital stock of such bank has been duly authorized and validly issued and is fully paid and, except as provided in 12 U.S.C. Section 55, non-assessable; and 100% of the capital stock of U.S. Bank National Association, other than any director's qualifying shares, is owned by the Guarantor, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity; (f) The authorized, issued and outstanding capital stock of the Guarantor is as set forth in the Registration Statement, and the shares of issued and outstanding common stock set forth thereunder have been duly authorized and validly issued and are fully paid and non-assessable; (g) The Trust has been duly created and is validly existing as a statutory business trust in good standing under the Trust Agreement and the Business Trust Act of the State of Delaware and has the trust power and authority to own its properties and conduct its business as described in the Prospectus, and the Trust has conducted no business to date, and it will conduct no business in the future that would be inconsistent with the description of the Trust set forth in the Prospectus; the Trust is not a party to or bound by any agreement or instrument other than the Underwriting Agreement, the Trust Agreement and the agreements and instruments contemplated by the Trust Agreement; the Trust has no liabilities or obligations other than those arising out of the transactions contemplated by the Underwriting Agreement and the Trust Agreement and described in the Prospectus; based on expected operations and current law, the Trust is not and will not be classified as an association taxable as a corporation for United States federal income tax purposes; and the Trust is not a party to or subject to any action, suit or proceeding of any nature. (h) The Offered Securities have been duly authorized by the Trust Agreement and, when issued and delivered in accordance with the terms of the Underwriting Agreement, the Trust Agreement and the -11- Prospectus, will be validly issued and, subject to the qualifications set forth herein, fully paid and nonassessable undivided beneficial interests in the assets of the Trust under the Trust Agreement and the Delaware Business Trust Act and will conform to the description of the Offered Securities contained in the Prospectus; the issuance of the Offered Securities is not subject to any preemptive or other similar rights; the Offered Securities will have the rights set forth in the Trust Agreement; and the holders of Offered Securities, as beneficial owners of the Trust, will 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, provided that the holders of Offered Securities may be obligated, pursuant to the Trust Agreement, (a) to provide indemnity and/or security in connection with any taxes or governmental charges arising from transfers or exchanges of Capital Securities Certificates (as defined in the Trust Agreement) and the issuance of replacement Capital Securities Certificates and (b) to provide security and indemnity in connection with requests of or directions to the Property Trustee (as defined in the Trust Agreement) to exercise its rights and remedies under the Trust Agreement. (i) The Common Securities of the Trust to be sold to the Guarantor have been duly authorized by the Trust Agreement, and, when issued in accordance with the terms of the Trust Agreement and delivered to the Guarantor against payment therefor as described in the Prospectus, will represent validly issued undivided beneficial interests in the assets of the Trust and will conform to the description thereof contained in the Prospectus; the issuance of the Common Securities is not subject to preemptive or other similar rights; and at the Closing Date all of the issued and outstanding Common Securities of the Trust will be directly owned by the Guarantor free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (j) The Guarantee, the Junior Subordinated Debentures, the Expense Agreement and the Indenture (the Guarantee, the Junior Subordinated Debentures, the Expense Agreement, the Trust Agreement and the Indenture being collectively referred to as the "Guarantor Agreements") have each been duly authorized and when validly executed and delivered by the Guarantor will constitute valid and legally binding obligations of the Guarantor, enforceable in accordance with their respective 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 -12- general principles of equity embodied in Minnesota, Delaware and New York statutes and common law. The Junior Subordinated Debentures are entitled to the benefits of the Indenture; and the Guarantor Agreements will conform to the descriptions thereof in the Prospectus. (k) The Trust Agreement has been duly authorized and when validly executed and delivered by the Guarantor and the Administrative Trustees as of the Closing Date will constitute a valid and binding obligation of the Guarantor and the Administrative Trustees, enforceable in accordance with its terms, subject to the effect upon the Trust Agreement of (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principals of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution. (l) The execution and delivery by the Trust of, and the performance by the Trust of its obligations under the Underwriting Agreement and the Trust Agreement do not violate (A) the Trust Agreement or the Certificate of Trust of the Trust, (B) any applicable Delaware law, rule or regulation or (C) any provision of applicable law of the State of Minnesota or the United States; will not contravene any provision of applicable law, the Trust Agreement, the certificate of incorporation or bylaws of the Guarantor or articles of association of bylaws of U.S. Bank National Association or any agreement or other instrument binding upon the Trust, the Guarantor or U.S. Bank National Association that is material to the Trust or to the Guarantor and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Trust; and no consent, approval, authorization, order, license, certificate, permit, registration or qualification of, or with, any governmental or regulatory body is required for the performance by the Trust of its obligations under the Underwriting Agreement or the Trust Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Offered Securities and Common Securities. (m) The execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under the Underwriting Agreement and the Guarantor Agreements, will not contravene any provision of applicable law, the Trust Agreement, the certificate of incorporation or bylaws of the Guarantor or articles of association or bylaws of U.S. Bank National Association or any agreement or other instrument -13- binding upon the Guarantor or U.S. Bank National Association that is material to the Guarantor and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Guarantor or any subsidiary; and no consent, approval, authorization or order of, or qualification with, any governmental or regulatory body is required for the performance by the Guarantor of its obligations under the Underwriting Agreement or the Guarantor Agreements, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Junior Subordinated Debentures. (n) Neither the Trust, the Guarantor 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 or to the Guarantor and its subsidiaries taken as a whole. (o) The statements set forth in the Prospectus under the captions "U.S. Bancorp," "The Issuers," "Description of Junior Subordinated Debentures," "Description of Capital Securities," "Description of Guarantees," "Plan of Distribution," "Risk Factors--Possible Tax Law Changes Affecting the Preferred Securities," "Issuer," "Certain Terms of Preferred Securities," "Certain Terms of Junior Subordinated Debentures," "Certain Federal Income Tax Consequences," "Underwriting" and such other sections as may be identified in the Underwriting Agreement, are accurate, complete and fair. (p) The Trust is not, and after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus will not be an "investment company" that is required to be registered under the Investment Company Act of 1940, as amended, and the Guarantor is not, and after giving effect to the issuance of the Junior Subordinated Debentures and the application of the proceeds thereof as described in the Prospectus will not be an "investment company" that is required to be registered under the Investment Company Act of 1940, as amended. (q) Each of the Trust, the Guarantor and the subsidiaries of the Guarantor 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; -14- (r) Each of the Trust, the Guarantor and the subsidiaries of the Guarantor own or possess adequate trademarks, service marks and trade names necessary to conduct the business now operated by them, and neither the Trust, the Guarantor nor any of the subsidiaries of the Guarantor has received any notice of infringement of or conflict with asserted rights of others with respect to any trademarks, service marks or trade names which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially adversely affect the conduct of the business, operations, financial condition or income of the Trust or of the Guarantor and its subsidiaries considered as one enterprise; (s) 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 Trust or the Guarantor, threatened against or affecting, the Trust or the