exv4w5



 






Exhibit 4.5




 





SECOND AMENDED AND RESTATED TRUST AGREEMENT




By and Among




U.S. BANCORP,

as Sponsor




WILMINGTON TRUST COMPANY,

as Property Trustee




WILMINGTON TRUST COMPANY,

as Delaware Trustee




And




THE ADMINISTRATIVE TRUSTEES NAMED HEREIN




Dated as of December 29, 2005




USB CAPITAL VIII




 





 









 





CROSS REFERENCE TABLE1




	 	 	 	 	 
	Section of Trust	 	 	 
	Indenture Act of	 	Section of	 
	1939, as amended	 	Agreement	 
	310(a)
	 	 	6.3	 
	310(b)
	 	 	6.3(c); 6.3(d)	 
	310(c)
	 	Inapplicable	 
	311(a)
	 	 	2.2(b)	 
	311(b)
	 	 	2.2(b)	 
	311(c)
	 	Inapplicable	 
	312(a)
	 	 	2.2(a)	 
	312(b)
	 	 	2.2(b)	 
	312(c)
	 	Inapplicable	 
	313(a)
	 	 	2.3	 
	313(b)
	 	 	2.3	 
	313(c)
	 	 	2.3	 
	313(d)
	 	 	2.3	 
	314(a)
	 	 	2.4	 
	314(b)
	 	Inapplicable	 
	314(c)
	 	 	2.5	 
	314(d)
	 	Inapplicable	 
	314(e)
	 	 	2.5	 
	314(f)
	 	Inapplicable	 
	315(a)
	 	 	3.9(b); 3.10(a)	 
	315(b)
	 	 	2.7(a)	 
	315(c)
	 	 	3.9(a)	 
	315(d)
	 	 	3.9(b)	 
	316(a)
	 	 	2.6; 7.5(b); 7.6(c)	 
	316(b)
	 	Inapplicable	 
	316(c)
	 	Inapplicable	 
	317(a)
	 	 	3.16	 
	317(b)
	 	Inapplicable	 
	318(a)
	 	 	2.1(c)	 








 




			
	1	 	This Cross-Reference Table does not constitute
part of the Agreement and shall not have any bearing upon the interpretation of
any of its terms or provisions.




 









 










TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE 1 INTERPRETATION AND DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.1. Interpretation and Definitions
	 	 	1	 
	Administrative Trustee
	 	 	2	 
	Affiliate 
	 	 	2	 
	Authorized Officer
	 	 	2	 
	Beneficial Owners
	 	 	2	 
	Business Day
	 	 	2	 
	Capital Security
	 	 	2	 
	Capital Security Certificate
	 	 	2	 
	Certificate 
	 	 	3	 
	Certificate of Trust
	 	 	3	 
	Closing Date
	 	 	3	 
	Code
	 	 	3	 
	Commission
	 	 	3	 
	Common Securities Holder
	 	 	3	 
	Common Security
	 	 	3	 
	Common Security Certificate
	 	 	3	 
	Corporate Trust Office
	 	 	3	 
	Covered Person
	 	 	3	 
	Delaware Statutory Trust Act
	 	 	3	 
	Delaware Trustee
	 	 	3	 
	Depositary
	 	 	3	 
	Depositary Participant
	 	 	3	 
	Direct Action
	 	 	3	 
	Distribution
	 	 	4	 
	Exchange Act
	 	 	4	 
	Federal Reserve
	 	 	4	 
	Fiduciary Indemnified Person
	 	 	4	 
	Fiscal Year 
	 	 	4	 
	Global Security
	 	 	4	 
	Guarantee 
	 	 	4	 
	Holder
	 	 	4	 
	ICON Issuer 
	 	 	4	 
	ICON Issuer Indemnified Person
	 	 	4	 
	ICON Trustee
	 	 	4	 
	ICONs
	 	 	4	 
	Indemnified Person
	 	 	4	 
	Indenture 
	 	 	4	 
	Indenture Event of Default
	 	 	4	 
	Investment Company
	 	 	5	 
	Investment Company Act
	 	 	5	 
	Investment Company Event
	 	 	5	 






 









 






	 	 	 	 	 
	 	 	Page	 
	Legal Action
	 	 	5	 
	List of Holders
	 	 	5	 
	Majority in Liquidation Amount
	 	 	5	 
	Market Disruption Event
	 	 	5	 
	New York Stock Exchange
	 	 	5	 
	Officers’ Certificate
	 	 	5	 
	Paying Agent
	 	 	6	 
	Payment Amount
	 	 	6	 
	Person
	 	 	6	 
	Property Account
	 	 	6	 
	Property Trustee .
	 	 	6	 
	Pro Rata
	 	 	6	 
	Quorum
	 	 	6	 
	Redemption/Distribution Notice
	 	 	6	 
	Redemption Price
	 	 	6	 
	Regulatory Capital Event
	 	 	6	 
	Related Party
	 	 	7	 
	Responsible Officer
	 	 	7	 
	Securities
	 	 	7	 
	Securities Act
	 	 	7	 
	Special Event
	 	 	7	 
	Sponsor
	 	 	7	 
	Successor Delaware Trustee
	 	 	7	 
	Successor Entity
	 	 	7	 
	Successor Property Trustee
	 	 	7	 
	Successor Security
	 	 	7	 
	Super Majority
	 	 	7	 
	Tax Event 
	 	 	7	 
	10% in Liquidation Amount
	 	 	8	 
	Treasury Regulations
	 	 	8	 
	Trust
	 	 	8	 
	Trust Enforcement Event
	 	 	8	 
	Trust Indenture Act
	 	 	8	 
	Trustee\ or \Trustees
	 	 	8	 






	 	 	 	 	 	 	 
	ARTICLE 2 TRUST INDENTURE ACT	 	 	8	 
	 
	 	 	 	 	 	 
	SECTION 2.1.
	 	Trust Indenture Act; Application	 	 	8	 
	SECTION 2.2.
	 	Lists of Holders of Securities	 	 	9	 
	SECTION 2.3.
	 	Reports by the Property Trustee	 	 	9	 
	SECTION 2.4.
	 	Periodic Reports to the Property Trustee	 	 	9	 
	SECTION 2.5.
	 	Evidence of Compliance with Conditions Precedent	 	 	9	 
	SECTION 2.6.
	 	Trust Enforcement Events; Waiver	 	 	10	 
	SECTION 2.7.
	 	Trust Enforcement Event; Notice	 	 	11	 
	 
	 	 	 	 	 	 
	ARTICLE 3 ORGANIZATION	 	 	12	 






ii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 3.1.
	 	Name and Organization	 	 	12	 
	SECTION 3.2.
	 	Office	 	 	12	 
	SECTION 3.3.
	 	Purpose	 	 	12	 
	SECTION 3.4.
	 	Authority	 	 	12	 
	SECTION 3.5.
	 	Title to Property of the Trust	 	 	13	 
	SECTION 3.6.
	 	Powers and Duties of the Administrative Trustees	 	 	13	 
	SECTION 3.7.
	 	Prohibition of Actions by the Trust and the Trustees	 	 	15	 
	SECTION 3.8.
	 	Powers and Duties of the Property Trustee	 	 	16	 
	SECTION 3.9.
	 	Certain Duties and Responsibilities of the Property Trustee	 	 	18	 
	SECTION 3.10.
	 	Certain Rights of Property Trustee	 	 	20	 
	SECTION 3.11.
	 	Delaware Trustee	 	 	22	 
	SECTION 3.12.
	 	Execution of Documents	 	 	23	 
	SECTION 3.13.
	 	Not Responsible for Recitals or Issuance of Securities	 	 	23	 
	SECTION 3.14.
	 	Duration of Trust	 	 	23	 
	SECTION 3.15.
	 	Mergers	 	 	23	 
	SECTION 3.16.
	 	Property Trustee May File Proofs of Claim	 	 	25	 
	 
	 	 	 	 	 	 
	ARTICLE 4 SPONSOR	 	 	26	 
	 
	 	 	 	 	 	 
	SECTION 4.1.
	 	Responsibilities of the Sponsor	 	 	26	 
	SECTION 4.2.
	 	Indemnification and Fees and Expenses of the Trustees	 	 	26	 
	SECTION 4.3.
	 	Compensation of the Trustees	 	 	26	 
	 
	 	 	 	 	 	 
	ARTICLE 5 TRUST COMMON SECURITIES HOLDER	 	 	27	 
	 
	 	 	 	 	 	 
	SECTION 5.1.
	 	ICON Issuer’s Receipt of Common Securities	 	 	27	 
	SECTION 5.2.
	 	Covenants of the Common Securities Holder	 	 	27	 
	 
	 	 	 	 	 	 
	ARTICLE 6 TRUSTEES	 	 	27	 
	 
	 	 	 	 	 	 
	SECTION 6.1.
	 	Number of Trustees	 	 	27	 
	SECTION 6.2.
	 	Delaware Trustee; Eligibility	 	 	28	 
	SECTION 6.3.
	 	Property Trustee; Eligibility	 	 	28	 
	SECTION 6.4.
	 	Qualifications of Administrative Trustees and Delaware Trustee Generally	 	 	29	 
	SECTION 6.5.
	 	Initial Administrative Trustees	 	 	29	 
	SECTION 6.6.
	 	Appointment, Removal and Resignation of Trustees	 	 	29	 
	SECTION 6.7.
	 	Vacancies among Trustees	 	 	31	 
	SECTION 6.8.
	 	Effect of Vacancies	 	 	31	 
	SECTION 6.9.
	 	Meetings	 	 	31	 
	SECTION 6.10.
	 	Delegation of Power	 	 	31	 
	SECTION 6.11.
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	32	 
	 
	 	 	 	 	 	 
	ARTICLE 7 TERMS OF SECURITIES	 	 	32	 
	 
	 	 	 	 	 	 
	SECTION 7.1.
	 	General Provisions Regarding Securities	 	 	32	 
	SECTION 7.2.
	 	Distributions	 	 	34	 
	SECTION 7.3.
	 	Redemption of Securities	 	 	35	 






iii









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 7.4.
	 	Redemption Procedures	 	 	36	 
	SECTION 7.5.
	 	Voting Rights of Capital Securities	 	 	37	 
	SECTION 7.6.
	 	Voting Rights of Common Securities	 	 	39	 
	SECTION 7.7.
	 	Paying Agent	 	 	41	 
	SECTION 7.8.
	 	Listing	 	 	41	 
	SECTION 7.9.
	 	Transfer of Securities	 	 	41	 
	SECTION 7.10.
	 	Mutilated, Destroyed, Lost or Stolen Certificates	 	 	42	 
	SECTION 7.11.
	 	Deemed Security Holders	 	 	43	 
	SECTION 7.12.
	 	Global Securities	 	 	43	 
	 
	 	 	 	 	 	 
	ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST	 	 	45	 
	 
	 	 	 	 	 	 
	SECTION 8.1.
	 	Dissolution and Termination of Trust	 	 	45	 
	SECTION 8.2.
	 	Liquidation Distribution Upon Dissolution of the Trust	 	 	46	 
	 
	 	 	 	 	 	 
	ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES OR OTHERS	 	 	47	 
	 
	 	 	 	 	 	 
	SECTION 9.1.
	 	Liability	 	 	47	 
	SECTION 9.2.
	 	Exculpation	 	 	47	 
	SECTION 9.3.
	 	Fiduciary Duty	 	 	48	 
	SECTION 9.4.
	 	Indemnification	 	 	49	 
	SECTION 9.5.
	 	Outside Businesses	 	 	51	 
	 
	 	 	 	 	 	 
	ARTICLE 10 ACCOUNTING	 	 	51	 
	 
	 	 	 	 	 	 
	SECTION 10.1.
	 	Fiscal Year	 	 	51	 
	SECTION 10.2.
	 	Certain Accounting Matters	 	 	51	 
	SECTION 10.3.
	 	Banking	 	 	52	 
	SECTION 10.4.
	 	Withholding	 	 	52	 
	 
	 	 	 	 	 	 
	ARTICLE 11 AMENDMENTS AND MEETINGS	 	 	53	 
	 
	 	 	 	 	 	 
	SECTION 11.1.
	 	Amendments	 	 	53	 
	SECTION 11.2.
	 	Meetings of the Holders of Securities; Action by Written Consent	 	 	55	 
	 
	 	 	 	 	 	 
	ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE	 	 	56	 
	 
	 	 	 	 	 	 
	SECTION 12.1.
	 	Representations and Warranties of the Property Trustee	 	 	56	 
	SECTION 12.2.
	 	Representations and Warranties of the Delaware Trustee	 	 	57	 
	 
	 	 	 	 	 	 
	ARTICLE 13 MISCELLANEOUS	 	 	58	 
	 
	 	 	 	 	 	 
	SECTION 13.1.
	 	Notices	 	 	58	 
	SECTION 13.2.
	 	Governing Law	 	 	59	 
	SECTION 13.3.
	 	Intention of the Parties	 	 	59	 
	SECTION 13.4.
	 	Headings	 	 	59	 






iv









 






	 	 	 	 	 	 	 
	 	 	 	 	Page	 
	SECTION 13.5.
	 	Successors and Assigns	 	 	59	 
	SECTION 13.6.
	 	Partial Enforceability	 	 	59	 
	SECTION 13.7.
	 	Counterparts	 	 	59	 






EXHIBITS




	 	 	 
	Exhibit A

	 	Form of Capital Security Certificate
	Exhibit B

	 	Form of Common Security Certificate






v









 






SECOND AMENDED AND RESTATED TRUST AGREEMENT




          This SECOND AMENDED AND RESTATED TRUST AGREEMENT (this “Trust Agreement”), dated as of
December 29, 2005 is entered into by and among (i) U.S. BANCORP, a Delaware corporation (the
“Sponsor”), (ii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as property trustee (in
each such capacity, the “Property Trustee”), (iii) WILMINGTON TRUST COMPANY, as Delaware trustee
(the “Delaware Trustee”), (iv) DAVID M. MOFFETT, an individual, DARYL N. BIBLE, an individual, and
LEE R. MITAU, an individual, each of whose address is c/o U.S. Bancorp, 800 Nicollet Mall,
Minneapolis, Minnesota 55402 (each an “Administrative Trustee” and collectively the “Administrative
Trustees”) (the Property Trustee, the Delaware Trustee and the Administrative Trustees referred to
collectively as the “Trustees”) and (v) the several Holders, as hereinafter defined.




RECITALS




          WHEREAS, the Trustees and the Sponsor established USB Capital VIII (the “Trust”), a statutory
trust under the Delaware Statutory Trust Act (as defined, together with other capitalized terms,
herein) pursuant to a Trust Agreement dated as of April 27, 2005, as amended and restated by the
First Amended and Restated Trust Agreement dated as of December 23, 2005 (the “First Amended and
Restated Trust Agreement”), and a Certificate of Trust (the “Certificate of Trust”) filed with the
Secretary of State of the State of Delaware on April 27, 2005, as amended by a Restated Certificate
of Trust filed with the Secretary of the State of Delaware on December 23, 2005;




          WHEREAS, the sole purpose of the Trust shall be to issue and sell certain securities
representing undivided beneficial interests in the assets of the Trust and invest the gross
proceeds thereof in the ICONs issued by the ICON Issuer and to engage in only those activities
necessary or incidental thereto; and




          WHEREAS, the parties hereto, by this Trust Agreement, amend and restate each and every term
and provision of the First Amended and Restated Trust Agreement;




          NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a
statutory trust under the Delaware Statutory Trust Act and that this Trust Agreement constitute the
governing instrument of such statutory trust, the Trustees hereby declare that all assets
contributed to the Trust be held in trust for the benefit of the Holders of the Securities
representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to
the provisions of this Trust Agreement.




ARTICLE 1




INTERPRETATION AND DEFINITIONS




     SECTION 1.1. Interpretation and Definitions.



          Unless the context otherwise requires:




 









 









     (a) capitalized terms used in this Trust Agreement but not defined in the preamble
above have the meanings assigned to them in this Section 1.1;




     (b) a term defined anywhere in this Trust Agreement has the same meaning throughout;




     (c) all references to “the Trust Agreement” or “this Trust Agreement” are to this Trust
Agreement as modified, supplemented or amended from time to time;




     (d) all references in this Trust Agreement to Articles, Sections, Recitals and Exhibits
are to Articles and Sections of, or Recitals and Exhibits to, this Trust Agreement unless
otherwise specified;




     (e) unless otherwise defined in this Trust Agreement, a term defined in the Trust
Indenture Act has the same meaning when used in this Trust Agreement;




     (f) a reference to the singular includes the plural and vice versa and a reference to
any masculine form of a term shall include the feminine form of a term, as applicable; and




     (g) the following terms have the following meanings:



          “Administrative Trustee” means any Trustee other than the Property Trustee and the Delaware
Trustee.




