exv4w5






Exhibit 4.5



 





EIGHTH SUPPLEMENTAL INDENTURE




between



U.S. BANCORP



and



WILMINGTON TRUST COMPANY,

as Trustee



DATED AS OF JUNE 10, 2010




 





Supplement to Junior Subordinated Indenture dated as of April 28, 2005,

as supplemented by that certain First Supplemental Indenture

dated as of August 3, 2005 and that certain Second Supplemental Indenture

dated as of December 29, 2005 and that certain Third Supplemental Indenture

dated as of March 17, 2006 and that certain Fourth Supplemental Indenture dated as of

April 12, 2006 and that certain Fifth Supplemental Indenture dated as of August 30, 2006

and that certain Sixth Supplemental Indenture dated as of February 1, 2007 and that certain

Seventh Supplemental Indenture dated as of December 10, 2009


 






 









 








     EIGHTH SUPPLEMENTAL INDENTURE, dated as of June 10, 2010 (this “Supplemental Indenture”),
among U.S. BANCORP, a Delaware corporation (hereinafter called the “Company”), having its principal
office at 800 Nicollet Mall, Minneapolis, Minnesota 55402, WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as successor Trustee (hereinafter called the “Trustee”), and U.S. Bank
National Association, as Securities Registrar and Paying Agent.



RECITALS




     WHEREAS, the Company and Delaware Trust Company, National Association, a national banking
association organized and existing under the laws of the United States of America, as original
Trustee (hereinafter called the “Original Trustee”), have entered into that certain Junior
Subordinated Indenture, dated as of April 28, 2005 (the “Base Indenture”), which was amended and
supplemented by the First Supplemental Indenture, dated as of August 3, 2005 (the “First
Supplemental Indenture”), which was further amended and supplemented by the Second Supplemental
Indenture, dated as of December 29, 2005, among the Company, the Original Trustee and the Trustee
(the “Second Supplemental Indenture”), which was further amended and supplemented by the Third
Supplemental Indenture, dated as of March 17, 2006, (the “Third Supplemental Indenture”), which was
further amended and supplemented by the Fourth Supplemental Indenture, dated as of April 12, 2006
(the “Fourth Supplemental Indenture”), which was further amended and supplemented by the Fifth
Supplemental Indenture, dated as of August 30, 2006 (the “Fifth Supplemental Indenture”), which was
further amended and supplemented by the Sixth Supplemental Indenture, dated as of February 1, 2007
(the “Sixth Supplemental Indenture”), and which was further amended and supplemented by the Seventh
Supplemental Indenture, dated as of December 10, 2009 (the “Seventh Supplemental Indenture” and,
together with the Junior Subordinated Indenture, the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the
Fifth Supplemental Indenture and the Sixth Supplemental Indenture, collectively referred to herein
as the “Indenture”); providing for the issuance from time to time of Securities;



     WHEREAS, pursuant to Section 9.1(3) of the Base Indenture, the Company and the Trustee entered
into the Third Supplemental Indenture to establish the form and terms of the Company’s Remarketable
Junior Subordinated Notes due 2042 (the “Original Notes”) pursuant to Sections 2.1 and 3.1 of the
Base Indenture;



     WHEREAS, on March 17, 2006, pursuant to Section 2.1 and 3.1 of the Base Indenture, the Company
issued $1,251,000,000 aggregate principal amount of the Original Notes to USB Capital Trust IX (the
“Trust”), a Delaware statutory trust, in connection with the Trust’s public offering of its Capital
Securities known as 6.189% Fixed-to-Floating Rate Normal Income Trust Securities (the “Normal
ITS”);



     WHEREAS, the entire $1,251,000,000 aggregate principal amount of Original Notes remain
Outstanding and held of record by the Trust on the date hereof;



     WHEREAS, Section 9.2 of the Base Indenture provides that (A) with the consent of the Holders
of not less than a majority in principal amount of the Outstanding Securities of each series
affected by such supplemental indenture, by Act of said Holders delivered to the Company



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and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental thereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under the Indenture; and (B) in the
case of the Securities of a series issued to a USB Trust, so long as any of the corresponding
series of Capital Securities issued by such USB Trust remains outstanding, no such amendment shall
be made that adversely affects the holders of such Capital Securities in any material respect
without the prior consent of the holders of at least a majority of the aggregate liquidation
preference of such Capital Securities then outstanding;