Guarantor or any of the subsidiaries of the Guarantor, which might result in any material adverse change in the condition, financial or otherwise, of the Trust or the Guarantor and the subsidiaries of the Guarantor considered as one enterprise, or in the business prospects of the Guarantor and the subsidiaries of the Guarantor considered as one enterprise, or might materially and adversely affect the properties or assets thereof or might materially and adversely affect the consummation of this Agreement and the consummation of the transactions contemplated hereby; and there are no material contracts or documents of the Trust or the Guarantor or any of the subsidiaries of the Guarantor which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the rules and regulations of the Commission thereunder which have not been so filed; (t) No labor dispute with the employees of the Guarantor or any of its subsidiaries exists or, to the knowledge of the Guarantor, is imminent; (u) The accountants who certified the financial statements included or incorporated by reference in the Prospectus are independent public accountants as required by the Securities Act and the rules and regulations issued by the Commission thereunder; (v) The financial statements of the Guarantor and its consolidated subsidiaries included or incorporated by reference in the Prospectus present fairly the financial position of the Guarantor and its consolidated subsidiaries as at the dates indicated and the results of their operations for the periods specified; except as stated therein, said financial statements have been prepared in conformity with generally accepted -15- accounting principles applied on a consistent basis; and the pro forma financial information, and the related notes thereto, included or incorporated by reference to the Prospectus has been prepared in accordance with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations issued by the Commission thereunder; (w) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein or contemplated thereby, (A) there has been no material adverse change in the condition, financial or otherwise, of the Trust or the Guarantor and the subsidiaries of the Guarantor considered as one enterprise or in the earnings, affairs or business prospects of the Trust or the Guarantor and the subsidiaries of the Guarantor considered as one enterprise, whether or not arising in the ordinary course of business, and (B) there have been no material transactions entered into by the Trust or the Guarantor, or any of the subsidiaries of the Guarantor other than those in the ordinary course of business; and (x) This Agreement has been duly authorized, executed and delivered by the Guarantor and the Trust. VIII (a) The Guarantor and the Trust agree, jointly and severally, to indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter (each an "Indemnified Person") within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act as follows: (i) against any and all loss, liability, claim, damage and expense whatsoever arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, unless such untrue statement or omission was made in reliance upon and in conformity with written information relating to such Indemnified Person furnished to the Guarantor or the Trust by the Representatives expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement -16- thereto or any related preliminary prospectus or preliminary prospectus supplement); (ii) against any and all loss, liability, claim, damage and expense whatsoever to the extent of the aggregate amount paid in settlement of any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to such Indemnified Person furnished by the Representatives as aforesaid) if such settlement is effected with the written consent of the Guarantor or the Trust; and (iii) against any and all expense whatsoever (including the fees and disbursements of counsel chosen by such Indemnified Person), as incurred, reasonably incurred in investigating, preparing or defending against any litigation, or investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission (except as made in reliance upon and in conformity with information relating to such Indemnified Person furnished by the Representatives as aforesaid), to the extent that any such expense is not paid under (i) or (ii) above. (b) Each Underwriter will indemnify and hold harmless the Guarantor and the Trust, each of their respective directors or trustees, each of their officers who signed the Registration Statement, and each person, if any, who controls the Guarantor or the Trust within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement) in reliance upon and in conformity with written information relating to such Underwriter furnished to the Guarantor or the Trust by the Representatives expressly for use in the Registration Statement (or any amendment thereto) or the Prospectus (or any amendment or supplement thereto or any related preliminary prospectus or preliminary prospectus supplement). (c) Each indemnified party shall give prompt notice to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder but failure to so notify an indemnifying party shall not relieve it from any liability which it may have otherwise than on account of this indemnity -17- agreement. An indemnifying party may participate at its own expense in the defense of such action. In no event shall the indemnifying parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances; provided, however, that when more than one of the Underwriters is an indemnified party each such Underwriter shall be entitled to separate counsel (in addition to any local counsel) in each such jurisdiction to the extent such Underwriter may have interests conflicting with those of the other Underwriter or Underwriters because of the participation of one Underwriter in a transaction hereunder in which the other Underwriter or Underwriters did not participate. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. (d) In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in this Section VIII is for any reason held to be unavailable to the Underwriters in accordance with its terms, the Guarantor, the Trust and the Underwriters shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by said indemnity agreement incurred by the Guarantor and the Trust on the one hand and the Underwriters on the other with respect to Securities sold to the Underwriters in such proportions as is appropriate to reflect the relative benefits received by the Guarantor and the Trust on the one hand and the Underwriters on the other. The relative benefits received by the Guarantor and the Trust on the one hand and the Underwriters on the other shall be deemed to be in such proportion represented by the percentage that the total commissions and underwriting discounts received by the Underwriters to the date of such liability bears to the total sales price (before deducting expenses) received by the Trust from the sale of the Offered Securities made to the Underwriters to the date of such liability, and the Guarantor and the Trust are responsible for the balance. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the Underwriters failed to give the notice required under (c), then the Guarantor and the Trust on the one hand and the Underwriters on the other shall contribute to such aggregate losses, liabilities, claims, damages and expenses in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Guarantor and the Trust on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such liabilities, claims, damages and expenses, as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the -18- omission or alleged omission to state a material fact relates to information supplied by the Guarantor and the Trust or the Representatives and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Guarantor, the Trust and the Underwriters agree that it would not be just and equitable if contributions pursuant to this paragraph were determined pro rata (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this paragraph. Notwithstanding the provisions of this paragraph, the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the Securities referred to in the second sentence of this paragraph that were offered and sold to the public through the Underwriters exceeds the amount of any damages that the Underwriters have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled under this paragraph to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each person, if any, who controls any Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Guarantor, each trustee of the Trust, each officer of the Guarantor and the Trust who signed the Registration Statement, and each person, if any, who controls the Guarantor or the Trust within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Guarantor and the Trust. IX The indemnity and contribution agreements contained in Section VIII hereof and the representations and warranties of the Guarantor and the Trust in this Agreement or in any certificate submitted pursuant hereto shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by any Underwriter or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Guarantor and the Trust or each of their respective directors or trustees or each of their officers or any person controlling the Guarantor and the