          “Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act or
any successor rule thereunder.




          “Authorized Officer” of a Person means any Person that is authorized to bind such Person.




          “Beneficial Owners” means, for Capital Securities represented by a Global Security, the Person
who acquires an interest in the Capital Securities which is reflected on the records of the
Depositary through the Depositary Participants.




          “Business Day” means any day other than (i) a Saturday or Sunday, (ii) a day on which banking
institutions in the Borough of Manhattan, 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 ICON
Trustee, or, with respect to the Securities of a series initially issued to a Trust, the principal
office of the Property Trustee under the related Trust Agreement, is closed for business.




          “Capital Security” has the meaning specified in Section 7.1.




          “Capital Security Certificate” means a definitive certificate in fully registered form
representing a Capital Security, substantially in the form of Exhibit A.





2









 








          “Certificate” means a Common Security Certificate or a Capital Security Certificate.




          “Certificate of Trust” has the meaning specified in the Recitals hereto.




          “Closing Date” means the date on which the Capital Securities are issued and sold.




          “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor
legislation. A reference to a specific section of the Code refers not only to such specific
section but also to any corresponding provision of any federal tax statute enacted after the date
of this Trust Agreement, as such specific section or corresponding provision is in effect on the
date of application of the provisions of this Trust Agreement containing such reference.




          “Commission” means the Securities and Exchange Commission or any successor thereto.




          “Common Securities Holder” means U.S. Bancorp, or any successor thereto, in its capacity as
purchaser and holder of all of the Common Securities issued by the Trust.




          “Common Security” has the meaning specified in Section 7.1.




          “Common Security Certificate” means a definitive certificate in fully registered form
representing a Common Security, substantially in the form of Exhibit B hereto.




          “Corporate Trust Office” means the principal office of the Property Trustee at which at any
particular time its corporate trust business shall be administered, which office at the date of
execution of this Trust Agreement is located at 1100 North Market Street, Wilmington, Delaware
19890.




          “Covered Person” means (a) any officer, director, shareholder, partner, member,
representative, employee or agent of (i) the Trust or (ii) the Trust’s Affiliates; and (b) any
Holder.




          “Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
Section 3801 et seq., as it may be amended from time to time, or any successor legislation.




          “Delaware Trustee” means the Trustee meeting the eligibility requirements set forth in Section
6.2.




          “Depositary” means, with respect to Securities issuable in whole or in part in the form of one
or more Global Securities, a clearing agency registered under the Exchange Act that is designated
to act as Depositary for such Securities.




          “Depositary Participant” means a member of, or participant in, the Depositary.




          “Direct Action” has the meaning specified in Section 3.8(e).





3









 








          “Distribution” means a distribution payable to Holders of Securities in accordance with
Section 7.2.




          “Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any
successor legislation.




          “Federal Reserve” means the Board of Governors of the Federal Reserve System, or any successor
thereto.




          “Fiduciary Indemnified Person” has the meaning set forth in Section 9.4(b).




          “Fiscal Year” has the meaning specified in Section 10.1.




          “Global Security” means a fully registered, global Capital Security Certificate.




          “Guarantee” means the Guarantee Agreement, dated the date hereof, of the Sponsor in respect of
the Securities.




          “Holder” means any holder of Securities, as registered on the books and records of the Trust.




          “ICON Issuer” means U.S. Bancorp, or any successor thereto under the Indenture, in its
capacity as issuer of the ICONs under the Indenture.




          “ICON Issuer Indemnified Person” means (a) any Administrative Trustee; (b) any Affiliate of
any Administrative Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Administrative Trustee or any Affiliate thereof; or (d)
any officer, employee or agent of the Trust or its Affiliates.




          “ICON Trustee” means Wilmington Trust Company, in its capacity as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means such successor trustee.




          “ICONs” means the series of 6.35% Income Capital Obligation Notes due 2065 to be issued by the
ICON Issuer under the Indenture and held by the Property Trustee.




          “Indemnified Person” means an ICON Issuer Indemnified Person or a Fiduciary Indemnified
Person.




          “Indenture” means the Junior Subordinated Indenture, dated as of April 28, 2005, as
supplemented by that First Supplemental Indenture dated as of August 3, 2005, between the ICON
Issuer and Delaware Trust Company, National Association, and further supplemented by the Second
Supplemental Indenture dated as of December 29, 2005 between the ICON Issuer, Delaware Trust
Company, National Association, as original trustee, and Wilmington Trust Company, as successor
trustee, pursuant to which the ICONs are to be issued.




          “Indenture Event of Default” has the meaning given to the term “Event of Default” in the
Indenture.




4









 








          “Investment Company” means an investment company as defined in the Investment Company Act and
the regulations promulgated thereunder.




          “Investment Company Act” means the Investment Company Act of 1940, as amended from time to
time, or any successor legislation.




          “Investment Company Event” means the receipt by the Sponsor and the Trust of an opinion of an
independent counsel experienced in matters relating to investment companies (which opinion shall
not have been rescinded), to the effect that, as a result of the occurrence of a change (including
any announced proposed 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 (a
“Change in 1940 Act Law”), there is more than an insubstantial risk that the Trust is or will be
considered an “investment company” that is required to be registered under the Investment Company
Act, which Change in 1940 Act Law becomes effective on or after the Closing Date.




          “Legal Action” has the meaning specified in Section 3.6(g).




          “List of Holders” has the meaning specified in Section 2.2(a).




          “Majority in Liquidation Amount” means, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities, voting together as a
single class, or, as the context may
require, Holders of outstanding Capital Securities or Holders of outstanding Common
Securities, voting separately as a class, who are the record owners of more than 50% of the
aggregate liquidation amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant class.




          “Market Disruption Event “has the meaning specified in the Indenture.




          “New York Stock Exchange” means the New York Stock Exchange, Inc. or any successor thereto.




          “Officers’ Certificate” means, with respect to any Person, a certificate signed on behalf of
such Person by two Authorized Officers of such Person. Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust Agreement shall
include:





     (i) a statement that each officer signing the Officers’ Certificate has read
the covenant or condition and the definitions relating thereto;




     (ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering the
Officers’ Certificate;




     (iii) a statement that each such officer has made such examination or
investigation as, in such officer’s opinion, is necessary to enable such officer on



5









 






behalf of such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and




     (iv) a statement as to whether, in the opinion of each such officer acting on
behalf of such Person, such condition or covenant has been complied with; provided,
that the term “Officers’ Certificate”, when used with reference to Administrative
Trustees who are natural persons shall mean a certificate signed by two or more of
the Administrative Trustees which otherwise satisfies the foregoing requirements.



          “Paying Agent” has the meaning specified in Section 3.8(h).




          “Payment Amount” has the meaning specified in Section 7.2(c).




          “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision thereof, or any other entity of
whatever nature.




          “Property Account” has the meaning specified in Section 3.8(c).




          “Property Trustee” means the Trustee meeting the eligibility requirements set forth in Section
6.3.




          “Pro Rata” means pro rata to each Holder of Securities according to the aggregate liquidation
amount of the Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding.




          “Quorum” means a majority of the Administrative Trustees or, if there are only two
Administrative Trustees, both of them.




          “Redemption/Distribution Notice” has the meaning specified in Section 7.4(a).




          “Redemption Price” means the amount for which the Securities will be redeemed, which amount
will equal (i) the redemption price paid by the ICON Issuer to repay or redeem, in whole or in
part, the ICONs held by the Trust which shall include accumulated and unpaid Distributions on such
Securities through the date of their redemption or (ii) such lesser amount as will be received by
the Trust in respect of the ICONs so repaid or redeemed.




          “Regulatory Capital Event” means the reasonable determination by the Sponsor that, as a result
of (a) any amendment to, or change (including any announced prospective change) in, the laws or any
applicable regulation of the United States or any political subdivision; or (b) any official or
administrative pronouncement or action or judicial decision for interpreting or applying such laws
or regulations, which amendment or change is effective or such pronouncement or decision is
announced on or after the date of original issuance of the Capital Securities, there is more than
an insubstantial risk of impairment of the Sponsor’s ability to treat the Capital Securities (or
any substantial portion thereof) as Tier 1 capital (or its then





6









 







equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve in effect and applicable to the Sponsor.




          “Related Party” means, with respect to the Sponsor, any direct or wholly owned subsidiary of
the Sponsor or any Person that owns, directly or indirectly, 100% of the outstanding voting
securities of the Sponsor.




          “Responsible Officer” means, with respect to the Property Trustee, any officer with direct
responsibility for the administration of this Trust Agreement and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of
that officer’s knowledge of and familiarity with the particular subject.




          “Securities” means the Common Securities and the Capital Securities.




          “Securities Act” means the Securities Act of 1933, as amended from time to time, or any
successor legislation.




          “Special Event” means a Tax Event, a Regulatory Capital Event or an Investment Company Event.




          “Sponsor” means U.S. Bancorp, a Delaware corporation, or any successor entity in a merger,
consolidation, amalgamation or replacement by or conveyance, transfer or lease of its properties
substantially as an entirety, in its capacity as sponsor of the Trust.




          “Successor Delaware Trustee” has the meaning specified in Section 6.6(b).




          “Successor Entity” has the meaning specified in Section 3.15(b)(i).




          “Successor Property Trustee” has the meaning specified in Section 6.6(b).




          “Successor Security” has the meaning specified in Section 3.15(b)(i)b.




          “Super Majority” has the meaning specified in Section 2.6(a)(ii).




          “Tax Event” means the receipt by the Sponsor or the Trust of an opinion of tax counsel (which
may be the Sponsor’s counsel or counsel of an Affiliate but not an employee and which must be
reasonably acceptable to the Property Trustee) experienced in such matters (which opinions shall
not have been rescinded), to the effect that, as a result of (a) 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 (b) any
court, governmental agency or regulatory authority interpreting or applying such laws or
regulations, 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 ICONs, (ii) interest payable by the ICON Issuer on the ICONs is
not, or within 90 days of the date of such opinion will not be, deductible, in whole or in part, by
the ICON Issuer for United States federal income tax purposes, or (iii) the Trust is, or will be
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.





7









 








          “10% in Liquidation Amount” means, except as provided in the terms of the Capital Securities
or by the Trust Indenture Act, Holder(s) of outstanding Securities, voting together as a single
class, or, as the context may require, Holders of outstanding Capital Securities or Holders of
outstanding Common Securities, voting separately as a class, who are the record owners of 10% or
more of the aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or
otherwise, plus accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant class.




          “Treasury Regulations” means the income tax regulations, including temporary and proposed
regulations, promulgated under the Code by the United States Treasury, as such regulations may be
amended from time to time (including corresponding provisions of succeeding regulations).




          “Trust” has the meaning specified in the Recitals.




          “Trust Enforcement Event” in respect of the Securities means an Indenture Event of Default has
occurred and is continuing in respect of the ICONs.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended from time to time, or
any successor legislation.




          “Trustee” or “Trustees” means each Person who has signed this Trust Agreement as a trustee, so
long as such Person shall continue as a trustee in accordance with the terms hereof, and all other
Persons who may from time to time be duly appointed, qualified and serving as Trustees in
accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.




ARTICLE 2




TRUST INDENTURE ACT




     SECTION 2.1. Trust Indenture Act; Application.



          (a) This Trust Agreement is subject to the provisions of the Trust Indenture Act that are
required to be part of this Trust Agreement and shall, to the extent applicable, be governed by
such provisions.




          (b) The Property Trustee shall be the only Trustee which is a Trustee for the purposes of the
Trust Indenture Act.




          (c) If and to the extent that any provision of this Trust Agreement conflicts with the duties
imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.




          (d) The application of the Trust Indenture Act to this Trust Agreement shall not affect the
Trust’s classification as a grantor trust for United States federal income tax purposes.




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     SECTION 2.2. Lists of Holders of Securities.



          (a) Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide
the Property Trustee (i), except while the Capital Securities are represented by one or more Global
Securities, at least five Business Days prior to the date for payment of Distributions, a list, in
such form as the Property Trustee may reasonably require, of the names and addresses of the Holders
of the Securities (“List of Holders”) as of the record date relating to the payment of such
Distributions, and (ii) at any other time, within 30 days of receipt by the Trust of a written
request from the Property Trustee for a List of Holders, as of a date no more than 15 days before
such List of Holders is given to the Property Trustee; provided that neither the Sponsor nor the
Administrative Trustees on behalf of the Trust shall be obligated to provide such List of Holders
at any time the List of Holders does not differ from the most recent List of Holders given to the
Property Trustee by the Sponsor and the Administrative Trustees on behalf of the Trust. The
Property Trustee shall preserve, in as current a form as is reasonably practicable, all information
contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent (if
acting in such capacity), provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.




          (b) The Property Trustee shall comply with its obligations under, and shall be entitled to the
benefits of, Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.




     SECTION 2.3. Reports by the Property Trustee.



          Within 60 days after May 15 of each year (commencing with the year of the first anniversary of
the issuance of the Capital Securities), the Property Trustee shall provide to the Holders of the
Capital Securities such reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust Indenture Act. The Property
Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act.




     SECTION 2.4. Periodic Reports to the Property Trustee.



          Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to
the Property Trustee such documents, reports and information as required by Section 314 of the
Trust Indenture Act (if any) and the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act, but in no event later than 120 days after the end of each calendar year.




     SECTION 2.5. Evidence of Compliance with Conditions Precedent.



          Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to
the Property Trustee such evidence of compliance with any conditions precedent, if any, provided
for in this Trust Agreement that relate to any of the matters set forth in Section 314(c) of the
Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers’ Certificate.




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     SECTION 2.6. Trust Enforcement Events; Waiver.



          (a) The Holders of a Majority in Liquidation Amount of the Capital Securities may, by vote or
written consent, on behalf of the Holders of all of the Capital Securities, waive any past Trust
Enforcement Event in respect of the Capital Securities and its consequences, provided that, if the
underlying Indenture Event of Default:





     (i) is not waivable under the Indenture, the Trust Enforcement Event under the
Trust Agreement shall also not be waivable; or




     (ii) requires the consent or vote of the Holders of greater than a majority in
principal amount of the ICONs (a “Super Majority”) to be waived under the Indenture,
the related Trust Enforcement Event under the Trust Agreement may only be waived by
the vote or written consent of the Holders of at least the proportion in liquidation
amount of the Capital Securities that the relevant Super Majority represents of the
aggregate principal amount of the ICONs outstanding.



          The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Trust Agreement and the Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist, and any Trust Enforcement
Event with respect to the Capital Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Trust Agreement and the Capital Securities, but no such waiver shall
extend to any subsequent or other Trust Enforcement Event with respect to the Capital Securities or
impair any right consequent thereon. Any waiver by the Holders of the Capital Securities of a
Trust Enforcement Event with respect to the Capital Securities shall also be deemed to constitute a
waiver by the Holders of the Common Securities of any such Trust Enforcement Event with respect to
the Common Securities for all purposes of this Trust Agreement without any further act, vote, or
consent of the Holders of the Common Securities.




          (b) The Holders of a Majority in Liquidation Amount of the Common Securities may, by vote or
written consent, on behalf of the Holders of all of the Common Securities, waive any past Trust
Enforcement Event in respect of the Common Securities and its consequences, provided that, if the
underlying Indenture Event of Default:





     (i) is not waivable under the Indenture, except where the Holders of the Common
Securities are deemed to have waived such Trust Enforcement Event under the Trust
Agreement as provided below in this Section 2.6(b), the Trust Enforcement Event
under the Trust Agreement shall also not be waivable; or




     (ii) requires the consent or vote of a Super Majority to be waived under the
Indenture, except where the Holders of the Common Securities are deemed to have
waived such Trust Enforcement Event under the Trust Agreement as provided below in
this Section 2.6(b), the Trust Enforcement Event under the Trust Agreement may only
be waived by the vote or written consent of the Holders of at least the proportion
in liquidation amount of the Common Securities



10









 






that the relevant Super Majority represents of the aggregate principal amount
of the ICONs outstanding;


provided further, each Holder of Common Securities will be deemed to have waived any Trust
Enforcement Event and all Trust Enforcement Events with respect to the Common Securities and the
consequences thereof until all Trust Enforcement Events with respect to the Capital Securities have
been cured, waived or otherwise eliminated, and until such Trust Enforcement Events with respect to
the Capital Securities have been so cured, waived or otherwise eliminated, the Property Trustee
will be deemed to be acting solely on behalf of the Holders of the Capital Securities and only the
Holders of the Capital Securities will have the right to direct the Property Trustee in accordance
with the terms of the Securities. The foregoing provisions of this Section 2.6(b) shall be in lieu
of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A)
and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Trust Agreement
and the Securities, as permitted by the Trust Indenture Act. Subject to the foregoing provisions
of this Section 2.6(b), upon such cure, waiver or other elimination, any such default shall cease
to exist and any Trust Enforcement Event with respect to the Common Securities arising therefrom
shall be deemed to have been cured for every purpose of this Trust Agreement, but no such waiver
shall extend to any subsequent or other Trust Enforcement Event with respect to the Common
Securities or impair any right consequent thereon.