     WHEREAS, the Company has solicited consents upon the terms and subject to the conditions set
forth in the prospectus and consent solicitation statement dated June 4, 2010 and in the related
Letter of Transmittal and Consent, as each may be amended from time to time, from each Holder of
Normal ITS to the amendments to the Indenture set forth below in this Supplemental Indenture and to
authorize the Trust, as Holder of the Original Notes, to consent to such amendments (the “Proposed
Amendments”);



     WHEREAS, the Company has received the consents from Holders of at least a majority in
aggregate liquidation amount of the outstanding Normal ITS to effect the Proposed Amendments and
make the changes to the Indenture embodied in and to be effected by this Supplemental Indenture
pursuant to Section 9.2 of the Base Indenture;



     WHEREAS, the Company has received the consent of the Trust, as Holder of the outstanding
Original Notes, to effect the Proposed Amendments and make the changes to the Indenture embodied in
and to be effected by this Supplemental Indenture pursuant to Section 9.2 of the Base Indenture;



     WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this
Supplemental Indenture have been satisfied;



     WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the
Company and the Trustee, in accordance with its terms, and a valid amendment of, and supplement to,
the Indenture have been done; and



     WHEREAS, pursuant to Section 9.2 of the Base Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture;



     NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, it is mutually covenanted and agreed
that the Indenture is supplemented and amended to the extent and for the purposes expressed herein,
as follows:



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ARTICLE I




CAPITALIZED TERMS



     Section 1.1. Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Indenture.



ARTICLE II




AMENDMENTS TO CERTAIN PROVISIONS OF ARTICLE 1 OF THE THIRD

SUPPLEMENTAL INDENTURE



     Section 2.1. The definition of “Remarketing Date” in Section 1.1 of the Third Supplemental
Indenture is hereby deleted in its entirety.



     Section 2.2. The definition of “Trust Agreement” in Section 1.1 of the Third Supplemental
Indenture is hereby amended and restated in its entirety as follows:




     “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of
March 17, 2006, among the Company, as Depositor, Wilmington Trust Company, as the Property
Trustee and the Delaware Trustee, and the Administrative Trustees (each as named therein)
and the several Holders (as defined therein) as amended by Amendment No. 1 to the Amended
and Restated Trust Agreement, dated as of June 10, 2010, relating to the Trust.



     Section 2.3. The following definition is hereby added to 1.1 of the Third Supplemental
Indenture in the appropriate alphabetical location:




     “Remarketing Period” means the thirty Business Day period beginning on the thirty-third
Business Day preceding each of March 15, June 15, September 15 and December 15, 2011 and
March 15, 2012 until the settlement of a Successful Remarketing, or if an Early Settlement
Event shall have occurred, each of the dates determined in accordance with Section 3.4.



ARTICLE III




AMENDMENTS TO CERTAIN PROVISIONS OF ARTICLE 2 OF THE THIRD

SUPPLEMENTAL INDENTURE



     Section 3.1. Section 2.4(a) of the Third Supplemental Indenture is hereby amended and
restated in its entirety as follows:



     (a) The Notes shall be issued initially in fully registered form in the name of the Securities
Intermediary and the Custodial Agent, in their respective capacities as such. For so long as such
Notes are held by the Collateral Agent and the Custodial Agent, each such Note



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shall represent the principal amount so indicated in the Securities Register, provided that
the aggregate principal amount of all such Notes shall at all times equal the principal amount
issued in accordance with Section 2.1, as adjusted for any subsequent cancellation pursuant to
Section 3.9 of the Base Indenture.




     Section 3.2. The following Section 2.4(f) is hereby added to the Third Supplemental
Indenture:



     (f) In the event that any Pledged Note is to be released from the Pledge and transferred to
the Property Trustee pursuant to Section 2.04 of the Collateral Agreement (a “Cancelled Note”), as
a result of the retirement of any Subject Normal ITS (as defined in the Trust Agreement) pursuant
to Section 4.9 of the Trust Agreement as provided for in said Section 2.04 of the Collateral
Agreement, such release and transfer shall be evidenced by an endorsement by the Collateral Agent
or the Securities Registrar on the Note held by the Collateral Agent reflecting a reduction in the
principal amount of such Note equal in amount to the principal amount of the Cancelled Note. The
Collateral Agent shall confirm any such reduced principal amount by faxing or otherwise delivering
a photocopy of such endorsement made on the Note evidencing such reduced principal amount to the
Trustee at the facsimile number or address of the Trustee provided for notices to the Property
Trustee in the Collateral Agreement (or at such other facsimile number or address as the Property
Trustee shall provide to the Collateral Agent).