Trust and (iii) acceptance of any payment for any of the Offered Securities, if any. X If any Underwriter shall default in its obligation to purchase the Offered Securities, which it has agreed to purchase hereunder, the Representatives may in their discretion arrange for themselves or another party or other parties to purchase such Offered Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for -19- the purchase of such Offered Securities then the Guarantor and the Trust shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Offered Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Guarantor and the Trust that they have so arranged for the purchase of such Offered Securities or the Guarantor or the Trust notify the Representatives that it has so arranged for the purchase of such Offered Securities, the Representatives, the Guarantor or the Trust shall have the right to postpone the Closing Date for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Guarantor and the Trust agree to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the reasonable opinion of the Representatives may thereby be made necessary. The term "Underwriters" as used in this Agreement shall include any person substituted under this Section X with like effect as if such person had originally been a party to this Agreement with respect to such Offered Securities. If, after giving effect to any arrangements for the purchase of the Offered Securities of a defaulting Underwriter or Underwriters by the Representatives and the Guarantor and the Trust as provided in the immediately preceding paragraph hereof, the aggregate principal amount of such Offered Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Offered Securities then the Guarantor and the Trust shall have the right to require each non-defaulting Underwriter to purchase the Offered Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Offered Securities which such Underwriter agreed to purchase hereunder) of the Offered Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. If, after giving effect to any arrangements for the purchase of the Offered Securities of a defaulting Underwriter or Underwriters by the Representatives and the Guarantor and the Trust as provided in the first paragraph of this Section X, the aggregate principal amount of Offered Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Offered Securities or if the Guarantor and the Trust shall not exercise the right described in the immediately preceding paragraph to require non-defaulting Underwriters to purchase Offered Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriters, the Guarantor or the Trust, except for the expenses to be borne by the Guarantor, the Trust and the Underwriters as -20- provided in Section XI hereof and the indemnity and contribution agreements in Section VIII hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. XI The Guarantor covenants and agrees with the several Underwriters that the Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Guarantor's and the Trust's counsel and accountants in connection with the registration of the Securities under the Securities Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement and the Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and to dealers; (ii) the cost of printing this Agreement and any Blue Sky and legal investment memoranda; (iii) all expenses in connection with the qualification of the Offered Securities for offering and sale under state securities laws as provided in Section VI hereof, including the fees and disbursements of counsel in connection with such qualification and in connection with the preparation of any Blue Sky memorandum or any Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) the cost of preparing the Securities; (vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and disbursements of counsel for the Trustee in connection with the Indenture, the Trust Agreement and the Securities; (vii) the fees and expenses incident to any Overallotment Options which are not otherwise specifically provided for in this section; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section XI. It is understood, however, that, except as provided in this Section XI and Sections VIII and XII hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Offered Securities by them and any advertising expenses connected with any offers they may make. XII If the Underwriting Agreement shall be terminated by the Underwriters or any of them, because of any failure or refusal on the part of the Guarantor or the Trust to comply with the terms or to fulfill any of the conditions of the Underwriting Agreement, or if for any reason the Guarantor or the Trust shall be unable to perform its obligations under the Underwriting Agreement except pursuant to Article X hereof, the Guarantor will reimburse the Underwriters or such Underwriters as have so terminated the Underwriting Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with the Offered Securities. -21- XIII In all dealings hereunder, the Representatives of the Underwriters of Offered Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the representatives, if any, as may be designated for such purpose hereunder. All statements, requests, notices and agreements hereunder shall be in writing or by telegram if promptly confirmed in writing, and if to the Underwriters shall be sufficient in all respects if delivered or sent by registered mail to the address of the principal offices of the Representatives and if to the Guarantor or the Trust shall be sufficient in all respects if delivered or sent by registered mail to the address of the Guarantor set forth in the Registration Statement, Attention: Treasurer; provided, however, that any notice to an Underwriter pursuant to Section VIII hereof shall be delivered or sent by registered mail to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Underwriters' Questionnaire, which address will be supplied to the Guarantor by the Representatives upon request. XIV This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Guarantor, the Trust and, to the extent provided in Section VIII hereof, the officers and directors of the Guarantor, the Trust and each person who controls the Guarantor or the Trust or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Offered Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. -22- XV Time shall be of the essence of this Agreement. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement and the rights and obligations of the parties created hereby shall be governed by the laws of the State of New York. Exhibit A Opinion of Counsel for the Trust and the Guarantor -------------------------------------------------- The opinion or opinions of Dorsey & Whitney LLP, counsel for the Trust and the Guarantor, to be delivered pursuant to Section V(b) of the Agreement, shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) The Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. (ii) The Guarantor has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Prospectus. (iii) 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 conducts its business as described in the Prospectus. (iv) The Underwriting Agreement has been duly authorized, executed and delivered by the Guarantor. (v) Each of the Trust Agreement, the Guarantee Agreement, the Indenture, the Expense Agreement and the Guarantee has been duly and validly authorized, executed and delivered by the Guarantor and (assuming due authorization, execution and delivery thereof by the Issuer Trustees, the Guarantee Trustee, the Debenture Trustee and the Trust, respectively) constitutes a valid and binding agreement of the Guarantor, enforceable in accordance with its terms, except as (i) enforceability thereof may be limited by bankruptcy, insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by principles of general applicability. (vi) The Junior Subordinated Debentures have been duly and validly authorized by all necessary corporate action and, when authenticated by the Debenture Trustee, issued and delivered in the manner provided in the Indenture, will constitute valid and binding obligations of the Guarantor, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as (i) enforcement thereof may be limited by bankruptcy, -A-1- insolvency, or other laws relating to or affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vii) The statements in the Prospectus under the captions "Description of Junior Subordinated Debentures", "Description of the Capital Securities", "Description of Guarantee" and "Relationship Among the Capital Securities, the Junior Subordinated Debentures and the Guarantee" insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate summaries of such provisions. (viii) The Exchange Act reports (other than the financial statements and related schedules therein, 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. (ix) Neither the Trust nor the Guarantor is, and after giving effect to the application of proceeds from the offering of the Securities as contemplated in the Offering Circular, will be, an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (x) No consent, approval, license, authorization, or order of any court or governmental authority or agency is required in connection with the issuance or sale of the Securities, the Junior Subordinated Debentures or the