          (c) A waiver of an Indenture Event of Default by the Property Trustee at the direction of the
Holders of the Capital Securities constitutes a waiver of the corresponding Trust Enforcement Event
with respect to the Capital Securities under this Trust Agreement. The foregoing provisions of
this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such
Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Trust
Agreement and the Securities, as permitted by the Trust Indenture Act.




     SECTION 2.7. Trust Enforcement Event; Notice.



          (a) The Property Trustee shall, within 90 days after the occurrence of a Trust Enforcement
Event actually known to a Responsible Officer of the Property Trustee, transmit by mail, first
class postage prepaid, to the Holders of the Securities, notices of all such defaults with respect
to the Securities, unless such defaults have been cured before the giving of such notice (the term
“defaults” for the purposes of this Section 2.7(a) being hereby defined to be an Indenture Event of
Default, not including any periods of grace provided for therein and irrespective of the giving of
any notice provided therein); provided that, except for a default in the payment of principal of
(or premium, if any) or interest on any of the ICONs, the Property Trustee shall be protected fully
in withholding such notice if and so long as a Responsible Officer of the Property Trustee in good
faith determines that the withholding of such notice is in the interests of the Holders of the
Securities.




          (b) The Property Trustee shall not be deemed to have knowledge of any default except:





     (i) a default under Sections 5.1(1) and 5.1(2) of the Indenture; or



11









 






     (ii) any default as to which the Property Trustee shall have received written
notice or of which a Responsible Officer of the Property Trustee charged with the
administration of this Trust Agreement shall have actual knowledge.



ARTICLE 3




ORGANIZATION




          SECTION 3.1. Name and Organization.



          The Trust hereby continued is named “USB Capital VIII” as such name may be modified from time
to time by the Administrative Trustees following written notice to the Holders of Securities, the
Property Trustee and the Delaware Trustee. The Trust’s activities may be conducted under the name
of the Trust or any other name deemed advisable by the Administrative Trustees.




          SECTION 3.2. Office.



          The address of the principal office of the Trust is c/o U.S. Bancorp, 800 Nicollet Mall,
Minneapolis, Minnesota 55402. On 10 Business Days’ written notice to the Holders of Securities,
each of the Property Trustee, the Delaware Trustee and the Administrative Trustees may designate
another principal office.




          SECTION 3.3. Purpose.



          The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and
invest the gross proceeds thereof in the ICONs, and (b) except as otherwise limited herein, to
engage in only those other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of its assets or
otherwise undertake (or permit to be undertaken) any activity that would cause the Trust to be
classified as other than a grantor trust for United States federal income tax purposes.




          By the acceptance of this Trust, the Trustees, the Sponsor, the Holders of the Capital
Securities and Common Securities and the Capital Securities Beneficial Owners will agree to treat
the Trust as a grantor trust for United States federal income tax purposes and not to take any
position which is contrary to such classification.




          SECTION 3.4. Authority.



          Subject to the limitations provided in this Trust Agreement and to the specific duties of the
Property Trustee, the Administrative Trustees shall have exclusive authority to carry out the
purposes of the Trust. An action taken by the Administrative Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action taken by the Property
Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve
to bind the Trust. In dealing with the Trustees acting on behalf of the Trust, no Person shall be
required to inquire into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in
this Trust Agreement.




12









 








          (a) Except as expressly set forth in this Trust Agreement and except if a meeting of the
Administrative Trustees is called with respect to any matter over which the Administrative Trustees
have power to act, any power of the Administrative Trustees may be exercised by, or with the
consent of, any one such Administrative Trustee.




          (b) Except as otherwise required by the Delaware Statutory Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any documents which the
Administrative Trustees have the power and authority to cause the Trust to execute pursuant to
Section 3.6(b).




          (c) An Administrative Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for the purposes of
signing any documents which the Administrative Trustees have power and authority to cause the Trust
to execute pursuant to Section 3.6; provided that such person is a United States Person as defined
in Section 7701(a)(30) of the Code.




     SECTION 3.5. Title to Property of the Trust.



     Except as provided in Section 3.8 with respect to the ICONs and the Property Account or as
otherwise provided in this Trust Agreement, legal title to all assets of the Trust shall be vested
in the Trust. The Holders shall not have legal title to any part of the assets of the Trust, but
shall have an undivided beneficial ownership interest in the assets of the Trust.




     SECTION 3.6. Powers and Duties of the Administrative Trustees.



     The Administrative Trustees shall have the exclusive power, duty and authority, and are hereby
authorized and directed, to cause the Trust to engage in the following activities:



          (a) to establish the terms and form of the Capital Securities and the Common Securities in the
manner specified in Section 7.1 and issue and sell the Capital Securities and the Common Securities
in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than
one series of Capital Securities and no more than one series of Common Securities, and, provided
further, that there shall be no interests in the Trust other than the Securities, and the issuance
of Securities shall be limited to a simultaneous issuance of both Capital Securities and Common
Securities on the Closing Date;




          (b) in connection with the issuance of the Capital Securities, at the direction of the
Sponsor, to execute and file any documents prepared by the Sponsor, or take any acts as determined
by the Sponsor to be necessary, in order to qualify or register all or part of the Capital
Securities in any State in which the Sponsor has determined to qualify or register such Capital
Securities for sale;




          (c) to purchase the ICONs with the gross proceeds from the issuance and sale of the Capital
Securities and in exchange for the Common Securities; provided, however, that the Administrative
Trustees shall cause legal title to the ICONs to be held of record in the name of the Property
Trustee for the benefit of the Holders of the Capital Securities and the Holders of the Common
Securities;




13









 








          (d) to give the Sponsor and the Property Trustee prompt written notice of the occurrence of a
Special Event; provided that the Administrative Trustees shall consult with the Sponsor and the
Property Trustee before taking or refraining from taking any action in relation to any such Special
Event;




          (e) to establish a record date with respect to all actions to be taken hereunder that require
a record date be established, including and with respect to, for the purposes of Section 316(c) of
the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue
relevant notices to the Holders of Capital Securities and Holders of Common Securities as to such
actions and applicable record dates;




          (f) to take all actions and perform such duties as may be required of the Administrative
Trustees pursuant to the terms of this Trust Agreement and the Securities;




          (g) to bring or defend, pay, collect, compromise, arbitrate, resort to legal action or
otherwise adjust claims or demands of or against the Trust (“Legal Action”), unless, pursuant to
Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal Action;




          (h) to employ or otherwise engage employees and agents (who may be designated as officers with
titles) and managers, contractors, advisors and consultants to conduct only those services that the
Administrative Trustees have authority to conduct directly, and to pay reasonable compensation for
such services, provided that such person is a United States Person as defined in Section
7701(a)(30) of the Code;




          (i) to cause the Trust to comply with the Trust’s obligations under the Trust Indenture Act;




          (j) to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the
Property Trustee, which certificate may be executed by any Administrative Trustee;




          (k) to incur expenses that are necessary or incidental to carry out any of the purposes of the
Trust;




          (l) to act as, or appoint another Person to act as, registrar and transfer agent for the
Securities;




          (m) to give prompt written notice to the Holders of the Securities of any notice received from
the ICON Issuer of its election to defer payments of interest on the ICONs as authorized by the
Indenture;




          (n) to give prompt written notice to the Holders of the Securities of any certification of a
Market Disruption Event received from the ICON Issuer under the ICONs as authorized by the
Indenture;




          (o) to take all action that may be necessary or appropriate for the preservation and the
continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust
under the laws of the State of Delaware and of each other jurisdiction in which such




14









 







existence is necessary to protect the limited liability of the Holders of the Capital
Securities and the Holders of the Common Securities or to enable the Trust to effect the purposes
for which the Trust was created;




          (p) to take any action, not inconsistent with applicable law, that the Administrative Trustees
determine in their discretion to be necessary or desirable in carrying out the purposes and
functions of the Trust as set out in Section 3.3 or the activities of the Trust as set out in this
Section 3.6, including, but not limited to:





     (i) causing the Trust not to be deemed to be an Investment Company required to
be registered under the Investment Company Act;




     (ii) causing the Trust to be classified as a grantor trust for United States
federal income tax purposes; and




     (iii) cooperating with the ICON Issuer to ensure that the ICONs will be treated
as indebtedness of the ICON Issuer for United States federal income tax purposes.



          (q) to take all action necessary to cause all applicable tax returns and tax information
reports that are required to be filed with respect to the Trust to be duly prepared and filed by
the Administrative Trustees, on behalf of the Trust; and




          (r) to execute and deliver all documents or instruments, perform all duties and powers, and do
all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing.




     The Administrative Trustees shall exercise the powers set forth in this Section 3.6 in a
manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and
the Administrative Trustees shall have no power to, and shall not, take any action that is
inconsistent with the purposes and functions of the Trust set forth in Section 3.3.



     Subject to this Section 3.6, the Administrative Trustees shall have none of the powers or the
authority of the Property Trustee set forth in Section 3.8.



     Any expenses incurred by the Administrative Trustees pursuant to this Section 3.6 shall be
reimbursed by the ICON Issuer.



     SECTION 3.7. Prohibition of Actions by the Trust and the Trustees.



          (a) The Trust shall not, and none of the Trustees (including the Property Trustee) shall cause
the Trust to, engage in any activity other than as required or authorized by this Trust Agreement.
In particular, the Trust shall not and none of the Trustees (including the Property Trustee) shall
cause the Trust to:





       (i) invest any proceeds received by the Trust from holding the ICONs, but shall
distribute all such proceeds to Holders of Securities pursuant to the terms of this
Trust Agreement and of the Securities;



15









 






     (ii) acquire any assets other than as expressly provided herein;




     (iii) possess Trust property for other than a Trust purpose;




     (iv) make any loans (other than those represented by the ICONs) or incur any
indebtedness;




     (v) possess any power or otherwise act in such a way as to vary the Trust
assets;




     (vi) possess any power or otherwise act in such a way as to vary the terms of
the Securities in any way whatsoever (except to the extent expressly authorized in
this Trust Agreement or by the terms of the Securities);




     (vii) issue any securities or other evidences of beneficial ownership of, or
beneficial interest in, the Trust other than the Securities;




     (viii) other than as provided in this Trust Agreement or by the terms of the
Securities, (A) direct the time, method and place of exercising any trust or power
conferred upon the ICON Trustee with respect to the ICONS, (B) waive any past
default that is waivable under the Indenture, (C) exercise any right to rescind or
annul any declaration that the principal of all the ICONs shall be due and payable,
or (D) consent to any amendment, modification or termination of the Indenture or the
ICONs where such consent shall be required unless the Trust shall have received an
opinion of counsel to the effect that such modification will not cause more than an
insubstantial risk that the Trust will be deemed an Investment Company required to
be registered under the Investment Company Act, or the Trust will be classified as
other than a grantor trust for United States federal income tax purposes;




     (ix) take any action inconsistent with the status of the Trust as a grantor
trust for United States federal income tax purposes; or




     (x) revoke any action previously authorized or approved by vote of the Holders
of the Capital Securities.



     SECTION 3.8. Powers and Duties of the Property Trustee.



          (a) The legal title to the ICONs shall be owned by and held of record in the name of the
Property Trustee for the benefit of the Trust and the Holders of the Securities. The right, title
and interest of the Property Trustee to the ICONs shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with regard to the
ICONs have been executed and delivered.




          (b) The Property Trustee shall not transfer its right, title and interest in the ICONs to the
Administrative Trustees or to the Delaware Trustee (if the Property Trustee does not also act as
Delaware Trustee).




16









 








          (c) The Property Trustee shall:





     (i) establish and maintain a segregated non-interest bearing trust account (the
“Property Account”) in the name of and under the exclusive control of the Property
Trustee on behalf of the Holders of the Securities and, upon the receipt of payments
of funds made in respect of the ICONs held by the Property Trustee, deposit such
funds into the Property Account and make payments to the Holders of the Capital
Securities and Holders of the Common Securities from the Property Account in
accordance with Section 7.2. Funds in the Property Account shall be held uninvested
until disbursed in accordance with this Trust Agreement. The Property Account shall
be an account that is maintained with a banking institution the rating on whose
long-term unsecured indebtedness is at least equal to the rating assigned to the
Capital Securities by a “nationally recognized statistical rating organization”,
within the meaning of Rule 436(g)(2) under the Securities Act;




     (ii) engage in such ministerial activities as shall be necessary or appropriate
to effect the redemption of the Capital Securities and the Common Securities to the
extent the ICONs are redeemed or mature; and




     (iii) upon written notice of distribution issued by the Administrative Trustees
in accordance with the terms of the Securities, engage in such ministerial
activities as so directed and as shall be necessary or appropriate to effect the
distribution of the ICONs to Holders of Securities upon the occurrence of a Special
Event.



          (d) The Property Trustee shall take all actions and perform such duties as may be specifically
required of the Property Trustee pursuant to the terms of this Trust Agreement and the Securities.




          (e) The Property Trustee shall take any Legal Action which arises out of or in connection with
a Trust Enforcement Event of which a Responsible Officer of the Property Trustee has actual
knowledge or the Property Trustee’s duties and obligations under this Trust Agreement or the Trust
Indenture Act; provided, however, that if a Trust Enforcement Event has occurred and is continuing
and such event is attributable to the failure of the ICON Issuer to pay interest, principal or
other required payments on the ICONs on the date such interest, principal or other required
payments are otherwise payable (or in the case of redemption, on the redemption date), then a
Holder of Capital Securities may directly institute a proceeding against the ICON Issuer for
enforcement of payment to such Holder of the principal of or interest on ICONs having a principal
amount equal to the aggregate liquidation amount of the Capital Securities of such Holder (a
“Direct Action”) on or after the respective due date specified in the ICONs. Notwithstanding
anything to the contrary in this Trust Agreement or the Indenture, the ICON Issuer shall have the
right to set-off any payment it is otherwise required to make under the Indenture in respect of any
Capital Security to the extent the ICON Issuer has heretofore made, or is currently on the date of
such payment making, a payment under the Guarantee relating to such Capital Security or under
Section 5.8 of the Indenture.




17









 








          (f) The Property Trustee shall continue to serve as a Trustee until either:





     (i) the Trust has been completely liquidated and the proceeds of the
liquidation distributed to the Holders of Securities pursuant to the terms of the
Securities; or




     (ii) a Successor Property Trustee has been appointed and has accepted that
appointment in accordance with Section 6.6.



          (g) The Property Trustee shall have the legal power to exercise all of the rights, powers and
privileges of a holder of ICONs under the Indenture and, if a Trust Enforcement Event actually
known to a Responsible Officer of the Property Trustee occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the
ICONs subject to the rights of the Holders pursuant to the terms of such Securities.




          (h) The Property Trustee may authorize one or more Persons (each, a “Paying Agent”) to pay
Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to
all Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a successor Paying
Agent or additional Paying Agents may be appointed at any time by the Property Trustee.




          (i) Subject to this Section 3.8, the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrative Trustees set forth in Section 3.6.




     The Property Trustee shall exercise the powers set forth in this Section 3.8 in a manner that
is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Property
Trustee shall have no power to, and shall not, take any action that is inconsistent with the
purposes and functions of the Trust set out in Section 3.3.



     SECTION 3.9. Certain Duties and Responsibilities of the Property Trustee.



          (a) The Property Trustee, before the occurrence of any Trust Enforcement Event and after the
curing of all Trust Enforcement Events that may have occurred, shall undertake to perform only such
duties as are specifically set forth in this Trust Agreement and no implied covenants shall be read
into this Trust Agreement against the Property Trustee. In case a Trust Enforcement Event has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a Responsible Officer
of the Property Trustee has actual knowledge, the Property Trustee shall exercise such of the
rights and powers vested in it by this Trust Agreement, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.