ARTICLE IV




AMENDMENTS TO CERTAIN PROVISIONS OF ARTICLE 3 OF THE THIRD

SUPPLEMENTAL INDENTURE



     Section 4.1. Section 3.2 of the Third Supplemental Indenture is hereby amended as set forth
below:



     (a) The first paragraph of Section 3.2 is hereby amended and restated in its entirety as
follows:




     In connection with Remarketings, the Company shall have the right hereunder, subject to
Section 3.3(a), without the consent of any Holder of the Notes, to change certain terms of
the Notes as provided below in this Section 3.2. By not later than the
21st day prior to each Remarketing Period, the Company will specify the
following information or decisions in a notice to the Remarketing Agent, the Collateral
Agent, the Custodial Agent, the Property Trustee (on behalf of the Trust) and the Trustee
(clauses (a) through (f) applying only if the Remarketing is Successful and clause
(g) applying only in the case of a Failed Remarketing):



     (b) The word “and” appearing at the end of Section 3.2(e) is hereby deleted.



     (c) The following new Section 3.2(f) is hereby added to the Third Supplemental Indenture, and
the existing Section 3.2(f) is hereby renumbered as Section 3.2(g):



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     (f) whether the Notes will be remarketed in one or more Series, which may include, at
the Company’s sole option, different (i) Stated Maturity Dates, (ii) rates of interest, and
(iii) denominations and interest payment dates, as such terms may be determined in
accordance with the Indenture, as the same may be further supplemented from time to time by
a supplemental indenture as permitted by Section 3.6 hereof; if the Notes are to be
remarketed in more than one series, the term “Notes” as used in this Section 3.2 and in
Section 3.3 shall be deemed to refer to the Notes of any such series; and



     Section 4.2. Section 3.3 of the Third Supplemental Indenture is hereby amended as set forth
below:



     (a) The words “any Remarketing Date” in Section 3.3(b) are hereby deleted and replaced in
their entirety with “the final day of any Remarketing Period”.



     (b) Section 3.3(d)(iv) is hereby amended and restated in its entirety as follows:




     (iv) the Company and the Remarketing Agent shall attempt another Remarketing during the
next Remarketing Period.



     Section 4.3. Section 3.4 of the Third Supplemental Indenture is hereby amended and restated
in its entirety as follows:



     Section 3.4 Early Remarketing.




     If an Early Settlement Event occurs prior to the Stock Purchase Date, the Remarketing
Periods shall be the thirty Business Day periods commencing on the thirty-third Business Day
prior to March 15, June 15, September 15 or December 15, that is the first such date that is
at least 30 days after the occurrence of such Early Settlement Event, and concluding with
the earlier to occur of the fifth such date and a Successful Remarketing; provided that in
the case of an Early Settlement Event of the type described in clause (v) of the definition
of such term, there shall be only one Remarketing Period and the Reset Rate or Reset Spread
shall not be subject to the Fixed Rate Reset Cap or Floating Rate Reset Cap, as the case may
be, and if the Remarketing conducted on such date is not Successful, it shall be a Failed
Remarketing and the Stock Purchase Date shall be the next succeeding February 15, May 15,
August 15 or November 15 (or if such day is not a Business Day, the next Business Day).



     Section 4.4. Section 3.5 of the Third Supplemental Indenture is hereby amended as set forth
below:



     (a) The words “any Remarketing Date” in Sections 3.5(a) and (b) are hereby deleted and
replaced in their entirety with “the final day of any Remarketing Period”.



     (b) The following new Section 3.5(c) is hereby added to the Third Supplemental Indenture



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     (c) If on any Business Day during a Remarketing Period other than the last day thereof
the Company has determined to postpone the Remarketing until the next Business Day, the
Company shall issue a press release through Bloomberg Business News or other reasonable
means of distribution stating that such Remarketing has been postponed and shall post such
information on its website on the World Wide Web.