Guarantee, except such as may be required under state securities or Blue Sky laws. (xi) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Prospectus other than those described or referred to therein or incorporated by reference and the description thereof or references thereto are correct. (xii) The execution and delivery of the Underwriting Agreement, the Trust Agreement, the Guarantee Agreement, the Indenture, the Expense Agreement, the issuance of the Guarantee and the Junior Subordinated Debentures, and the consummation of the transactions contemplated herein and therein, and the performance of the obligations thereunder will not (a) -A-2- conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Guarantor or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Guarantor 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 Guarantor or any of its subsidiaries is subject and that is material to the Guarantor and its subsidiaries, taken as a whole, or (b) result in a violation of any Applicable Law nor will such action result in any violation of the provisions of the charter or bylaws of the Guarantor. (xiii) No consent, approval, license, authorization, or order of any federal court or federal government authority or agency is required for the performance by the Trust of its obligations under this Agreement or the consummation of the transactions contemplated hereby. (xiv) The execution and delivery of the Underwriting Agreement and the Expense Agreement by the Trust and the performance by the Trust of its obligations hereunder and thereunder, the issuance and sale of the Securities and the Common Securities by the Trust and the consummation of the other transactions contemplated hereby or thereby will not violate any provision of Applicable Law (other than any laws of the State of Delaware) or, to 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. (xv) To the knowledge of such counsel, 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 Prospectus that are not described as required and there are no agreements, contracts, indentures, leases or other instruments of the Trust that are required to be described in the Prospectus that are not described as required. In addition, Dorsey & Whitney LLP will state that it has participated in the preparation of the Prospectus (as amended or supplemented, if applicable) and that nothing has come to such counsel's attention that give such counsel reason to believe that (other than the financial statements, schedules and other financial data included therein, as to which no statement need be rendered) the Prospectus (as amended or supplemented, if applicable) or, any document incorporated by reference therein, at the time such Prospectus (as amended or supplemented, if applicable) was circulated or at the Closing Date, contained or contains an untrue -A-3- statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. For purposes of the foregoing opinion, such counsel may state that "Applicable Law" shall mean only the laws of the United States, the State of Delaware and the State of Minnesota which, in such counsel's experience, are normally applicable to transactions of the type contemplated by the Underwriting Agreement (but without such counsel having made any special investigation as to the applicability of any specific law, rule or regulation except as specified herein). -A-4- Exhibit B Opinion of General Counsel of the Guarantor -------------------------------------------- The opinion of the General Counsel of the Guarantor, to be delivered pursuant to Section V(c) of the Agreement, shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) The Guarantor 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 so to qualify would not have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole. (ii) U.S. Bank National Association is lawfully able to transact business in each jurisdiction in which it owns or leases substantial properties or conducts business, except for the jurisdictions in which the failure to be lawfully able to conduct business would not have a material adverse effect on U.S. Bank National Association and its subsidiaries, taken as a whole. (iii) There are no pending or, to the best of my knowledge, overtly threatened lawsuits or claims which are required to be disclosed in the Prospectus that are not disclosed as required. -B-1- Exhibit C Opinion of Special Tax Counsel of the Trust and the Guarantor ------------------------------------------------------------- The opinion or opinions of Dorsey & Whitney LLP, to be delivered pursuant to Section V(e) of the Agreement, shall confirm the opinions set forth in the Prospectus under the caption "Certain Federal Income Tax Consequences." -C-1- Exhibit D Opinion of Special Delaware Counsel for the Trust and the Guarantor -------------------------------------------------------------------- The opinion or opinions of Richards, Layton & Finger, P.A., special Delaware counsel for the Trust and the Guarantor, to be delivered pursuant to Section V(f) of the Agreement, shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act and has the business trust power and authority to conduct its business as presently conducted and as described in the Prospectus. (ii) The Underwriting Agreement has been duly authorized, executed and delivered by the Trust. (iii) The Expense Agreement has been duly authorized, executed and delivered by the Trust. (iv) The Common Securities have been duly authorized for issuance and when issued, delivered and paid for as set forth in the Prospectus, will represent validly issued, undivided beneficial interests in the assets of the Trust. The issuance of the Common Securities is not subject to preemptive or other similar rights under the Delaware Business Trust Act or the Trust Agreement. (v) The Securities have been duly authorized for issuance and, subject to the qualification set forth below, when issued, executed, delivered and paid for in accordance with the Underwriting Agreement, will represent validly issued, fully paid and nonassessable individual beneficial interests in the assets of the Trust; the holders of the Securities will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporate Law of the State of Delaware. Such counsel may state, however, that the holders of Securities may be obligated, pursuant to the Trust Agreement, to (i) provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers of Securities and the issuance of replacement Securities, and (ii) provide security and indemnity in connection with requests of or directions to the Property Trustee of the Trust to exercise its rights and powers under the Trust Agreement. The issuance of the Securities -D-1- is not subject to preemptive or other similar rights under the Delaware Act or the Trust Agreement. (vi) The execution and deliver of the Underwriting Agreement and the Expense Agreement by the Trust and the performance by the Trust of its obligations hereunder and thereunder, the issuance and sale of the Securities and the Common Securities by the Trust and the consummation of the other transactions contemplated hereby or thereby will not violate any provision of Applicable Law or the Trust Agreement and no consent, approval, license, authorization or order of any court or governmental authority or agency of the State of Delaware is required for the performance by the Trust of its obligations under this Agreement or the consummation of the transactions contemplated hereby, except such as are required pursuant to state securities or Blue Sky laws. (vii) The Trust is not authorized to issue any securities other than the Securities, or the Common Securities, For purposes of the foregoing opinion, such counsel may state that "Applicable Law" shall mean only the Delaware Business Trust Act and those other laws of the State of Delaware which, in such counsel's experience, are normally applicable to transactions of the type contemplated by this Agreement (but without such counsel having made any special investigation as to the applicability of any specific law, rule or regulation except as specified herein). -D-2- Exhibit E Letter from Ernst & Young LLP ----------------------------- The Letter of Ernst & Young LLP to be delivered pursuant to Section V(g) of the Agreement shall be to the following effect (all terms used herein which are defined in the Agreement have the meanings set forth therein): (i) They are independent public accountants with respect to the Guarantor and its subsidiaries within the meaning of the Securities Act and the applicable published rules and regulations thereunder. (ii) In their opinion, the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, as applicable, and the published rules and regulations thereunder. (iii) They have made a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the American Institute of Certified Public Accountants, as indicated in their report or reports attached to such letter. (iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial statements of the Guarantor and its consolidated subsidiaries, inspection of the minute books of the Guarantor and U.S. Bank National Association since the date of the balance sheet included in the Guarantor's most recent audited financial statements, inquiries of officials of the Guarantor responsible for financial and accounting matters and other