          (b) No provision of this Trust Agreement shall be construed to relieve the Property Trustee
from liability for its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:




18









 









     (i) prior to the occurrence of a Trust Enforcement Event and after the curing
or waiving of all such Trust Enforcement Events that may have occurred:




	 	a.	 	the duties and obligations of the
Property Trustee shall be determined solely by the express
provisions of this Trust Agreement and the Property Trustee
shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Trust
Agreement, and no implied covenants or obligations shall be read
into this Trust Agreement against the Property Trustee; and
	 
	 	b.	 	in the absence of bad faith on
the part of the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Property Trustee and
conforming to the requirements of this Trust Agreement; but in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Property Trustee, the Property Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Trust Agreement;






     (ii) the Property Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer of the Property Trustee, unless it shall be
proved that the Property Trustee was negligent in ascertaining the pertinent facts;




     (iii) the Property Trustee shall not be liable with respect to any action taken
or omitted to be taken by it without negligence, in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation Amount of
the Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;




     (iv) no provision of this Trust Agreement shall require the Property Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this Trust Agreement
or indemnity reasonably satisfactory to the Property Trustee against such risk or
liability is not reasonably assured to it;




     (v) the Property Trustee’s sole duty with respect to the custody, safe-keeping
and physical preservation of the ICONs and the Property Account shall be to deal
with such property in a similar manner as the Property Trustee deals with similar
property for its own account, subject to the protections and



19









 






limitations on liability afforded to the Property Trustee under this Trust
Agreement and the Trust Indenture Act;




     (vi) the Property Trustee shall have no duty or liability for or with respect
to the value, genuineness, existence or sufficiency of the ICONs or the payment of
any taxes or assessments levied thereon or in connection therewith;




     (vii) the Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Sponsor. Money held by the
Property Trustee need not be segregated from other funds held by it except in
relation to the Property Account maintained by the Property Trustee pursuant to
Section 3.8(c)(i) and except to the extent otherwise required by law; and




     (viii) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Sponsor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for any
default or misconduct of the Administrative Trustees or the Sponsor.



     SECTION 3.10. Certain Rights of Property Trustee.



          (a) Subject to the provisions of Section 3.9:





     (i) the Property Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, ICON,
note, other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the proper party or parties;




     (ii) any direction or act of the Sponsor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’
Certificate;




     (iii) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be proved or established before
taking, suffering or omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of bad faith
on its part, request and conclusively rely upon an Officers’ Certificate which, upon
receipt of such request, shall be promptly delivered by the Sponsor or the
Administrative Trustees;




     (iv) the Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation statement or
any filing under tax or securities laws) or any rerecording, refiling or
registration thereof;



20









 






     (v) the Property Trustee may consult with counsel of its choice or other
experts and the advice or opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts’ area of expertise shall be full
and complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such advice or
opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and
may include any of its employees. The Property Trustee shall have the right at any
time to seek instructions concerning the administration of this Trust Agreement from
any court of competent jurisdiction;




     (vi) the Property Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Trust Agreement at the request or direction of
any Holder, unless such Holder shall have provided to the Property Trustee security
and indemnity, reasonably satisfactory to the Property Trustee, against the costs,
expenses (including reasonable attorneys’ fees and expenses and the expenses of the
Property Trustee’s agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Property Trustee; provided that,
nothing contained in this Section 3.10(a) shall be taken to relieve the Property
Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to
exercise the rights and powers vested in it by this Trust Agreement;




     (vii) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, ICON, note, other
evidence of indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit;




     (viii) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents, custodians,
nominees or attorneys and the Property Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder, provided that such agent, custodian, nominee or attorney is a
United States Person as defined in Section 7701(a)(30) of the Code;




     (ix) any authorized or required action taken by the Property Trustee or its
agents hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action and no third party shall be required to inquire
as to the authority of the Property Trustee to so act or as to its compliance with
any of the terms and provisions of this Trust Agreement, both of which shall be
conclusively evidenced by the Property Trustee’s or its agent’s taking such action;




     (x) whenever in the administration of this Trust Agreement the Property Trustee
shall deem it desirable to receive instructions with respect to



21









 






enforcing any remedy or right or taking any other action hereunder, the
Property Trustee (i) may request instructions from the Holders of the Securities
which instructions may only be given by the Holders of the same proportion in
liquidation amount of the Securities as would be entitled to direct the Property
Trustee under the terms of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right or taking such other
action until such instructions are received, and (iii) shall be protected in
conclusively relying on or acting in or accordance with such instructions;




     (xi) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement;




     (xii) the Property Trustee shall not be liable for any action taken, suffered
or omitted to be taken by it without negligence or willful misconduct, in good faith
and reasonably believed by it to be authorized or within the discretion, rights or
powers conferred upon it by this Trust Agreement;




     (xiii) without prejudice to any other rights available to the Property Trustee
under applicable law, when the Property Trustee incurs expenses or renders services
in connection with a bankruptcy, such expenses (including the fees and expenses of
its counsel) and the compensation for such services are intended to constitute
expenses of administration under any bankruptcy law or law relating to creditors
rights generally; and




     (xiv) the Property Trustee shall not be charged with knowledge of a Trust
Enforcement Event unless a Responsible Officer of the Property Trustee obtains
actual knowledge of such event or the Property Trustee receives written notice of
such event from Holders holding more than a Majority in Liquidation Amount of the
Capital Securities;



      (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on
the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which the
Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform
any such act or acts, or to exercise any such right, power, duty or obligation. No permissive
power or authority available to the Property Trustee shall be construed to be a duty.




     SECTION 3.11. Delaware Trustee.



     Notwithstanding any other provision of this Trust Agreement other than Section 6.2, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have
any of the duties and responsibilities of the Administrative Trustees or the Property Trustee
described in this Trust Agreement. Except as set forth in Section 6.2, the Delaware Trustee shall
be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of
the Delaware Statutory Trust Act. In the event the Delaware Trustee shall at any time be required
to take any action or perform any duty hereunder with respect to the Trust, the Delaware



22









 




Trustee shall be entitled to all of the same rights as the Property Trustee listed in Section
3.9(b) and Section 3.10.




     SECTION 3.12. Execution of Documents.



     Except as otherwise required by the Delaware Statutory Trust Act or applicable law, any
Administrative Trustee is authorized to execute on behalf of the Trust any documents that the
Administrative Trustees have the power and authority to execute pursuant to Section 3.6.



     SECTION 3.13. Not Responsible for Recitals or Issuance of Securities.



     The recitals contained in this Trust Agreement and the Securities shall be taken as the
statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness.
The Trustees make no representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or sufficiency of this
Trust Agreement, the Securities, the ICONs or the Indenture.



     SECTION 3.14. Duration of Trust.



     The Trust shall exist until dissolved and terminated pursuant to the provisions of Article 8
hereof.



     SECTION 3.15. Mergers.



          (a) The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety to any Person,
except as described in Section 3.15(b) and (c) or Section 8.2.




          (b) The Trust may, at the request of the Sponsor and with the consent of the Administrative
Trustees or, if there are more than two, a majority of the Administrative Trustees and without the
consent of the Holders of the Securities, the Delaware Trustee or the Property Trustee,
consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its
properties substantially as an entirety to a trust organized as such under the laws of any State;
provided, that:





     (i) if the Trust is not the successor, such successor entity (the “Successor
Entity”) either:




	 	a.	 	expressly assumes all of the
obligations of the Trust with respect to the Securities; or
	 
	 	b.	 	substitutes for the Capital
Securities other securities having substantially the same terms
as the Capital Securities (the “Successor Securities”) so long
as the Successor Securities rank the same as the Capital
Securities rank in priority with respect to Distributions and
payments upon liquidation, redemption and otherwise;




23









 












     (ii) the ICON Issuer expressly appoints a trustee of such Successor Entity that
possesses the same powers and duties as the Property Trustee as the holder of the
ICONs;




     (iii) the Capital Securities or any Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any national
securities exchange or with any other or organization on which the Capital
Securities are then listed or quoted;




     (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Capital Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical rating
organization;




     (v) such merger, consolidation, amalgamation, replacement, conveyance, transfer
or lease does not adversely affect the rights, preferences and privileges of the
Holders of the Capital Securities (including any Successor Securities) in any
material respect;




     (vi) such Successor Entity has a purpose substantially identical to that of the
Trust;




     (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease the Sponsor has received an opinion of independent
counsel to the Trust experienced in such matters to the effect that:




	 	a.	 	such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders of the Capital Securities (including any Successor
Securities) in any material respect;
	 
	 	b.	 	following such merger,
consolidation, amalgamation, replacement, conveyance, transfer
or lease neither the Trust nor the Successor Entity will be
required to register as an Investment Company; and
	 
	 	c.	 	following such merger,
consolidation, amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a grantor
trust for United States federal income tax purposes;






     (viii) the Sponsor or any permitted successor or assignee owns all of the
common securities and guarantees the obligations of such Successor Entity under the
Successor Securities at least to the extent provided by the Securities Guarantee and
such Successor Entity expressly assumes all of the obligations of the Trust with
respect to the Trustees.



24









 





          (c) Notwithstanding Section 3.15(b), the Trust shall not, except with the consent of Holders
of 100% in aggregate liquidation amount of the Securities, consolidate, amalgamate, merge with or
into, or be replaced by or convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate, amalgamate, merge with or
into, or replace it, if such consolidation, amalgamation, merger, replacement, conveyance, transfer
or lease would cause the Trust or Successor Entity to be classified as other than a grantor trust
for United States federal income tax purposes and each Holder of the Securities not to be treated
as owning an undivided interest in the ICONs.




     SECTION 3.16. Property Trustee May File Proofs of Claim.



     In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative
to the Trust or any other obligor upon the Securities or the property of the Trust or of such other
obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the
Securities shall then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Property Trustee shall have made any demand on the Trust for the
payment of any past due Distributions) shall be entitled and empowered, to the fullest extent
permitted by law, by intervention in such proceeding or otherwise:




     (a) to file and prove a claim for the whole amount of any Distributions owing and
unpaid in respect of the Securities (or, if the Securities are original issue discount
Securities, such portion of the liquidation amount as may be specified in the terms of such
Securities) and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its and counsel)
and of the Holders allowed in such judicial proceeding, and




     (b) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;


and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such payments to the
Property Trustee and, in the event the Property Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Property Trustee any amount due it for the
reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents
and counsel, and any other amounts due the Property Trustee.




     Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or
consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement
adjustment or compensation affecting the Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.



25









 





ARTICLE 4




SPONSOR




     SECTION 4.1. Responsibilities of the Sponsor.



     In connection with the issue of the Capital Securities, the Sponsor shall have the exclusive
right and responsibility to engage in the following activities:




     (a) to prepare for filing by the Trust with the Commission under the Securities Act or
the Exchange Act, and execute on behalf of the Trust, one or more registration statements on
the applicable forms, including any amendments thereto, pertaining to the Capital
Securities, the Guarantee and the ICONs;




     (b) to determine the States in which to take appropriate action to qualify or register
for sale all or part of the Capital Securities and to do any and all such acts, other than
actions which must be taken by the Trust, and advise the Trust of actions it must take, and
prepare for execution and filing any documents to be executed and filed by the Trust, as the
Sponsor deems necessary or advisable in order to comply with the applicable laws of any such
States; and




     (c) to negotiate the terms of, and execute, an underwriting agreement and other related
agreements providing for the sale of the Capital Securities.



     SECTION 4.2. Indemnification and Fees and Expenses of the Trustees.



     The Sponsor, in its capacity as ICON Issuer, agrees to indemnify the Property Trustee and the
Delaware Trustee for, and to hold each of them harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Property Trustee or the Delaware
Trustee, as the case may be, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of defending either of them
against any claim or liability in connection with the exercise or performance of any of their
respective powers or duties hereunder; the provisions of this Section 4.2 shall survive the
resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this
Trust Agreement.



     SECTION 4.3. Compensation of the Trustees.



     The Sponsor agrees to pay the Property Trustee and the Delaware Trustee from time to time such
compensation for all services rendered by the Property Trustee and the Delaware Trustee hereunder
as may be mutually agreed upon in writing by the Sponsor and the Property Trustee or the Delaware
Trustee, as the case may be, and, except as otherwise expressly provided herein, to reimburse the
Property Trustee and the Delaware Trustee upon its or their request for all reasonable expenses,
disbursements and advances incurred or made by the Property Trustee or the Delaware Trustee, as the
case may be, in accordance with the provisions of this Trust Agreement, except any such expense,
disbursement or advance as may be attributable to its or their negligence or bad faith.




26









 






ARTICLE 5




TRUST COMMON SECURITIES HOLDER




     SECTION 5.1. ICON Issuer’s Receipt of Common Securities.



     On the Closing Date, the ICON Issuer will receive all of the Common Securities issued
by the Trust on the same date in exchange for ICONs issued to the Trust by the ICON Issuer. The
Common Securities will be issued in an amount equal to at least 3% of the capital of the Trust.



     The aggregate stated liquidation amount of Common Securities outstanding at any time shall not
be less than 3% of the capital of the Trust.



     SECTION 5.2. Covenants of the Common Securities Holder.



     For so long as the Capital Securities remain outstanding, the Common Securities Holder will
covenant (i) to maintain directly 100% ownership of the Common Securities, (ii) to cause the Trust
to remain a statutory trust and not to voluntarily dissolve, wind up, liquidate or be terminated,
except as permitted by this Trust Agreement, (iii) to use its commercially reasonable efforts to
ensure that the Trust will not be an investment company for purposes of the Investment Company Act,
and (iv) to take no action which would be reasonably likely to cause the Trust to be classified as
other than a grantor trust for United States federal income tax purposes.



ARTICLE 6




TRUSTEES




     SECTION 6.1. Number of Trustees.



     The number of Trustees initially shall be five, and:




     (a) at any time before the issuance of any Securities, the Sponsor may, by written
instrument, increase or decrease the number of Trustees;




     (b) after the issuance of any Securities, the number of Trustees may be increased or
decreased by vote of the Holders of a Majority in Liquidation Amount of the Common
Securities voting as a class at a meeting of the Holders of the Common Securities or by
written consent in lieu of such meeting; provided that the number of Trustees shall be at
least three; and provided further that (1) the Delaware Trustee, in the case of a natural
person, shall be a person who is a resident of the State of Delaware or that, if not a
natural person, is an entity which has its principal place of business in the State of
Delaware and otherwise meets the requirements of applicable law; (2) at least one
Administrative Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(3) one Trustee shall be the Property Trustee for so long as this Trust Agreement is
required to qualify as an indenture under the Trust Indenture Act, and such Trustee may also
serve as Delaware Trustee if it meets the applicable requirements;



27









 






     (c) at all times, the Property Trustee must be (i) a bank as defined in Section 581 of
the Code or (ii) a U.S. government-owned agency or U.S. government sponsored enterprise; and




     (d) at all times, each Trustee must be a United States Person as defined in Section
7701(a)(30) of the Code.



     SECTION 6.2. Delaware Trustee; Eligibility.



     If required by the Delaware Statutory Trust Act, one Trustee (which may be the Property
Trustee) (the “Delaware Trustee”) shall be:




     (a) a natural person who is a resident of the State of Delaware; or




     (b) if not a natural person, an entity which has its principal place of business in the
State of Delaware, and otherwise meets the requirements of applicable law,


provided that, if the Property Trustee has its principal place of business in the State of Delaware
and otherwise meets the requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.




     SECTION 6.3. Property Trustee; Eligibility.



          (a) There shall at all times be one Trustee (which may be the Delaware Trustee) which shall
act as Property Trustee which shall:





     (i) not be an Affiliate of the Sponsor; and




     (ii) be a corporation organized and doing business under the laws of the United
States of America or any State or Territory thereof or of the District of Columbia,
or a corporation or other Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust owners, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or examination by
federal, State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority referred to above, then for
the purposes of this Section 6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published.



          (b) If at any time the Property Trustee shall cease to be eligible to so act under Section
6.3(a), the Property Trustee shall immediately resign in the manner and with the effect set forth
in Section 6.6(c).




          (c) If the Property Trustee has or shall acquire any “conflicting interest” within the meaning
of Section 310(b) of the Trust Indenture Act, the Property Trustee and the Holder of the Common
Securities (as if it were the obligor referred to in Section 310(b) of the




28









 







Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.