     Section 4.5. Section 3.6 of the Third Supplemental Indenture is hereby amended and restated
in its entirety as follows:




	 	 	Section 3.6 Supplemental Indenture.






     Notwithstanding any provision of the Base Indenture to the contrary, the Company and
the Trustee may enter into a supplemental indenture without the consent of any Holder of the
Notes to reflect any modifications to the terms of the Notes pursuant to the terms of this
Article III, including, without limitation, to give effect to the issuance of remarketed
Notes in one or more series and to amend the form of Note in Article V hereof to give effect
thereto, and to provide for the exchange of the Notes for Notes in the form reflecting such
modifications and adopted pursuant to such supplemental indenture.



ARTICLE V




NEW SERIES OF NOTES FOLLOWING A SUCCESSFUL REMARKETING



     Section 5.1. Upon a Successful Remarketing in which more than one series of Notes are to be
issued hereunder, the final terms of any series of Notes will be reflected in the security
certificate or certificates evidencing such series of Notes and Article V hereof shall be deemed to
be amended thereby.



     Section 5.2. Upon a Successful Remarketing in which more than one series of Notes are to be
issued hereunder, any reference in the Indenture to “series” and “Notes” shall, unless otherwise
required by the context, be deemed to be a reference to each separate series of Notes.



     Section 5.3. Upon a Successful Remarketing in which more than one series of Notes are to be
issued hereunder, upon the execution of one or more supplemental indentures specified in Section
4.4 hereof, Notes of each series in the respective aggregate principal amounts specified in such
supplemental indenture or supplemental indentures shall be executed by the Company and delivered to
the Trustee or an Authenticating Agent for authentication, and the Trustee or an Authenticating
Agent shall thereupon authenticate and deliver said Notes of such series in accordance with a
Company Order.



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ARTICLE VI




MISCELLANEOUS



     Section 6.1. Effectiveness. This Supplemental Indenture will become effective upon its
execution and delivery.



     Section 6.2. Ratification of Indenture. The Indenture as supplemented by this Supplemental
Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein provided.



     Section 6.3. Further Assurances. The Company will, at its own cost and expense, execute and
deliver any documents or agreements, and take any other actions that the Trustee or its counsel may
from time to time request in order to assure the Trustee of the benefits of the rights granted to
the Trustee under the Indenture, as supplemented and amended by this Supplemental Indenture.



     Section 6.4. Effect of Recitals. The recitals contained herein shall be taken as the
statements of the Company, and the Trustee does not assume any responsibility for their
correctness. The Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture.



     Section 6.5. Effect of Headings. The Article and Section headings herein are for convenience
only and shall not effect the construction hereof.



     Section 6.6. Successors and Assigns. All covenants and agreements in the Indenture, as
amended and supplemented by this Supplemental Indenture, by the Company shall bind its successors
and assigns, whether so expressed or not.



     Section 6.7. Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture is
intended to or shall provide any rights to any parties other than those expressly contemplated by
this Supplemental Indenture.



     Section 6.8. Trust Indenture Act Controls. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of
the Trust Indenture Act of 1939 through operation of Section 318(c) thereof, such imposed duties
shall control.



     Section 6.9. Severability. In case any provision of this Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.



     Section 6.10. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.



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



* * * *






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     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and attested, all as of the
day and year first above written.



	 	 	 	 	 
	 	U.S. BANCORP

 	 
	 	By:  	/s/ Kenneth D. Nelson
 	 
	 	 	Its: Executive Vice President and Treasurer 



	 	 	 	 	 
	 	Attest:

 	 
	 	By  	/s/ Laura F. Bednarski
 	 
	 	Its 	 Assistant Secretary 	 



	 	 	 	 	 
	 	WILMINGTON TRUST COMPANY,

as Trustee

 	 
	 	By:  	/s/ Denise M. Geran
 	 
	 	 	Its: Vice President 	 



	 	 	 	 	 
	 	Attest:

 	 
	 	By  	 /s/ Michael H. Wass
 	 
	 	Its 	Senior Financial Services Officer 	 



	 	 	 	 	 
	 	U.S. BANK NATIONAL ASSOCIATION,

as Securities Registrar and Paying Agent

 	 
	 	By:  	/s/ Patrick J. Crowley
 	 
	 	 	Its: Vice President 	 
	 	 	 	 
	 




Eighth Supplemental Indenture