procedures, nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Act, the Exchange Act, and the published rules and regulations thereunder or that the unaudited financial statements are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of the audited financial statements included in the Prospectus. (v) They have performed specified procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Guarantor and its consolidated subsidiaries, a reading of the minute books of the Guarantor and U.S. Bank National Association since the date of the balance sheet included in the Guarantor's most recent audited financial -E-1- statements, inquiries of officials of the Guarantor responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that: (A) at the date of the latest available consolidated balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to the date of delivery of such letter, there was any change in the capital stock of the Guarantor and its consolidated subsidiaries, any increase in long-term debt of the Guarantor and its consolidated subsidiaries or any decreases in allowance for credit loss or consolidated common shareholders' equity of the Guarantor and its consolidated subsidiaries, in each case as compared with amounts shown in the most recent consolidated balance sheet included in the Prospectus, except in each case for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; or (B) for the period from the date of the latest income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net income, consolidated net interest income before the provision for credit losses, consolidated net interest income after the provision for loan losses or in the ratio of earnings to fixed charges, except in each case for increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter. (vi) They have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information included in the Prospectus (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Guarantor and its subsidiaries subject to the internal controls of the Guarantor's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this Exhibit E. -E-2- EX-4.1 4 EXHIBIT 4.1 Exhibit 4.1 U.S. BANCORP 7.20% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES DUE 2028 (UNLESS OTHERWISE EXTENDED) OFFICERS' CERTIFICATE AND COMPANY ORDER Pursuant to the Indenture dated as of November 15, 1996 (the "Indenture"), between U.S. Bancorp, a Delaware corporation (the "Company"), and Wilmington Trust Company, as Debenture Trustee (the "Debenture Trustee") and resolutions adopted by the Company's Board of Directors on October 15, 1997, this Officers' Certificate is being delivered to the Debenture Trustee to establish the terms of a series of Securities in accordance with Section 3.1 of the Indenture, to establish the form of the Securities of such series in accordance with Section 2.1 of the Indenture, to request the authentication and delivery of the Securities of such series pursuant to Section 3.3 of the Indenture and to comply with the provisions of Section 1.2 of the Indenture. This Officers' Certificate shall be treated for all purposes under the Indenture as a supplemental indenture thereto. All conditions precedent provided for in the Indenture relating to the establishment of (i) a series of Securities and (ii) the form of Securities of such series have been complied with. Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture. A. ESTABLISHMENT OF A SERIES OF SECURITIES PURSUANT TO SECTION 3.1 OF THE INDENTURE. There are hereby established pursuant to Section 3.1 of the Indenture a series of Securities which shall have the following terms: (1) The Securities of such series shall bear the title "7.20% Junior Subordinated Deferrable Interest Debentures Due 2028." (2) The aggregate principal amount of such series of Securities to be issued pursuant to this Officers' Certificate and Company Order shall be limited to $360,825,000 (except for Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Sections 3.4, 3.5, 3.6, 9.6 or 11.7 of the Indenture and except for any Securities which, pursuant to Section 3.3 of the Indenture, are deemed never to have been authenticated and delivered thereunder). (3) The date on which the principal of the Securities is due and payable shall be April 1, 2028 (or such date to which the maturity of the Securities may be extended, as described in the Prospectus Supplement). (4) The Securities shall bear interest at the rate of 7.20% per annum (based upon a 360-day year of twelve 30-day months), from and including April 1, 1998, or from and including the most recent Interest Payment Date to which interest has been paid or duly provided for, as the case may be, payable quarterly in arrears on the first day of January, April, July and October in each year, commencing July 1, 1998 until the principal thereof is paid or made available for payment. Each such January 1, April 1, July 1, or October 1 shall be an "Interest Payment Date" for the Securities of such series, and the Business Day next preceding an Interest Payment Date shall be the "Regular Record Date" for the interest payable on such Interest Payment Date. Accrued interest that is not paid on such applicable Interest Payment Date will bear additional interest on the amount thereof (to the extent permitted by law) at a rate per annum of 7.20% thereof compounded quarterly. In addition, so long as no Event of Default with respect to the Securities has occurred or is continuing, the Company has the right under the Indenture at any time during the term of such Securities to defer the payment of interest at any time or from time to time for a period not exceeding 20 consecutive quarterly periods (each such period an "Extension Period"), provided that no Extension Period may extend beyond the Stated Maturity. At the end of such Extension Period, the Company must pay all interest then accrued and unpaid (together with interest thereon at the annual rate of 7.20%, compounded quarterly, to the extent permitted by applicable law). (5) Principal of (and premium, if any) and interest on the Securities will be payable, and, except as provided in Section 3.5 of the Indenture with respect to a Global Security (as defined below), the transfer of the Securities will be registrable and Securities will be exchangeable for Securities bearing identical terms and provisions at the corporate trust office of Wilmington Trust Company, in the City of New York, New York. (6) The Securities will be redeemable in whole at any time and in part from time to time, at the option of the Company at any time on or after April 1, 2003 subject to the Company having received prior approval of the Board of Governors of the Federal Reserve System (the "Federal Reserve"), at a redemption price equal to 100% of the principal amount of the Securities so redeemed, together with any accrued and unpaid interest to the date fixed for redemption. In addition, upon the occurrence of a Capital Treatment Event, an Investment Company Event or a Tax Event (each as defined below) the Company may, at its option and subject to receipt of prior approval of the Federal Reserve if -2- then required under applicable capital guidelines or policies of the Federal Reserve, redeem the Securities in whole (but not in part) at any time within 90 days of the occurrence of such Capital Treatment Event, Investment Company Event or Tax Event at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date of redemption. "CAPITAL TREATMENT EVENT" means the reasonable determination by the Company that, as a result of any amendment to, or change (including any prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision thereof or therein, or as a result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which prospective change, pronouncement or decision is announced on or after the date of issuance of the 7.20% Trust Originated Preferred Securities (Liquidation Amount $25 per Preferred Security) (the "Preferred Securities") of USB Capital II, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), there is more than an insubstantial risk of impairment of the Company's ability to treat the Preferred Securities (or any substantial portion thereof) as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital adequacy guidelines of the Federal Reserve, as then in effect and applicable to the Company. "INVESTMENT COMPANY EVENT" means the receipt by the Company and the Trust of an opinion of counsel experienced in such matters to the effect that, as a result of any change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, the Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act of 1940, as amended, which change becomes effective on or after the date of issuance of the Preferred Securities of the Trust. "TAX EVENT" means the receipt by the Company and the Trust of an opinion of counsel experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such prospective change, pronouncement or decision is announced on or after the date of issuance of the Preferred Securities of the Trust, there is more than an insubstantial risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States Federal income tax with respect to income received or accrued on the Securities, (ii) interest payable by the Company on the Securities is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States Federal income tax purposes or (iii) the Trust