          (d) The Guarantee shall be deemed to be specifically described in this Trust Agreement for
purposes of clause (i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.




     SECTION 6.4. Qualifications of Administrative Trustees and Delaware Trustee Generally.



     Each Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as
Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more Authorized Officers.



     SECTION 6.5. Initial Administrative Trustees.



     The initial Administrative Trustees shall be:



     David M. Moffett, Daryl N. Bible and Lee R. Mitau, the business address of all of whom is c/o
U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402.



     SECTION 6.6. Appointment, Removal and Resignation of Trustees.



          (a) Subject to Section 6.6(b), Trustees may be appointed or removed without cause at any time:





     (i) until the issuance of any Securities, by written instrument executed by the
Sponsor;




     (ii) after the issuance of any Securities (but prior to the occurrence of an
Indenture Event of Default), by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of the
Common Securities; and




     (iii) after the issuance of the Capital Securities and the occurrence of an
Indenture Event of Default, and only with respect to each of the Property Trustee
and Delaware Trustee, by vote of the Holders of a Majority in Liquidation Amount of
the Capital Securities.



          (b) The Trustee that acts as Property Trustee shall not be removed in accordance with Section
6.6(a) until a successor Trustee possessing the qualifications to act as Property Trustee under
Section 6.3(a) (a “Successor Property Trustee”) has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee and delivered to the
Administrative Trustees and the Sponsor. The Trustee that acts as Delaware Trustee shall not be
removed in accordance with Section 6.6(a) until a successor Trustee possessing the qualifications
to act as Delaware Trustee under Sections 6.2 and 6.4 (a “Successor Delaware Trustee”) has been
appointed and has accepted such appointment by




29









 







written instrument executed by such Successor Delaware Trustee and delivered to the
Administrative Trustees and the Sponsor.




          (c) A Trustee appointed to office shall hold office until his or its successor shall have been
appointed, until his death or its dissolution or until his or its removal or resignation. Any
Trustee may resign from office (without need for prior or subsequent accounting) by an instrument
in writing signed by the Trustee and delivered to the Sponsor and the Trust, which resignation
shall take effect upon such delivery or upon such later date as is specified therein; provided,
however, that:





     (i) no such resignation of the Trustee that acts as the Property Trustee shall
be effective:




	 	a.	 	until a Successor Property
Trustee has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and
delivered to the Trust, the Sponsor and the resigning Property
Trustee; or
	 
	 	b.	 	until the assets of the Trust
have been completely liquidated and the proceeds thereof
distributed to the holders of the Securities; and






     (ii) no such resignation of the Trustee that acts as the Delaware Trustee shall
be effective until a Successor Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor Delaware Trustee and
delivered to the Trust, the Sponsor and the resigning Delaware Trustee.



          (d) The Holders of the Common Securities shall use their best efforts to promptly appoint a
Successor Delaware Trustee or Successor Property Trustee, as the case may be, if the Property
Trustee or the Delaware Trustee delivers an instrument of resignation in accordance with this
Section 6.6.




          (e) If no Successor Property Trustee or Successor Delaware Trustee, as the case may be, shall
have been appointed and accepted appointment as provided in this Section 6.6 within 60 days after
delivery to the Sponsor and the Trust of an instrument of resignation or removal, the resigning or
removed Property Trustee or Delaware Trustee, as applicable, may petition any court of competent
jurisdiction in the U.S. for appointment of a Successor Property Trustee or Successor Delaware
Trustee, as applicable. Such court may thereupon, after prescribing such notice, if any, as it may
deem proper, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may
be.




          (f) No Property Trustee or Delaware Trustee shall be liable for the acts or omissions to act
of any Successor Property Trustee or Successor Delaware Trustee, as the case may be.




30









 








     SECTION 6.7. Vacancies among Trustees.



     If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced
pursuant to Section 6.1, or if the number of Trustees is increased pursuant to Section 6.1, a
vacancy shall occur. A resolution certifying the existence of such vacancy by the Administrative
Trustees or, if there are more than two, a majority of the Administrative Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be filled with a Trustee
appointed in accordance with Section 6.6.



     SECTION 6.8. Effect of Vacancies.



     The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation,
incompetence or incapacity to perform the duties of a Trustee shall not operate to annul, dissolve
or terminate the Trust. Whenever a vacancy in the number of Administrative Trustees shall occur,
until such vacancy is filled by the appointment of an Administrative Trustee in accordance with
Section 6.6, the Administrative Trustees in office, regardless of their number, shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.



     SECTION 6.9. Meetings.



     If there is more than one Administrative Trustee, meetings of the Administrative Trustees
shall be held from time to time upon the call of any Administrative Trustee. Regular meetings of
the Administrative Trustees may be held at a time and place fixed by resolution of the
Administrative Trustees. Notice of any in-person meetings of the Administrative Trustees shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any telephonic meetings
of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including
by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting.
Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting.
The presence (whether in person or by telephone) of an Administrative Trustee at a meeting shall
constitute a waiver of notice of such meeting except where an Administrative Trustee attends a
meeting for the express purpose of objecting to the transaction of any activity on the ground that
the meeting has not been lawfully called or convened. Unless provided otherwise in this Trust
Agreement, any action of the Administrative Trustees may be taken at a meeting by vote of a
majority of the Administrative Trustees present (whether in person or by telephone) and eligible to
vote with respect to such matter, provided that a Quorum is present, or without a meeting by the
unanimous written consent of the Administrative Trustees. In the event there is only one
Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a
written consent of such Administrative Trustee.



     SECTION 6.10. Delegation of Power.



          (a) Any Administrative Trustee may, by power of attorney consistent with applicable law,
delegate to any natural person over the age of 21 his, her or its power for the purpose of
executing any documents contemplated in Section 3.6 or making any governmental




31









 







filing; provided that such person is a United States Person as defined in Section 7701(a)(30)
of the Code.




          (b) The Administrative Trustees shall have power to delegate from time to time to such of
their number or to officers of the Trust the doing of such things and the execution of such
instruments either in the name of the Trust or the names of the Administrative Trustees or
otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein;
provided, that such person is a United States Person as defined in Section 7701(a)(30) of the Code.




     SECTION 6.11. Merger, Conversion, Consolidation or Succession to Business.



     Any corporation into which the Property Trustee, the Delaware Trustee or any Administrative
Trustee that is not a natural person may be merged or converted or with such Trustee may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
such Trustee shall be a party, or any corporation succeeding to all or substantially all the
corporate trust business of such Trustee shall be the successor of such Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto.



ARTICLE 7




TERMS OF SECURITIES




     SECTION 7.1. General Provisions Regarding Securities.



          (a) The Administrative Trustees shall on behalf of the Trust issue one class of capital
securities representing undivided beneficial interests in the assets of the Trust and one class of
common securities representing undivided beneficial interests in the assets of the Trust.





     (i) Capital Securities. The Capital Securities of the Trust have an aggregate
liquidation amount with respect to the assets of the Trust of up to four hundred
thirty-one million two hundred fifty thousand dollars ($431,250,000) with respect to
the closing of the sale of Capital Securities on one or more occasions. The Capital
Securities are hereby designated for identification purposes only as “6.35% Trust
Preferred Securities” (the “Capital Securities”). The Capital Security Certificates
evidencing the Capital Securities shall be substantially in the form of Exhibit A to
this Trust Agreement, with such changes and additions thereto or deletions therefrom
as may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Capital Securities are listed or quoted.




     (ii) Common Securities. The Common Securities of the Trust have an aggregate
liquidation amount with respect to the assets of the Trust of up to thirteen million
three hundred thirty-seven thousand six hundred fifty dollars



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($13,337,650) with respect to the closing of the sale of Common Securities on
one or more occasions. The Common Securities are hereby designated for
identification purposes only as “6.35% Common Securities” (the “Common Securities”
and, together with the Capital Securities, the “Securities”). The Common Security
Certificates evidencing the Common Securities shall be substantially in the form of
Exhibit B to this Trust Agreement, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or practice.



          (b) Payment of Distributions on, and payment of the Redemption Price upon a redemption of, the
Capital Securities and the Common Securities, as applicable, shall be made Pro Rata based on the
liquidation amount of such Capital Securities and Common Securities; provided, however, that if on
any date on which amounts payable on distribution or redemption, an Indenture Event of Default
shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of,
any of the Common Securities, and no other payment on account of the redemption, liquidation or
other acquisition of such Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Capital Securities for all
Distribution periods terminating on or prior thereto, or, in the case of amounts payable on
redemption, the full amount of the Redemption Price for all of the outstanding Capital Securities
then called for redemption, shall have been made or provided for, and all funds available to the
Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or
the Redemption Price of, the Capital Securities then due and payable. The Trust shall issue no
securities or other interests in the assets of the Trust other than the Capital Securities and the
Common Securities.




          (c) The Certificates shall be signed on behalf of the Trust by an Administrative Trustee.
Such signature shall be the manual or facsimile signature of any present or any future
Administrative Trustee. In case an Administrative Trustee of the Trust who shall have signed any
of the Certificates shall cease to be such Administrative Trustee before the Certificates so signed
shall be delivered by the Trust, such Certificates nevertheless may be delivered as though the
person who signed such Certificates had not ceased to be such Administrative Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the actual date of
execution of such Certificate, shall be the Administrative Trustees of the Trust, although at the
date of the execution and delivery of the Trust Agreement any such person was not such an
Administrative Trustee. Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Administrative Trustees, as evidenced by
their execution thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Administrative Trustees may deem appropriate,
or as may be required to comply with any law or with any rule or regulation of any stock exchange
on which Securities may be listed, or to conform to usage.




     A Certificate representing Capital Securities shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. Such signature shall be
conclusive evidence that such Certificate has been authenticated under this Trust Agreement.



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     Upon a written order of the Trust signed by one Administrative Trustee, the Property Trustee
shall authenticate the Certificates representing Capital Securities for original issue. The
aggregate amount of Capital Securities outstanding at any time shall not exceed the liquidation
amount set forth in Section 7.1(a)(i).



     The Property Trustee may appoint an authenticating agent acceptable to the Trust to
authenticate Certificates. An authenticating agent may authenticate Certificates whenever the
Property Trustee may do so. Each reference in this Trust Agreement to authentication by the
Property Trustee includes authentication by such agent. An authenticating agent has the same
rights as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.



          (d) The consideration received by the Trust for the issuance of the Securities shall
constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust.




          (e) Upon issuance of the Securities as provided in this Trust Agreement, the Securities so
issued shall be deemed to be validly issued, fully paid and non-assessable undivided beneficial
interests in the assets of the Trust.




          (f) Every Person, by virtue of having become a Holder or a Capital Security Beneficial Owner
in accordance with the terms of this Trust Agreement, shall be deemed to have expressly assented
and agreed to the terms of, and shall be bound by, this Trust Agreement and the terms of the
Securities.




          (g) The holders of the Securities shall have no preemptive or similar rights.




     SECTION 7.2. Distributions.



          (a) As owners of undivided beneficial ownership interests in the ICONs, holders of Securities
shall be entitled (subject to the last sentence of this Section 2.2(a)) to receive cumulative cash
Distributions at the rate per annum of 6.35% of the stated liquidation amount of $25.00 per
Security. Pursuant to the Indenture, the amount of interest on the ICONs payable for any period
shorter than a full quarterly interest period, and, as a result, Distributions on the Securities
payable for any period shorter than a full quarterly distribution period shall be computed on the
basis of a 30-day month and for periods of less than a month, the actual number of days elapsed per
30-day month. Subject to Section 7.1(b), Distributions shall be made on the Capital Securities and
the Common Securities on a Pro Rata basis. Pursuant to the Indenture, interest on the ICONs shall,
from the date of original issue, accrue and be cumulative, and, as a result Distributions on the
Securities shall, from the date of original issue, accumulate and be cumulative. Distributions
shall be payable quarterly in arrears on each March 29, June 29, September 29 and December 29 of
each year, commencing March 29, 2006, when, as and if available for payment, by the Property
Trustee, except as otherwise described below. Distributions are payable only to the extent that
payments are made by the ICON Issuer in respect of the ICONs held by the Property Trustee and to
the extent that the Trust has funds available for the payment of such Distributions in the Property
Account.




          (b) Pursuant to the Indenture, interest not paid on the scheduled payment date will accrue and
compound quarterly at the rate of 6.35% per annum, and, as a result, interests on




34









 







the ICONs not paid on the scheduled payment date will accrue and compound quarterly at the
rate of 6.35% per annum (and, as a result) the Distributions on the Securities will accumulate and
compound at the rate of 6.35% per annum (“Compounded Distributions”). “Distributions” shall mean
ordinary cumulative distributions together with any Compounded Distributions.




          (c) If and to the extent that the ICON Issuer makes a payment of interest, premium and/or
principal on the ICONs held by the Property Trustee (the amount of any such payment being a
“Payment Amount”), the Property Trustee shall and is directed, to the extent funds are available
for that purpose, make a Pro Rata distribution of the Payment Amount to Holders, subject to Section
7.1(b).




          (d) Distributions on the Securities shall be payable to the Holders thereof as they appear on
the register of the Trust as of the close of business on the relevant record dates. While the
Capital Securities are represented by one or more Global Securities, the relevant record dates
shall be the close of business the Business Day preceding such Distribution payment date; otherwise
the relevant record date shall be the fifteenth day (whether or not a Business Day) preceding such
Distribution payment date. At all times, the Distribution payment dates shall correspond to the
interest payment dates on the ICONs. Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result of the ICON Issuer having failed to
make a payment under the ICONs, shall cease to be payable to the Person in whose name such
Securities are registered on the relevant record date, and such defaulted Distribution will instead
be payable to the Person in whose name such Securities are registered on the special record date or
other specified date determined in accordance with this Trust Agreement. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment of the Distribution
payable on such date will be made on the next succeeding day that is a Business Day (and without
any interest or other payment in respect of any such delay), with the same force and effect as if
made on such payment date.




          (e) In the event that there is any money or other property held by or for the Trust that is
not accounted for hereunder, such property shall be distributed Pro Rata among the Holders of the
Securities except as provided in Section 7.1(b).




     SECTION 7.3. Redemption of Securities.



          (a) Upon the repayment or redemption, in whole or in part, of the ICONs held by the Trust,
whether at the stated maturity of the ICONs or upon earlier redemption as provided in the
Indenture, the proceeds from such repayment or redemption shall be simultaneously applied Pro Rata
(subject to Section 7.1(b)) to redeem Securities having an aggregate liquidation amount equal to
the aggregate principal amount of the ICONs so repaid or redeemed at the Redemption Price. Holders
shall be given not less than 30 nor more than 60 days notice of such redemption in accordance with
Section 7.4.




          (b) On the date fixed for any distribution of ICONs, upon dissolution of the Trust, (i) the
Securities will no longer be deemed to be outstanding and (ii) certificates representing Securities
will be deemed to represent the ICONs having an aggregate principal amount equal to the stated
liquidation amount of, and bearing accrued and unpaid interest equal




35









 







to accumulated and unpaid distributions on, such Securities until such certificates are
presented to the Sponsor or its agent for transfer or reissuance.




     SECTION 7.4. Redemption Procedures.



          (a) Notice of any redemption of, or notice of distribution of ICONs in exchange for, the
Securities (a “Redemption/Distribution Notice”), which notice shall be irrevocable, will be given
by the Trust by mail to each Holder of Securities to be redeemed or exchanged not fewer than 30 nor
more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a
redemption, will be the date fixed for redemption of the ICONs. For purposes of the calculation of
the date of redemption or exchange and the dates on which notices are given pursuant to this
Section 7.4(a), a Redemption/Distribution Notice shall be deemed to be given on the day such notice
is first mailed by first-class mail, postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of Securities at the address of
each such Holder appearing in the register of the Trust. No defect in the Redemption/Distribution
Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of
the redemption or exchange proceedings with respect to any other Holder.




          (b) If fewer than all the outstanding Securities are to be so redeemed, the Common Securities
and the Capital Securities will be redeemed Pro Rata (subject to Section 7.1(b)) and the Capital
Securities to be redeemed will be redeemed as described in Section 7.4(c) below. The particular
Capital Securities to be redeemed will be selected on a Pro Rata basis by the Property Trustee from
the outstanding Capital Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and appropriate. The Trust may
not redeem the Securities in part unless all accumulated and unpaid Distributions to the date of
redemption have been paid in full on all Securities then outstanding. For all purposes of this
Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption
of Capital Securities shall relate, in the case of any Capital Security redeemed or to be redeemed
only in part, to the portion of the aggregate liquidation amount of Capital Securities which has
been or is to be redeemed.




          (c) Subject to the Trust’s fulfillment of the notice requirements set forth in Section 7.4(a)
above, if Securities are to be redeemed, then (i) with respect to Capital Securities represented by
one or more Global Securities, by 12:00 noon, New York City time, on the redemption date, provided
that the ICON Issuer has paid the Property Trustee a sufficient amount of cash in connection with
the related redemption or maturity of the ICONs, the Property Trustee will deposit irrevocably with
the Depositary or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay
the applicable Redemption Price with respect to the Capital Securities and will give the Depositary
irrevocable instructions and authority to pay the Redemption Price to the Holders of the Capital
Securities and (ii) with respect to Securities not represented by one or more Global Securities,
provided that the ICON Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the ICONs, the Property Trustee will give the
Paying Agent irrevocable instructions and authority to pay the relevant Redemption Price to the
Holders of such Securities upon surrender of their certificates evidencing the Capital Securities.
Payment of the Redemption Price on the Capital Securities will be made to the recordholders thereof
as they appear on the




36









 







register of the Trust on the relevant record date, which shall be one Business Day prior to
the relevant redemption date; provided, however, that with respect to the Capital Securities not
represented by one or more Global Securities, the relevant record date shall be the date fifteen
days prior to the relevant redemption date. If any date fixed for redemption of Securities is not
a Business Day, then payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment in respect of any
such delay) with the same force and effect as if made on such date fixed for redemption. If,
however, the Business Day falls in the next calendar year, then payment of the Redemption Price
will be made on the immediately preceding Business Day with the same force and effect as if made on
such date fixed for redemption. If payment of the Redemption Price in respect of any Securities is
not paid because the payment of the Redemption Price on the ICONs is not made, interest will
continue to accrue on the ICONs, and, as a result, Distributions on such Securities will continue
to accumulate at the then applicable rate from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date fixed for redemption for
purposes of calculating the Redemption Price. For these purposes, the applicable Redemption Price
shall not include Distributions which are being paid to Holders who were Holders on a relevant
record date. If a Redemption/Distribution Notice shall have been given and funds deposited or paid
as required, then immediately prior to the close of business on the date of such deposit or
payment, Distributions will cease to accumulate on the Securities called for redemption and all
rights of Holders of such Securities so called for redemption will cease, except the right of the
Holders to receive the Redemption Price, but without interest on such Redemption Price, and from
and after the date fixed for redemption, such Securities will cease to be outstanding.




     Neither the Administrative Trustees nor the Trust shall be required to register or cause to be
registered the transfer of any Securities that have been called for redemption, except in the case
of any Securities being redeemed in part, any portion thereof not to be redeemed.



          (d) Subject to the foregoing and applicable law (including, without limitation, United States
federal securities laws), the ICON Issuer or its subsidiaries may at any time and from time to time
purchase outstanding Capital Securities by tender, in the open market or by private agreement.




     SECTION 7.5. Voting Rights of Capital Securities.



          (a) Except as provided under Section 6.6, Section 11.1 and this Article 7 and as otherwise
required by the Delaware Statutory Trust Act, the Trust Indenture Act and other applicable law, the
Holders of the Capital Securities shall have no voting rights.




          (b) Subject to the requirement of the Property Trustee obtaining a tax opinion in certain
circumstances set forth in Section 7.5(d) below, the Holders of a Majority in Liquidation Amount of
the Capital Securities voting separately as a class have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Property Trustee, or to direct
the exercise of any trust or power conferred upon the Property Trustee under the Trust Agreement,
including the right to direct the Property Trustee, as Holder of the ICONs, to (i) exercise the
remedies available to it under the Indenture as a Holder of the ICONs; (ii) consent to any
amendment or modification of the Indenture or the ICONs where




37









 







such consent shall be required or (iii) waive any past default and its consequences that is
waivable under Section 5.13 of the Indenture; provided, however, that if an Indenture Event of
Default has occurred and is continuing, then the Holders of 25% of the aggregate liquidation amount
of the Capital Securities may direct the Property Trustee to declare the principal of and interest
on the ICONs due and payable; provided, further, that where a consent or action under the Indenture
would require the consent or act of the Holders of more than a majority of the aggregate principal
amount of ICONs affected thereby, only the Holders of the percentage of the aggregate stated
liquidation amount of the Capital Securities which is at least equal to the percentage required
under the Indenture may direct the Property Trustee to give such consent to take such action.




          (c) If the Property Trustee fails to enforce its rights under the ICONs after a Holder of
Capital Securities has made a written request, such Holder of Capital Securities may, to the extent
permitted by applicable law, institute a legal proceeding directly against the ICON Issuer to
enforce the Property Trustee’s rights under the Indenture without first instituting any legal
proceeding against the Property Trustee or any other Person. In addition, if a Trust Enforcement
Event has occurred and is continuing and such event is attributable to the failure of the ICON
Issuer to make any interest, principal or other required payments when due under the Indenture,
then a Holder of Capital Securities may directly institute a Direct Action against the ICON Issuer
on or after the respective due date specified in the ICONs.




          (d) The Property Trustee shall notify all Holders of the Capital Securities of any notice of
any Indenture Event of Default received from the ICON Issuer with respect to the ICONs. Such
notice shall state that such Indenture Event of Default also constitutes a Trust Enforcement Event.
Except with respect to directing the time, method, and place of conducting a proceeding for a
remedy, the Property Trustee shall be under no obligation to take any of the actions described in
clause 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent
tax counsel to the effect that the Trust will not be classified as an association or publicly
traded partnership taxable as a corporation for United States federal income tax purposes as a
result of such action.




          (e) In the event the consent of the Property Trustee, as the Holder of the ICONs, is required
under the Indenture with respect to any amendment or modification of the Indenture, the Property
Trustee shall request the direction of the Holders of the Capital Securities with respect to such
amendment or modification and shall vote with respect to such amendment or modification as directed
by not less than a majority in liquidation amount of the Capital Securities voting together as a
single class; provided, however, that where a consent under the Indenture would require the consent
of the Holders of more than a majority of the aggregate principal amount of the ICONs, the Property
Trustee may only give such consent at the direction of the Holders of at least the same proportion
in aggregate stated liquidation amount of the Securities. The Property Trustee shall not take any
such action in accordance with the directions of the Holders of the Securities unless the Property
Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not be
classified as an association or publicly traded partnership taxable as a corporation for United
States federal income tax purposes as a result of such action.




38









 








          (f) A waiver of an Indenture Event of Default with respect to the ICONs will constitute a
waiver of the corresponding Trust Enforcement Event.




          (g) Any required approval or direction of Holders of Capital Securities may be given at a
separate meeting of Holders of Capital Securities convened for such purpose, at a meeting of all of
the Holders of Securities or pursuant to written consent. The Administrative Trustees will cause a
notice of any meeting at which Holders of Capital Securities are entitled to vote to be mailed to
each Holder of record of Capital Securities. Each such notice will include a statement setting
forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at
such meeting on which such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.




          (h) No vote or consent of the Holders of Capital Securities shall be required for the Trust to
redeem and cancel Capital Securities or distribute ICONs in accordance with this Trust Agreement
and the terms of the Securities.




          (i) Notwithstanding that Holders of Capital Securities are entitled to vote or consent under
any of the circumstances described above, any of the Securities that are owned at such time by the
ICON Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or
under direct or indirect common control with, the ICON Issuer or any Administrative Trustee, shall
not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as
if such Securities were not outstanding; provided, however, that Persons otherwise eligible to vote
to whom the ICON Issuer or any of its subsidiaries have pledged Capital Securities may vote or
consent with respect to such pledged Capital Securities under any of the circumstances described
herein.




          (j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Capital Securities shall have no
rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the
Common Securities Holder.




          (k) If an Indenture Event of Default has occurred and is continuing, the Property Trustee and
the Delaware Trustee may be removed at such time only by a Majority in Liquidation Amount of the
Capital Securities.




          (l) The Trustees shall not revoke any action previously authorized or approved by a vote of
the Holders of the Securities, except by a subsequent vote of the Holders of the Securities.




     SECTION 7.6. Voting Rights of Common Securities.



          (a) Except as provided under Section 6.1(b), this Section 7.6 or Section 11.1 or as otherwise
required by the Delaware Statutory Trust Act, the Trust Indenture Act or other applicable law or
provided by the Trust Agreement, the Holders of the Common Securities will have no voting rights.




          (b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common Securities shall be
entitled, in accordance with Article VI of this Trust Agreement, to vote to appoint, remove or
replace any Trustee or to increase or decrease the number of Trustees.




39









 








          (c) Subject to Section 2.6 and only after all Trust Enforcement Events with respect to the
Capital Securities have been cured, waived, or otherwise eliminated and subject to the requirement
of the Property Trustee obtaining a tax opinion in certain circumstances set forth in this
paragraph (c), the Holders of a Majority in Liquidation Amount of the Common Securities have the
right to direct the time, method and place of conducting any proceeding for any remedy available to
the Property Trustee, or direct the exercise of any trust or power conferred upon the Property
Trustee under this Trust Agreement, including the right to direct the Property Trustee, as Holder
of the ICONs, to (i) exercise the remedies available to it under the Indenture as a Holder of the
ICONs, (ii) consent to any amendment or modification of the Indenture or the ICONs where such
consent shall be required or (iii) waive any past default and its consequences that is waivable
under Section 5.13 of the Indenture; provided, however, that where a consent or action under the
Indenture would require the consent or act of the Holders of more than a majority of the aggregate
principal amount of ICONs affected thereby, only the Holders of the percentage of the aggregate
stated liquidation amount of the Common Securities which is at least equal to the percentage
required under the Indenture may direct the Property Trustee to have such consent or take such
action. Except with respect to directing the time, method, and place of conducting a proceeding
for a remedy, the Property Trustee shall be under no obligation to take any of the actions
described in clause 7.6(c)(i) and (ii) above unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, for United States federal
income tax purposes the Trust will not be classified as other than a grantor trust.




          (d) If the Property Trustee fails to enforce its rights under the ICONs after a Holder of
Common Securities has made a written request, such Holder of Common Securities may, to the extent
permitted by applicable law, directly institute a legal proceeding directly against the ICON Issuer
to enforce the Property Trustee’s rights under the ICONs without first instituting any legal
proceeding against the Property Trustee or any other Person.




          (e) A waiver of an Indenture Event of Default with respect to the ICONs will constitute a
waiver of the corresponding Trust Enforcement Event.




          (f) Any required approval or direction of Holders of Common Securities may be given at a
separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of
the Holders of Securities or pursuant to written consent. The Administrative Trustees will cause a
notice of any meeting at which Holders of Common Securities are entitled to vote to be mailed to
each Holder of record of Common Securities. Each such notice will include a statement setting
forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at
such meeting on which such Holders are entitled to vote and (iii) instructions for the delivery of
proxies.




          (g) No vote or consent of the Holders of the Common Securities will be required for the Trust
to redeem and cancel Common Securities or to distribute ICONs in accordance with the Trust
Agreement and the terms of the Securities.




40









 








     SECTION 7.7. Paying Agent.



     In the event that any Capital Securities are not in book-entry only form, the Trust shall
maintain in the Borough of Manhattan, City of New York, State of New York, an office or agency
where the Capital Securities may be presented for payment (“Paying Agent”). The Trust may appoint
the paying agent and may appoint one or more additional paying agents in such other locations as it
shall determine. The term “Paying Agent” includes any additional paying agent. The Trust may
change any Paying Agent without prior notice to the Holders. The Trust shall notify the Property
Trustee of the name and address of any Paying Agent not a party to this Trust Agreement. If the
Trust fails to appoint or maintain another entity as Paying Agent, the Property Trustee shall act
as such. The Trust or any of its Affiliates may act as Paying Agent. The Property Trustee shall
initially act as Paying Agent for the Securities and the initial office of the Paying Agent shall
be Wilmington Trust Company, c/o Computershare Trust Company of NY, 88 Pine Street, New York, New
York 10005. In the event the Property Trustee shall no longer be the Paying Agent, the
Administrative Trustees shall appoint a successor (which shall be a bank or trust company
acceptable to the ICON Issuer) to act as Paying Agent. The Paying Agent shall be permitted to
resign as Paying Agent upon 30 days’ written notice to the Property Trustee and the ICON Issuer.



     SECTION 7.8. Listing.



     The Sponsor shall use its best efforts to cause the Capital Securities to be listed for
quotation on the New York Stock Exchange.



     SECTION 7.9. Transfer of Securities.



          (a) Securities may only be transferred, in whole or in part, in accordance with the terms and
conditions set forth in this Trust Agreement and in the terms of the Securities. To the fullest
extent permitted by law, any transfer or purported transfer of any Security not made in accordance
with this Trust Agreement shall be null and void.





(b) (i) Subject to this Article 7, Capital Securities shall be freely transferable.




     (ii) The Holder of the Common Securities may not transfer the Common Securities
except (A) in compliance with a consolidation, merger, sale, conveyance or lease of
the Sponsor in compliance with Article VIII of the Indenture or (B) to the Sponsor
or an Affiliate thereof in compliance with applicable law, including the Securities
Act and applicable state securities and blue sky laws. To the fullest extent
permitted by law, any attempted transfer of the Common Securities other than as set
forth in the immediately preceding sentence shall be null and void.



          (c) The Trust shall cause to be kept at the Corporate Trust Office of the Property Trustee a
register (the register maintained in such office being herein sometimes referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may prescribe, the
Trust shall provide for the registration of Capital Securities and of transfers of





41









 







Capital Securities. The Property Trustee is hereby appointed “Security Registrar” for the
purpose of registering Capital Securities and transfers of Capital Securities as herein provided.




          (d) Upon surrender for registration of transfer of any Security at an office or agency of the
Trust designated for such purpose, the Trust shall execute, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new
Securities of any authorized denominations and of a like aggregate principal amount.




          (e) At the option of the Holder, Securities may be exchanged for other Securities of any
authorized denominations and of a like aggregate principal amount, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange,
the Trust shall execute, and in the case of Capital Securities the Property Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.




          (f) Every Security presented or surrendered for registration of transfer or for exchange shall
(if so required by the Trust or the Property Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Trust and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.




          (g) No service charge shall be made for any registration of transfer or exchange of
Securities, but the Trust may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of transfer or exchange
of Securities.




          (h) If the Securities are to be redeemed in part, the Trust shall not be required (A) to
issue, register the transfer of or exchange any Securities during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of any such Securities
selected for redemption under Section 7.4 and ending at the close of business on the day of such
mailing, or (B) to register the transfer or exchange of any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed in part.




     SECTION 7.10. Mutilated, Destroyed, Lost or Stolen Certificates.




If:




     (a) any mutilated Certificates should be surrendered to the Administrative Trustees, or
if the Administrative Trustees shall receive evidence to their satisfaction of the
destruction, loss or theft of any Certificate; and




     (b) there shall be delivered to the Administrative Trustees such security or indemnity
as may be required by them to keep each of the Trustees, the Sponsor and the Trust harmless,


then, in the absence of notice that such Certificate shall have been acquired by a bona fide
purchaser, any Administrative Trustee on behalf of the Trust shall execute and deliver, in




42









 







exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like denomination. In connection with the issuance of any new Certificate under
this Section 7.10, the Administrative Trustees may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership
interest in the relevant Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.




     SECTION 7.11. Deemed Security Holders.



     The Trustees may treat the Person in whose name any Certificate shall be registered on the
register of the Trust as the sole holder of such Certificate and of the Securities represented by
such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of any Person, whether
or not the Trust shall have actual or other notice thereof.



     SECTION 7.12. Global Securities.



     On initial issuance, the Capital Securities shall be issued in definitive form to the Sponsor.
Upon transfer by the Sponsor of the Capital Securities, the Capital Securities may be issued in
the form of one or more Global Securities. If the Capital Securities are to be issued in the form
of one or more Global Securities, then an Administrative Trustee on behalf of the Trust shall
execute and the Property Trustee shall authenticate and deliver one or more Global Securities that
(i) shall represent and shall be denominated in an amount equal to the aggregate liquidation amount
of all of the Capital Securities to be issued in the form of Global Securities and not yet
cancelled, (ii) shall be registered in the name of the Depositary for such Global Security or the
nominee of such Depositary, and (iii) shall be delivered by the Property Trustee to such Depositary
or pursuant to such Depositary’s instructions. Global Securities shall bear a legend substantially
to the following effect:




“This Capital Security is a Global Security within the meaning of the Trust
Agreement hereinafter referred to and is registered in the name of The Depository
Trust Company, a New York corporation (the “Depositary”), or a nominee of the
Depositary. This Capital Security is exchangeable for Capital Securities registered
in the name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Capital
Security (other than a transfer of this Capital Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary) may be registered except in limited
circumstances.