is, or will be -3- within 90 days of the date of such opinion, subject to more than a DE MINIMIS amount of other taxes, duties or other governmental charges. With respect to Securities which are no longer held by the Trust, "Tax Event" means receipt by the Company of an opinion of counsel experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which prospective change, pronouncement or decision is announced on or after the date or issuance of the Securities, there is more than an insubstantial risk that interest payable by the Company on the Securities is not, or within 90 days of the date of such opinion will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes. (7) The Company shall not be obligated to prepay, repay or purchase any Securities pursuant to any sinking fund, amortization or analogous provisions or at the option of the Holder. (8) The Securities will be issued only in fully registered form and the authorized minimum denomination of the Securities shall be $25 and any integral multiple of $25 in excess thereof. (9) The Securities shall be denominated, and payments of principal of (and premium, if any) and interest on the Securities of such series will be payable, in United States dollars. (10) The Securities shall be subject to the Events of Default specified in Section 5.1, paragraphs (1) through (7), of the Indenture. (11) The portion of the principal amount of the Securities which shall be payable upon declaration of acceleration of maturity thereof shall not be other than the principal amount thereof, provided, that, if such acceleration is declared by the Holders of at least 25% in aggregate liquidation amount of the Preferred Securities of the Trust then outstanding, then, upon such declaration of acceleration, the Securities which shall be payable shall be the principal amount thereof plus accrued interest. (12) The Securities will be issued in fully registered form, without coupons. The Securities will not be issued in bearer form. (13) The amount of payments of principal of and any premium or interest on the Securities will not be determined with reference to an index. -4- (14) The Securities shall not be issued in the form of a temporary Global Security (as defined below). (15) The Securities will initially be in certificated form registered in the name of the name of Wilmington Trust Company, as Property Trustee (the "Certificated Securities"). The Securities may, in the sole discretion of the Company, be deposited with, and on behalf of, The Depository Trust Company, New York, New York, as Depositary, and will be represented by a global security (a "Global Security") registered in the name of a nominee of the Depositary. If, and so long as the Depositary or its nominee is the registered holder of any Global Security, the Depositary or its nominee, as the case may be, will be considered the sole Holder of the Securities of such series represented by such Global Security for all purposes under the Indenture and the Securities. The Certificated Securities or the Global Securities, as the case may be, shall bear no legends. (16) The Trustee shall be Paying Agent. (17) The Securities will not be convertible into any other securities or property of the Company. The Securities of any series may not be exchanged for Securities of any other series. (18) The Trust Agreement, the Amended and Restated Trust Agreement and the Guarantee Agreement are in the forms attached hereto as Exhibits A, B and C respectively. (19) The Securities are subordinate and subject in right of payment to the prior payment in full of all amounts then due and payable in respect of all Senior and Subordinated Debt, as provided in the Indenture. (20) The Securities of such series shall have such other terms and provisions as are provided in the form set forth in Exhibit D hereto. B. ESTABLISHMENT OF FORMS OF SECURITIES PURSUANT TO SECTION 2.1 OF INDENTURE. It is hereby established pursuant to Section 2.1 of the Indenture that the Global Security representing the Securities shall be substantially in the form attached as Exhibit D hereto. -5- C. ORDER FOR THE AUTHENTICATION AND DELIVERY OF SECURITIES PURSUANT TO SECTION 3.3 OF THE INDENTURE. It is hereby ordered pursuant to Section 3.3 of the Indenture that the Trustee authenticate, in the manner provided by the Indenture, Securities in the aggregate principal amount of $360,825,000 registered in the name of Wilmington Trust Company, as Property Trustee, which Securities have been heretofore duly executed by the proper officers of the Company and delivered to you as provided in the Indenture, and to deliver said authenticated Securities to Wilmington Trust Company or its custodian on or before 10:00 a.m., New York City time, on April 1, 1998. D. OTHER MATTERS. Attached as Exhibit E hereto is a true and correct copy of resolutions adopted by the Board of Directors of the Company at a meeting on October 15, 1997, and of an authorization dated October 15, 1997, duly executed by the Chief Financial Officer of the Company, designating certain additional Authorized Officers pursuant to the resolutions adopted October 15, 1997; such resolutions and authorization have not been further amended, modified or rescinded and remain in full force and effect; and such resolutions and authorization (together with this Officer's Certificate) are the only resolutions and authorizations or other action adopted by the Company's Board of Directors or by any Authorized Officers relating to the offering and sale of the Securities. The undersigned have read the pertinent sections of the Indenture including the related definitions contained therein. The undersigned have examined the resolutions adopted by the Board of Directors of the Company. In the opinion of the undersigned, the undersigned have made such examination or investigation as is necessary to enable the undersigned to express an informed opinion as to whether or not the conditions precedent to the establishment of (i) a series of Securities, (ii) the forms of such Securities and (iii) authentication of such series of Securities, contained in the Indenture have been complied with. In the opinion of the undersigned, such conditions have been complied with. -6- IN WITNESS WHEREOF, the undersigned have executed this Certificate this 1st day of April, 1998. U.S. BANCORP By /s/ David P. Grandstrand --------------------------- David P. Grandstrand Senior Vice President & Treasurer By /s/ Kenneth D. Nelson --------------------------- Kenneth D. Nelson Vice President -7- EX-4.2 5 EXHIBIT 4.2 Exhibit 4.2 This Trust Originated Preferred Security 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 "Depository") or a nominee of the Depository. This Trust Originated Preferred Security is exchangeable for Trust Originated Preferred Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Trust Agreement and no transfer of this Trust Originated Preferred Security (other than a transfer of this Trust Originated Preferred Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in limited circumstances. The Trust Originated Preferred Securities evidenced by this certificate are not deposits or other obligations of a bank and are not insured by the Federal Deposit Insurance Corporation or any other governmental agency. Unless this Trust Originated Preferred Security is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York) to USB Capital II or its agent for registration of transfer, exchange or payment, and any Trust Originated Preferred Security issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of The Depository Trust Company and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein. CERTIFICATE NUMBER 2 NUMBER OF PREFERRED SECURITIES 8,000,000 CUSIP NO.: 903332M 20 0 CERTIFICATE EVIDENCING TRUST ORIGINATED PREFERRED SECURITIES OF USB CAPITAL II 7.20% TRUST ORIGINATED PREFERRED SECURITIES (LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY) USB Capital II, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), hereby certifies that CEDE & CO. (the "Holder") is the registered owner of EIGHT MILLION (8,000,000) Trust Originated Preferred Securities of the Trust representing an undivided beneficial interest in the assets of the Trust and designated the USB Capital II 7.20% Trust Originated Preferred Securities (liquidation amount $25 per Trust Originated Preferred Security) (the "Preferred Securities"). The Preferred Securities 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 Preferred Securities are set forth in, and this certificate and the Preferred 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 April 1, 1998, as the same may be amended from time to time (the "Trust Agreement"), including the designation of the terms of the Preferred Securities as set forth therein. The Holder is entitled to the benefits of the Guarantee Agreement entered into by U.S. Bancorp, as Guarantor, and Wilmington Trust Company, as guarantee trustee, dated as of April 1, 1998, (the "Guarantee"), to the extent provided therein. The Trust will furnish a copy of the Trust Agreement and the Guarantee to the Holder without charge upon written request to the Trust at its principal place of business or registered office. Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder. IN WITNESS WHEREOF, one of the Administrative Agents of the Trust has executed this certificate this 1st day of April, 1998. USB CAPITAL II By: ---------------------------------------- Name: ADMINISTRATIVE TRUSTEE ASSIGNMENT FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred Security to: (Insert assignee's social security or tax identification number) - --------------- (Insert address and zip code of assignee) and irrevocably appoints agent to transfer this Preferred Security Certificate on the books of the Trust. The agent may substitute another to act for him or her. Date: Signature(s): -------------------------------------------------------------------- -------------------------------------------------------------------- (Sign exactly as your name appears on the other side of this Preferred Security Certificate) NOTICE: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15. EX-4.3 6 EXHIBIT 4.3 Exhibit 4.3 U.S. BANCORP 7.20% JUNIOR SUBORDINATED DEBENTURE DUE APRIL 1, 2028 (UNLESS OTHERWISE EXTENDED) Registered No.: 1 U.S. BANCORP, a corporation organized and existing under the laws of Delaware (hereinafter called the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to WILMINGTON TRUST COMPANY, as Property Trustee, the principal sum of THREE HUNDRED SIXTY MILLION EIGHT HUNDRED TWENTY FIVE THOUSAND DOLLARS ($360,825,000) on April 1, 2028 (or such date to which the maturity of this Security may be extended, as described in the Prospectus Supplement) (the "Stated Maturity"). The Company further promises to pay interest on said principal sum from April 1, 1998 or from the most recent interest payment date (each such date, an "Interest Payment Date") on which interest has been paid or duly provided for, quarterly (subject to deferral as set forth herein) in arrears on the first day of January, April, July and October each year, commencing July 1, 1998 at the rate of 7.20% per annum, until the principal hereof shall have become due and payable, plus Additional Interest, if any, until the principal hereof is paid or duly provided for or made available for payment and on any overdue principal and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the rate of 7.20% per annum, compounded quarterly. The amount of interest payable for any period shall be computed on the basis of twelve 30-day months and a 360-day year. The amount of interest payable for any partial period shall be computed on the basis of the number of days elapsed in a 360-day year of twelve 30-day months. In the event that any date on which interest is payable on this Security is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay), except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on the date the payment was originally payable. A "Business Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York are authorized or required by law or executive order to remain closed or (iii) a day on which the Corporate Trust Office of the Trustee, or the principal office of the Property Trustee under the Trust Agreement (hereinafter referred to) for USB Capital II is closed for business. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment, which shall be the Business Day immediately preceding such Interest Payment Date. Any such interest installment not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture. So long as no Event of Default has occurred and is continuing, the Company shall have the right at any time during the term of this Security to defer payment of interest on this Security, at any time or from time to time, for up to 20 consecutive quarterly interest payment periods with respect to each deferral period (each an "Extension Period"), (during which Extension Periods the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid (together with Additional Interest thereon to the extent permitted by applicable law)); PROVIDED, HOWEVER, that no Extension Period shall extend beyond the Stated Maturity of the principal of this Security; PROVIDED, FURTHER, that during any such Extension Period, the Company shall not, and shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions or redeem, purchase, acquire or make a liquidation payment with respect to, any of the Company's capital stock (which includes common and preferred stock), or (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 (including Securities issued by the Company pursuant to the Indenture other than the Securities represented by this certificate) that ranks PARI PASSU with or junior in interest to this Security, or (iii) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiaries of the Company (if such guarantee ranks PARI PASSU in all respects with or junior in interest to this Security (other than (a) dividends or distributions in capital stock of the Company (which includes common and preferred stock), (b)any declaration of a dividend in connection with the implementation of a Rights Plan, or the issuance of any Common Stock or any class or series of preferred stock of the Company under any Rights Plan in the future or the redemption or repurchase of any such rights pursuant thereto, (c)payments under the Guarantee related to the Securities issued by USB Capital II and (d)purchases of Common Stock related to the -2- issuance of Common Stock or rights under any of the Company's benefit plans for its directors, officers or employees. Prior to the termination of any such Extension Period, the Company may further extend such Extension Period, PROVIDED that such extension does not cause such Extension Period to exceed 20 consecutive interest payment periods or to extend beyond the Stated Maturity. Upon the termination of any such Extension Period and upon the payment of all amounts then due, and subject to the foregoing limitation, the Company may elect to begin a new Extension Period. No interest shall be due and payable during an Extension Period except at the end thereof. The Company shall give the Trustee, the Property Trustee and the Administrative Trustees of USB Capital II notice of its election to begin any Extension Period at least one Business Day prior to the earlier of (i) the date on which Distributions on the Preferred Securities (as defined below) would be payable except for the election to begin such Extension Period, or (ii) the date the Administrative Trustees are required to give notice to the New York Stock Exchange, the Nasdaq National Market or other applicable stock exchange or automated quotation system on which the Preferred Securities are then listed or quoted or to holders of such Preferred Securities of the record date or (iii) the date such Distributions are payable, but in any event not less than one Business Day prior to such record date. The Trustee shall give notice of the Company's election to begin a new Extension Period to the holders of the Junior Subordinated Debentures. There is no limitation on the number of times that the Company may elect to begin an Extension Period. Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Trustee or at the office of such paying agent or paying agents as the Company may designate from time to time, maintained for that purpose in the United States, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at the option of the Company payment of interest may be made (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Securities Register or (ii) by transfer to an account maintained by the person entitled thereto, in immediately available funds, at such place and to such account as may be designated by the Person entitled thereto as specified in the Securities Register. The indebtedness evidenced by this Security is, to the extent provided in the Indenture, unsecured and will rank junior and subordinate and subject in right of payments to the prior payment in full of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance hereof, waives all notice of the acceptance of the subordination -3- provisions contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding or hereafter incurred, and waives reliance by each such holder upon said provisions. Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. -4- IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. U.S. BANCORP Dated: April 1, 1998 By ---------------------------------- David P. Grandstrand Senior Vice President and Treasurer TRUSTEE'S CERTIFICATE OF AUTHENTICATION [SEAL] THIS IS ONE OF THE SECURITIES OF THE SERIES DESIGNATED HEREIN AND ISSUED PURSUANT TO THE WITHIN-MENTIONED Attest INDENTURE. ------------------------------- James L. Chosy Vice President and Assistant Secretary WILMINGTON TRUST COMPANY, as Trustee By ---------------------------- Its -------------------- -5- FORM OF REVERSE OF SECURITY. U.S. BANCORP 7.20% JUNIOR SUBORDINATED DEBENTURE DUE APRIL 1, 2028 (UNLESS OTHERWISE EXTENDED) This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued in one series under a Junior Subordinated Indenture, dated as of November 15, 1996, between the Company and Wilmington Trust Company, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture) as supplemented pursuant to Section 3.1 thereof by the Officers' Certificate dated April 1, 1998 (herein called the "Indenture"), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof, limited in aggregate principal amount to $360,825,000. All terms used in this Security that are defined in the Indenture and in the Amended and Restated Trust Agreement, dated as of April 1, 1998, as amended (the "Trust Agreement"), for USB Capital II among the Company, as Depositor, and the Trustees named therein, shall have the meanings assigned to them in the Indenture or the Trust Agreement, as the case may be. This Security will be redeemable in whole at any time and in part from time to time, at the option of the Company at any time on or after April 1, 2003 subject to the Company having received prior approval of the Board of Governors of the Federal Reserve System (the "Federal Reserve"), at a redemption price equal to 100% of the principal amount of the Security, together with any accrued and unpaid interest to the date fixed for redemption. In addition, upon the occurrence of a Capital Treatment Event, Investment Company Event or a Tax Event (as defined below) the Company may, at its option and subject to receipt of prior approval of the Federal Reserve if then required under applicable capital guidelines or policies of the Federal Reserve, redeem the Securities in whole (but not in part) at any time within 90 days of the occurrence of such Capital Treatment Event, Investment Company Event or Tax Event, at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest thereon to the date fixed for redemption. "CAPITAL TREATMENT EVENT" means the reasonable determination by the Company that, as a result of any amendment to, or change (including any prospective change) in, the laws (or any regulations thereunder) of the United States -6- or any political subdivision thereof or therein, or as a result of any official or administrative pronouncement or action or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which prospective change, pronouncement or decision is announced on or after the date of issuance of the 7.20% Trust Originated Preferred Securities (Liquidation Amount $25 per Preferred Security) (the "Preferred Securities") of USB Capital II, a statutory business trust formed under the laws of the State of Delaware (the "Trust"), there is more than an insubstantial risk of impairment of the Company's ability to treat the Preferred Securities (or any substantial portion thereof) as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital adequacy guidelines of the Federal Reserve, as then in effect and applicable to the Company. "INVESTMENT COMPANY EVENT" means the receipt by the Company and the Trust of an opinion of counsel experienced in such matters, to the effect that, as a result of any change in law or regulation or a change in interpretation or application of law or regulation by any legislative body, court, governmental agency or regulatory authority, the Trust is or will be considered an "investment company" that is required to be registered under the Investment Company Act of 1940, as amended, which change becomes effective on or after the date of issuance of the Preferred Securities of the Trust. "TAX EVENT" means the receipt by the Company and the Trust of an opinion of counsel experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or such prospective change, pronouncement or decision is announced on or after the date of issuance of the Preferred Securities of the Trust, there is more than an insubstantial risk that (i) the Trust is, or will be within 90 days of the date of such opinion, subject to United States Federal income tax with respect to income received or accrued on the Securities, (ii) interest payable by the Company on the Securities is not, or within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States Federal income tax purposes or (iii) the Trust is, or will be within 90 days of the date of such opinion of counsel, subject to more than a DE MINIMIS amount of other taxes, duties or other governmental charges. With respect to Securities which are no longer held by the Trust, "Tax Event" means receipt by the Company of an opinion of counsel experienced in such matters to the effect that, as a result of any amendment to, or change (including any announced prospective change) in, the laws (or any regulations thereunder) of the United States or any political subdivision or taxing authority thereof or therein, or as a result of any official administrative pronouncement or judicial decision -7- interpreting or applying such laws or regulations, which amendment or change is effective or which prospective change, pronouncement or decision is announced on or after the date or issuance of the Securities, there is more than an insubstantial risk that interest payable by the Company on the Securities is not, or within 90 days of the date of such opinion will not be, deductible by the Company, in whole or in part, for United States federal income tax purposes. Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of Securities to be redeemed at its registered address. Unless the Company defaults in payment of the redemption price, on and after the redemption date interest ceases to accrue on such Securities called for redemption. The Indenture contains provisions for satisfaction and discharge of the entire indebtedness of this Security upon compliance by the Company with certain conditions set forth in the Indenture. The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee at any time to enter into a supplemental indenture or indentures for the purpose of modifying in any manner the rights and obligations of the Company and of the Holders of the Securities, with the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series to be affected by such supplemental indenture. The Indenture also contains provisions permitting Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. As provided in and subject to the provisions of the Indenture, if an Event of Default with respect to the Securities of this series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of this series may declare the principal amount of all the Securities of this series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), PROVIDED THAT, in the case of the Securities of this series issued to an FBS Trust, if upon an Event of Default, the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of this series fails to declare the principal of all the Securities of this series to be immediately due and payable, the holders of at least 25% in aggregate Liquidation Amount of the Preferred Securities -8- then outstanding shall have such right by a notice in writing to the Company and the Trustee; and upon any such declaration the principal amount of and the accrued interest (including any Additional Interest) on all the Securities of this series shall become immediately due and payable, provided that the payment of principal and interest (including any Additional Interest) on such Securities shall remain subordinated to the extent provided in Article XIII of the Indenture. No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of (and premium, if any) and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Securities Register, upon surrender of this Security for registration of transfer at the office or agency of the Company maintained under Section 10.2 of the Indenture duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. The Securities of this series are issuable only in registered form without coupons in denominations of minimum denominations of $25 and any integral multiples of $25 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of such series of a different authorized denomination, as requested by the Holder surrendering the same. The Company and, by its acceptance of this Security or a beneficial interest therein, the Holder of, and any Person that acquires a beneficial interest in, this Security agree that for United States Federal, state and local tax purposes it is intended that this Security constitute indebtedness. -9- THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF. -10- ------------------------------------- ABBREVIATIONS The following abbreviations, when used in 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 TEN ENT--as tenants by the entireties JT TEN--as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT-- Custodian --------------- ------------------ (Cust) (Minor) under Uniform Gift to Minors Act --------------------------------- (State) Additional abbreviations may be used though not in the above list. --------------------------------------------- -11- FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE - -------------| - -------------|--------------------------------------------------------------- (Name and address of assignee, including zip code, must be printed or typewritten) - ----------------------------------------------------------------------------- the within Note, and all rights thereunder, hereby irrevocably constituting and appointing - ----------------------------------------------------------------------------- Attorney to transfer said Note on the books of the within Company, with full power of substitution in the premises Dated --------------- ----------------------------------- ----------------------------------- NOTICE: The signature to this assignment must correspond with the name as written upon the within Note in every particular, without alteration or enlargement or any change whatever and must be guaranteed by a commercial bank or trust company having its principal office or a correspondent in the City of New York or by a member of the New York Stock (Exchange). -12- -----END PRIVACY-ENHANCED MESSAGE-----