Unless this Capital Security Certificate is presented by an authorized
representative of the Depositary to USB Capital VIII or its agent for registration
of transfer, exchange or payment, and any Capital Security Certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of the Depositary (and any payment hereon is made to



43









 






Cede & Co. or to such other entity as is requested by an authorized representative
of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co.,
has an interest herein.”



     Capital Securities not represented by a Global Security issued in exchange for all or a part
of a Global Security pursuant to this Section 7.12 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Property Trustee. Upon execution and authentication,
the Property Trustee shall deliver such Capital Securities not represented by a Global Security to
the Persons in whose names such definitive Capital Securities are so registered.



     At such time as all interests in Global Securities have been redeemed, repurchased or
cancelled, such Global Securities shall be, upon receipt thereof, cancelled by the Property Trustee
in accordance with standing procedures of the Depositary. At any time prior to such cancellation,
if any interest in Global Securities is exchanged for Capital Securities not represented by a
Global Security, redeemed, cancelled or transferred to a transferee who receives Capital Securities
not represented by a Global Security therefor or any Capital Security not represented by a Global
Security is exchanged or transferred for part of Global Securities, the principal amount of such
Global Securities shall, in accordance with the standing procedures of the Depositary, be reduced
or increased, as the case may be, and an endorsement shall be made on such Global Securities by the
Property Trustee to reflect such reduction or increase.



     The Trust and the Property Trustee may for all purposes, including the making of payments due
on the Capital Securities, deal with the Depositary as the authorized representative of the Holders
for the purposes of exercising the rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to those established by law and
agreements between such owners and depository participants provided, that no such agreement shall
give any rights to any Person against the Trust or the Property Trustee without the written consent
of the parties so affected. Multiple requests and directions from and votes of the Depositary as
holder of Capital Securities in global form with respect to any particular matter shall not be
deemed inconsistent to the extent they do not represent an amount of Capital Securities in excess
of those held in the name of the Depositary or its nominee.



     If at any time the Depositary for any Capital Securities represented by one or more Global
Securities notifies the Trust that it is unwilling or unable to continue as Depositary for such
Capital Securities or if at any time the Depositary for such Capital Securities shall no longer be
eligible under this Section 7.12, the Trust shall appoint a successor Depositary with respect to
such Capital Securities. If a successor Depositary for such Capital Securities is not appointed by
the Trust within 90 days after the Trust receives such notice or becomes aware of such
ineligibility, the Trust’s election that such Capital Securities be represented by one or more
Global Securities shall no longer be effective and the Trust shall execute, and the Property
Trustee will authenticate and deliver, Capital Securities in definitive registered form, in any
authorized denominations, in an aggregate liquidation amount equal to the principal amount of the
Global Security or Capital Securities representing such Capital Securities in exchange for such
Global Security or Capital Securities.



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     The Trust may at any time and in its sole discretion determine that the Capital Securities
issued in the form of one or more Global Securities shall no longer be represented by a Global
Security or Capital Securities. In such event the Trust shall execute, and the Property Trustee,
shall authenticate and deliver, Capital Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount of the Global
Security or Capital Securities representing such Capital Securities, in exchange for such Global
Security or Capital Securities.



     Notwithstanding any other provisions of this Trust Agreement (other than the provisions set
forth in Section 7.9), Global Securities may not be transferred as a whole except by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.



     Interests of beneficial owners in a Global Security may be transferred or exchanged for
Capital Securities not represented by a Global Security and Capital Securities not represented by a
Global Security may be transferred or exchange for Global Securities in accordance with rules of
the Depositary and the provisions of Section 7.9.



ARTICLE 8




DISSOLUTION AND TERMINATION OF TRUST




     SECTION 8.1. Dissolution and Termination of Trust.



          (a) The Trust shall dissolve upon the earliest of:





     (i) the bankruptcy of the Holder of the Common Securities or the Sponsor;




     (ii) the filing of a certificate of dissolution or its equivalent with respect
to the Sponsor or the revocation of the Sponsor’s charter and the expiration of 90
days after the revocation without a reinstatement thereof;




     (iii) the entry of a decree of judicial dissolution of the Sponsor or the
Trust;




     (iv) the time when all of the Securities shall have been called for redemption
and the amounts then due shall have been paid to the Holders in accordance with the
terms of the Securities;




     (v) at the Sponsor’s election by notice and direction to the Property Trustee
to distribute the ICONs to the Holders of the Securities in exchange for all of the
Securities, subject to the receipt of any necessary approvals by the Federal Reserve
that may then be required under the applicable capital guidelines or policies of the
Federal Reserve; provided that the Sponsor will be required to obtain an opinion of
an independent counsel that the distribution of the ICONs



45









 






will not be taxable to the Holders of the Capital Securities for United States
federal income tax purposes; or




     (vi) the time when all of the Administrative Trustees and the Sponsor shall
have consented to dissolution of the Trust provided such action is taken before the
issuance of any Securities.



          (b) As soon as is practicable after the occurrence of an event referred to in Section 8.1(a)
and upon completion of the winding up and liquidation of the Trust, the Trustees shall terminate
the Trust by filing a certificate of cancellation with the Secretary of State of the State of
Delaware.




          (c) The provisions of Section 4.2 and Article 9 shall survive the termination of the Trust.




     SECTION 8.2. Liquidation Distribution Upon Dissolution of the Trust.



          (a) In the event of any voluntary or involuntary liquidation, dissolution, or winding-up of
the Trust (each a “Liquidation”), the Holders of the Securities on the date of the Liquidation will
be entitled to receive, out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of the Trust’s liabilities to creditors, if any, distributions in
cash or other immediately available funds in an amount equal to the aggregate of the stated
liquidation amount of $25.00 per Security plus accumulated and unpaid Distributions thereon to the
date of payment (such amount being the “Liquidation Distribution”), unless, in connection with such
Liquidation, ICONs in an aggregate stated principal amount equal to the aggregate stated
liquidation amount of, with an interest rate identical to the distribution rate of, and accumulated
and unpaid interest equal to accrued and unpaid Distributions on, such Securities shall be
distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities.




          (b) If, upon any such Liquidation, the Liquidation Distribution can be paid only in part
because the Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a
Pro Rata basis. The Holders of the Common Securities will be entitled to receive distributions
upon any such Liquidation Pro Rata with the Holders of the Capital Securities except that if an
Indenture Event of Default has occurred and is continuing, the Capital Securities shall have a
preference over the Common Securities with regard to such distributions as provided for in Section
7.1(b).




46









 








ARTICLE 9




LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE




TRUSTEES OR OTHERS




     SECTION 9.1. Liability.



          (a) Except as expressly set forth in this Trust Agreement, the Guarantee and the terms of the
Securities, the Sponsor:





     (i) shall not be personally liable for the return of any portion of the capital
contributions (or any return thereon) of the Holders of the Securities which shall
be made solely from assets of the Trust; and




     (ii) shall not be required to pay to the Trust or to any Holder of Securities
any deficit upon dissolution of the Trust or otherwise.



          (b) Pursuant to Section 3803(a) of the Delaware Statutory Trust Act, the Holder of the Common
Securities shall be entitled to the same limitation of personal liability extended to stockholders
of private corporations for profit organized under the General Corporation Law of the State of
Delaware; provided, however, the Holders of the Common Securities shall be liable for all of the
debts and obligations of the Trust (other than with respect to the Securities) to the extent not
satisfied out of the Trust’s assets.




          (c) Pursuant to Section 3803(a) of the Delaware Statutory Trust Act, the Holders of the
Capital Securities shall be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General Corporation Law of the
State of Delaware.




     SECTION 9.2. Exculpation.



          (a) No Indemnified Person shall be liable, responsible or accountable in damages or otherwise
to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and
in a manner such Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified
Person’s negligence or willful misconduct with respect to such acts or omissions.




          (b) An Indemnified Person shall be fully protected in relying in good faith upon the records
of the Trust and upon such information, opinions, reports or statements presented to the Trust by
any Person as to matters the Indemnified Person reasonably believes are within such other Person’s
professional or expert competence and who has been selected with reasonable care by or on behalf of
the Trust, including information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses or any other facts




47









 







pertinent to the existence and amount of assets from which Distributions to Holders of
Securities might properly be paid.




     SECTION 9.3. Fiduciary Duty.



          (a) To the extent that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an
Indemnified Person acting under this Trust Agreement shall not be liable to the Trust or to another
Covered Person for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the
Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such
other duties and liabilities of such Indemnified Person.




          (b) Unless otherwise expressly provided herein:





     (i) whenever a conflict of interest exists or arises between any Covered Person
and any Indemnified Person; or




     (ii) whenever this Trust Agreement or any other agreement contemplated herein
or therein provides that an Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the Trust or any Holder of
Securities,


the Indemnified Person shall resolve such conflict of interest, take such action or provide such
terms, considering in each case the relative interest of each party (including its own interest) to
such conflict, agreement, transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the Indemnified Person, the
resolution, action or term so made, taken or provided by the Indemnified Person shall not
constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any
duty or obligation of the Indemnified Person at law or in equity or otherwise.




          (c) Whenever in this Trust Agreement an Indemnified Person is permitted or required to make a
decision:





     (i) in its “discretion” or under a grant of similar authority, the Indemnified
Person shall be entitled to consider such interests and factors as it desires,
including its own interests, and shall have no duty or obligation to give any
consideration to any interest of or factors affecting the Trust or any other Person;
or




     (ii) in its “good faith” or under another express standard, the Indemnified
Person shall act under such express standard and shall not be subject to any other
or different standard imposed by this Trust Agreement or by applicable law.



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     SECTION 9.4. Indemnification.



          (a) The ICON Issuer shall indemnify, to the full extent permitted by law, any ICON Issuer
Indemnified Person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Trust) by reason of the fact that he
is or was an ICON Issuer Indemnified Person against expenses (including attorney fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in connection with
such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Trust, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that the ICON Issuer
Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in
or not opposed to the best interests of the Trust, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.




          (b) The ICON Issuer shall indemnify, to the full extent permitted by law, any ICON Issuer
Indemnified Person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the Trust to procure a judgment in its
favor by reason of the fact that he is or was an ICON Issuer Indemnified Person against expenses
(including attorneys’ fees) actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Trust and except that no such
indemnification shall be made in respect of any claim, issue or matter as to which such ICON Issuer
Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent
that the Court of Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which such Court of Chancery or such other court shall deem proper.




          (c) Any indemnification under paragraphs (a) and (b) of this Section 9.4 (unless ordered by a
court) shall be made by the ICON Issuer only as authorized in the specific case upon a
determination that indemnification of the ICON Issuer Indemnified Person is proper in the
circumstances because he has met the applicable standard of conduct set forth in paragraphs (a) and
(b). Such determination shall be made (1) by the Administrative Trustees by a majority vote of a
quorum consisting of such Administrative Trustees who were not parties to such action, suit or
proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of
disinterested Administrative Trustees so directs, by independent legal counsel in a written
opinion, or (3) by the Common Security Holder of the Trust.




          (d) Expenses (including attorneys’ fees) incurred by an ICON Issuer Indemnified Person in
defending a civil, criminal, administrative or investigative action, suit or proceeding referred to
in paragraphs (a) and (b) of this Section 9.4 shall be paid by the ICON Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an




49









 







undertaking by or on behalf of such ICON Issuer Indemnified Person to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified by the ICON Issuer as
authorized in this Section 9.4. Notwithstanding the foregoing, no advance shall be made by the
ICON Issuer if a determination is reasonably and promptly made (1) by the Administrative Trustees
by a majority vote of a quorum of disinterested Administrative Trustees, (2) if such a quorum is
not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so
directs, by independent legal counsel in a written opinion or (3) the Common Security Holder of the
Trust, that, based upon the facts known to the Administrative Trustees, counsel or the Common
Security Holder at the time such determination is made, such ICON Issuer Indemnified Person acted
in bad faith or in a manner that such person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal proceeding, that such ICON Issuer
Indemnified Person believed or had reasonable cause to believe his conduct was unlawful. In no
event shall any advance be made in instances where the Administrative Trustees, independent legal
counsel or Common Security Holder reasonably determine that such person deliberately breached his
duty to the Trust or its Common or Capital Security Holders.



          (e) The indemnification and advancement of expenses provided by, or granted pursuant to, the
other paragraphs of this Section 9.4 shall not be deemed exclusive of any other rights to which
those seeking indemnification and advancement of expenses may be entitled under any agreement, vote
of stockholders or disinterested directors of the ICON Issuer or Capital Security Holders of the
Trust or otherwise, both as to action in his official capacity and as to action in another capacity
while holding such office. All rights to indemnification under this Section 9.4 shall be deemed to
be provided by a contract between the ICON Issuer and each ICON Issuer Indemnified Person who
serves in such capacity at any time while this Section 9.4 is in effect. Any repeal or
modification of this Section 9.4 shall not affect any rights or obligations then existing.



          (f) The ICON Issuer or the Trust may purchase and maintain insurance on behalf of any person
who is or was an ICON Issuer Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such, whether or not the ICON
Issuer would have the power to indemnify him against such liability under the provisions of this
Section 9.4.



          (g) For purposes of this Section 9.4, references to “the Trust” shall include, in addition to
the resulting or surviving entity, any constituent entity (including any constituent of a
constituent) absorbed in a consolidation or merger, so that any person who is or was a director,
trustee, officer or employee of such constituent entity, or is or was serving at the request of
such constituent entity as a director, trustee, officer, employee or agent of another entity, shall
stand in the same position under the provisions of this Section 9.4 with respect to the resulting
or surviving entity as he would have with respect to such constituent entity if its separate
existence had continued.



          (h) The indemnification and advancement of expenses provided by, or granted pursuant to, this
Section 9.4 shall, unless otherwise provided when authorized or ratified, continue as to a person
who has ceased to be an ICON Issuer Indemnified Person and shall inure to the benefit of the heirs,
executors and administrators of such a person. The obligation to




50









 







indemnify as set forth in this Section 9.4 shall survive the resignation or removal of the
Delaware Trustee or the Property Trustee or the termination of this Trust Agreement.




     SECTION 9.5. Outside Businesses.



     Subject to the provisions of Section 6.3, any Covered Person, the Sponsor, the Delaware
Trustee and the Property Trustee may engage in or possess an interest in other business ventures of
any nature or description, independently or with others, similar or dissimilar to the activities of
the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of this Trust
Agreement in and to such independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the activities of the Trust, shall not be
deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware Trustee or the Property
Trustee shall be obligated to present any particular investment or other opportunity to the Trust
even if such opportunity is of a character that, if presented to the Trust, could be taken by the
Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any Covered Person, the
Delaware Trustee and the Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other obligations of the
Sponsor or its Affiliates.



ARTICLE 10




ACCOUNTING




     SECTION 10.1. Fiscal Year.



     The fiscal year (“Fiscal Year”) of the Trust shall be the calendar year, or such other year as
is required by the Code.



     SECTION 10.2. Certain Accounting Matters.



          (a) At all times during the existence of the Trust, the Administrative Trustees shall keep, or
cause to be kept, full books of account, records and supporting documents, which shall reflect in
reasonable detail, each transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for United States
federal income tax purposes. The books of account and the records of the Trust shall be examined
by and reported upon as of the end of each Fiscal Year of the Trust by a firm of independent
certified public accountants selected by the Administrative Trustees.




          (b) The Administrative Trustees shall cause to be prepared and delivered to each of the
Holders of Securities, within 90 days after the end of each Fiscal Year of the Trust, annual
financial statements of the Trust, including a balance sheet of the Trust as of the end of such
Fiscal Year, and the related statements of income or loss.




51









 








          (c) The Administrative Trustees shall cause to be duly prepared and delivered to each of the
Holders of Securities, an annual United States federal income tax information statement, required
by the Code, containing such information with regard to the Securities held by each Holder as is
required by the Code and the Treasury Regulations. Notwithstanding any right under the Code to
deliver any such statement at a later date, the Administrative Trustees shall endeavor to deliver
all such statements within 30 days after the end of each Fiscal Year of the Trust.




          (d) The Administrative Trustees shall cause to be duly prepared and filed with the appropriate
taxing authority, an annual United States federal income tax return, on a Form 1041 or such other
form required by United States federal income tax law, and any other annual income tax returns
required to be filed by the Administrative Trustees on behalf of the Trust with any state or local
taxing authority.




     SECTION 10.3. Banking.



     The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the
Trust; provided, however, that all payments of funds in respect of the ICONs held by the Property
Trustee shall be made directly to the Property Account and no other funds of the Trust shall be
deposited in the Property Account. The sole signatories for such accounts shall be designated by
the Administrative Trustees; provided, however, that the Property Trustee shall designate the
signatories for the Property Account.



     SECTION 10.4. Withholding.



     The Trust and the Administrative Trustees shall comply with all withholding requirements under
United States federal, state and local law. The Trust shall request, and the Holders shall provide
to the Trust, such forms or certificates as are necessary to establish an exemption from
withholding with respect to each Holder, and any representations and forms as shall reasonably be
requested by the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Administrative Trustees shall file required forms with applicable
jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall
remit amounts withheld with respect to the Holder to applicable jurisdictions. To the extent that
the Trust is required to withhold and pay over any amounts to any authority with respect to
distributions or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any claimed over
withholding, Holders shall be limited to an action against the applicable jurisdiction. If the
amount required to be withheld was not withheld from actual Distributions made, the Trust may
reduce subsequent Distributions by the amount of such withholding.



52









 





ARTICLE 11




AMENDMENTS AND MEETINGS




     SECTION 11.1. Amendments.



          (a) Except as otherwise provided in this Trust Agreement or by any applicable terms of the
Securities, this Trust Agreement may only be amended by a written instrument approved and executed
by the Sponsor and (i) the Administrative Trustees (or, if there are more than two Administrative
Trustees, a majority of the Administrative Trustees) and (ii) the Property Trustee if the amendment
affects the rights, powers, duties, obligations or immunities of the Property Trustee; and (iii)
the Delaware Trustee if the amendment affects the rights, powers, duties, obligations or immunities
of the Delaware Trustee.




          (b) No amendment shall be made, and any such purported amendment shall be void and
ineffective:





     (i) unless, in the case of any proposed amendment, the Property Trustee shall
have first received an Officers’ Certificate from each of the Trust and the Sponsor
that such amendment is permitted by, and conforms to, the terms of this Trust
Agreement (including the terms of the Securities);




     (ii) unless, in the case of any proposed amendment which affects the rights,
powers, duties, obligations or immunities of the Property Trustee, the Property
Trustee shall have first received:




	 	a.	 	an Officers’ Certificate from
each of the Trust and the Sponsor that such amendment is
permitted by, and conforms to, the terms of this Trust Agreement
(including the terms of the Securities) and that all conditions
precedent to the execution and delivery of such amendment have
been satisfied; and
	 
	 	b.	 	an opinion of counsel (who may be
counsel to the Sponsor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this Trust Agreement
(including the terms of the Securities) and that all conditions
precedent to the execution and delivery of such amendment have
been satisfied; and






     (iii) to the extent the result of such amendment would be to:




	 	a.	 	cause the Trust to be classified
as other than a grantor trust for United States federal income
tax purposes;
	 
	 	b.	 	reduce or otherwise adversely
affect the powers of the Property Trustee in contravention of
the Trust Indenture Act; or




53









 






	 	c.	 	cause the Trust to be deemed to
be an Investment Company required to be registered under the
Investment Company Act.





          (c) If the Trust has issued any Securities that remain outstanding:





     (i) any amendment that would (a) change the amount or timing of any
distribution of the Securities or otherwise adversely affect the amount of any
distribution required to be made in respect of the Securities as of a specified date
or (b) restrict the right of a Holder of Securities to institute suit for the
enforcement of any such payment on or after such date, will entitle the Holders of
such Securities, voting together as a single class, to vote on such amendment or
proposal and such amendment or proposal shall not be effective except with the
approval of each of the Holders of the Securities affected thereby; and




     (ii) Except as provided in Section 11.1(c)(i) hereof, any provision of this
Trust Agreement may be amended by the Trustee and the Sponsor with (i) the consent
of the Holders representing not less than a Majority in Liquidation Amount of the
Securities outstanding and (ii) receipt by the Trustees of an opinion of counsel to
the effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust’s status as a grantor
trust for United States federal income tax purposes or the Trust’s exemption from
status of an Investment Company.



          (d) This Section 11.1 shall not be amended without the consent of all of the Holders of the
Securities.




          (e) Article 4 shall not be amended without the consent of the Holders of a Majority in
Liquidation Amount of the Common Securities.




          (f) The rights of the Holders of the Common Securities under Article 5 to increase or decrease
the number of, and appoint and remove Trustees shall not be amended without the consent of the
Holders of a Majority in Liquidation Amount of the Common Securities.




          (g) Notwithstanding Section 11.1(c), this Trust Agreement may be amended without the consent
of the Holders of the Securities, if such amendment does not adversely affect in any material
respect the rights of the holders of the Securities, to:





     (i) cure any ambiguity;




     (ii) correct or supplement any provision in this Trust Agreement that may be
defective or inconsistent with any other provision of this Trust Agreement;




     (iii) add to the covenants, restrictions or obligations of the Sponsor;



54









 






     (iv) to conform to any change in Rule 3a-5 of the Investment Company Act or
written change in interpretation or application of Rule 3a-5 of the Investment
Company Act by any legislative body, court, government agency or regulatory
authority; or




     (v) to modify, eliminate and add to any provision of this Trust Agreement to
ensure that the Trust will be classified as a grantor trust for United States
federal income tax purposes at all times that any Securities are outstanding or to
ensure that the Trust will not be required to register as an Investment Company
under the Investment Company Act.



     SECTION 11.2. Meetings of the Holders of Securities; Action by Written Consent.



          (a) Meetings of the Holders of any class of Securities may be called at any time by the
Administrative Trustees (or as provided in the terms of the Securities) to consider and act on any
matter on which Holders of such class of Securities are entitled to act under the terms of this
Trust Agreement, the terms of the Securities or the rules of any stock exchange on which the
Capital Securities are listed or admitted for trading. The Administrative Trustees shall call a
meeting of the Holders of such class if directed to do so by the Holders of at least 10% in
Liquidation Amount of such class of Securities. Such direction shall be given by delivering to the
Administrative Trustees one or more calls in a writing stating that the signing Holders of
Securities wish to call a meeting and indicating the general or specific purpose for which the
meeting is to be called. Any Holders of Securities calling a meeting shall specify in writing the
Certificates held by the Holders of Securities exercising the right to call a meeting and only
those Securities specified shall be counted for purposes of determining whether the required
percentage set forth in the second sentence of this paragraph has been met.




          (b) Except to the extent otherwise provided in the terms of the Securities, the following
provisions shall apply to meetings of Holders of Securities:





     (i) notice of any such meeting shall be given to all the Holders of Securities
having a right to vote thereat at least 7 days and not more than 60 days before the
date of such meeting. Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Trust Agreement or the rules of any
stock exchange on which the Capital Securities are listed or admitted for trading,
such vote, consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of Securities
may be taken without a meeting and without prior notice if a consent in writing
setting forth the action so taken is signed by the Holders of Securities owning not
less than the minimum amount of Securities in liquidation amount that would be
necessary to authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting. Prompt notice of
the taking of action without a meeting shall be given to the Holders of Securities
entitled to vote who have not consented in writing. The Administrative Trustees may
specify that any written ballot submitted to the Security Holders for the purpose of
taking any action without a meeting shall be returned to the Trust within the time
specified by the Administrative Trustees;



55









 






     (ii) each Holder of a Security may authorize any Person to act for it by proxy
on all matters in which a Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a meeting. No proxy
shall be valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of
the Holder of Securities executing such proxy. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall be governed
by the General Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware corporation and
the Holders of the Securities were stockholders of a Delaware corporation;




     (iii) each meeting of the Holders of the Securities shall be conducted by the
Administrative Trustees or by such other Person that the Administrative Trustees may
designate; and




     (iv) unless the Delaware Statutory Trust Act, this Trust Agreement, the terms
of the Securities, the Trust Indenture Act or the listing rules of any stock
exchange on which the Capital Securities are then listed for trading, otherwise
provides, the Administrative Trustees, in their sole discretion, shall establish all
other provisions relating to meetings of Holders of Securities, including notice of
the time, place or purpose of any meeting at which any matter is to be voted on by
any Holders of Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting in person
or by proxy or any other matter with respect to the exercise of any such right to
vote.



ARTICLE 12




REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE




     SECTION 12.1. Representations and Warranties of the Property Trustee.



     The Trustee that acts as initial Property Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Trust Agreement, and each Successor Property Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Property Trustee’s acceptance of
its appointment as Property Trustee that:




     (a) the Property Trustee is a company duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or organization, with trust
power and authority to execute and deliver, and to carry out and perform its obligations
under the terms of, this Trust Agreement;




     (b) the Property Trustee satisfies the requirements set forth in Section 6.3(a);




     (c) the execution, delivery and performance by the Property Trustee of this Trust
Agreement have been duly authorized by all necessary corporate action on the part



56









 






of the Property Trustee. This Trust Agreement has been duly executed and delivered by
the Property Trustee, and it constitutes a legal, valid and binding obligation of the
Property Trustee, enforceable against it in accordance with its terms, subject to applicable
bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting
creditors’ rights generally and to general principles of equity and the discretion of the
court (regardless of whether the enforcement of such remedies is considered in a proceeding
in equity or at law);




     (d) the execution, delivery and performance of this Trust Agreement by the Property
Trustee do not conflict with or constitute a breach of the articles of association or
incorporation, as the case may be, or the by-laws (or other similar organizational
documents) of the Property Trustee; and




     (e) no consent, approval or authorization of, or registration with or notice to, any
Delaware or federal banking authority is required for the execution, delivery or performance
by the Property Trustee of this Trust Agreement.



     SECTION 12.2. Representations and Warranties of the Delaware Trustee.



     The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust and to
the Sponsor at the date of this Trust Agreement, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee’s acceptance of
its appointment as Delaware Trustee that:




     (a) the Delaware Trustee satisfies the requirements set forth in Section 6.2, satisfies
Trust Section 3807(a) of the Delaware Statutory Trust Act and has the power and authority to
execute and deliver, and to carry out and perform its obligations under the terms of, this
Trust Agreement and, if it is not a natural person, is duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation or organization;




     (b) the Delaware Trustee has been authorized to perform its obligations under the
Certificate of Trust and this Trust Agreement. This Trust Agreement under Delaware law
constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy, reorganization,
moratorium, insolvency and other similar laws affecting creditors’ rights generally and to
general principles of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at law); and




     (c) no consent, approval or authorization of, or registration with or notice to, any
Delaware or federal banking authority is required for the execution, delivery or performance
by the Delaware Trustee of this Trust Agreement.



57









 





ARTICLE 13




MISCELLANEOUS




     SECTION 13.1. Notices.



     All notices provided for in this Trust Agreement shall be in writing, duly signed by the party
giving such notice, and shall be delivered, telecopied or mailed by registered or certified mail,
as follows:



          (a) if given to the Trust, in care of the Administrative Trustees at the Trust’s mailing
address set forth below (or such other address as the Trust may give notice of to the Property
Trustee, the Delaware Trustee and the Holders of the Securities):



c/o U.S. Bancorp

800 Nicollet Mall

Minneapolis, Minnesota 55402

Attention: Treasury Department

Facsimile No: (612) 303-1338




          (b) if given to the Delaware Trustee, at the mailing address set forth below (or such other
address as the Delaware Trustee may give notice of to the Administrative Trustees, the Property
Trustee and the Holders of the Securities):



Wilmington Trust Company

1100 North Market Street

Wilmington, Delaware 19890

Attention: Corporate Trust Administration

Facsimile No.: (302) 636-4145




          (c) if given to the Property Trustee, at its Corporate Trust Office (or such other address as
the Property Trustee may give notice of to the Administrative Trustees, the Delaware Trustee and
the Holders of the Securities).




          (d) if given to the Holder of the Common Securities, at the mailing address of the Sponsor set
forth below (or such other address as the Holder of the Common Securities may give notice of to the
Property Trustee, the Delaware Trustee and the Trust):



c/o U.S. Bancorp

800 Nicollet Mall

Minneapolis, Minnesota 55402

Attention: Treasury Department

Facsimile No.: (612) 303-1338




          (e) if given to any other Holder, at the address set forth on the register of the Trust.




58









 







All such notices shall be deemed to have been given when received in person, telecopied with
receipt confirmed or mailed by first class mail, postage prepaid except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.




     SECTION 13.2. Governing Law.



     This Trust Agreement and the Securities and the rights of the parties hereunder and thereunder
shall be governed by and interpreted in accordance with the laws of the State of Delaware.



     SECTION 13.3. Intention of the Parties.



     It is the intention of the parties hereto that the Trust be classified for United States
federal income tax purposes as a grantor trust. The provisions of this Trust Agreement shall be
interpreted in a manner consistent with such classification.



     SECTION 13.4. Headings.



     Headings contained in this Trust Agreement are inserted for convenience of reference only and
do not affect the interpretation of this Trust Agreement or any provision hereof.



     SECTION 13.5. Successors and Assigns.



     Whenever in this Trust Agreement any of the parties hereto is named or referred to, the
successors and assigns of such party shall be deemed to be included, and all covenants and
agreements in this Trust Agreement by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed.



     SECTION 13.6. Partial Enforceability.



     If any provision of this Trust Agreement, or the application of such provision to any Person or
circumstance, shall be held invalid, the remainder of this Trust Agreement, or the application of
such provision to persons or circumstances other than those to which it is held invalid, shall not
be affected thereby.



     SECTION 13.7. Counterparts.



     This Trust Agreement may contain more than one counterpart of the signature page and this
Trust Agreement may be executed by the affixing of the signature of each of the Trustees to one of
such counterpart signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers had signed a single
signature page.



[The remainder of this page left blank intentionally; The signature page follows.]




59









 








          IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day
and year first above written.



	 	 	 	 	 	 	 
	 	 	U.S. BANCORP,	 	 
	 	 	as Sponsor, as Common Securities Holder and as
ICON Issuer	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ Daryl N. Bible	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Daryl N. Bible


Title: Executive Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,	 	 
	 	 	as Property Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ Denise M. Geran	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Denise M. Geran


Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,	 	 
	 	 	as Delaware Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 /s/ Denise M. Geran	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name: Denise M. Geran	 	 
	 

	 	 	 	Title: Vice President	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ David M. Moffett
	 	 
	 	 	 	 	 
	 	 	DAVID M. MOFFETT,	 	 
	 	 	as Administrative Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Daryl N. Bible
	 	 
	 	 	 	 	 
	 	 	DARYL N. BIBLE,	 	 
	 	 	    as Administrative Trustee	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Lee R. Mitau
	 	 
	 	 	 	 	 
	 	 	LEE R. MITAU,	 	 
	 	 	    as Administrative Trustee	 	 






60









 






EXHIBIT A




     [IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT THE FOLLOWING: This
Capital Security is a Global Security within the meaning of the Trust Agreement hereinafter
referred to and is registered in the name of The Depository Trust Company, a New York corporation
(the “Depositary”), or a nominee of the Depositary. This Capital Security is exchangeable for
Capital Securities registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Trust Agreement and no transfer of this Capital
Security (other than a transfer of this Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary) may be registered except in limited circumstances.



     Unless this Capital Security Certificate is presented by an authorized representative of the
Depositary to the issuer or its agent for registration of transfer, exchange or payment, and any
Capital Security Certificate issued is registered in the name of Cede & Co. or such other name as
registered by an authorized representative of the Depositary (and any payment hereon is made to
Cede & Co. or to such other entity as is requested by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]


Certificate No.                                      Number of Capital Securities:                     




CUSIP No.                     




Certificate Evidencing 6.35% Trust Preferred Securities

of

USB Capital VIII




6.35% Trust Preferred Securities

Fully and Unconditionally

Guaranteed by U.S. Bancorp




     USB CAPITAL VIII, a statutory trust created under the laws of the State of Delaware (the
“Trust”), hereby certifies that ___(the “Holder”) is the registered owner of ___
capital securities of the Trust representing undivided beneficial ownership interests in the assets
of the Trust designated the “6.35% Trust Preferred Securities” (the “Capital Securities”). The
Capital Securities are transferable on the register 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 the Trust Agreement (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Capital Securities represented
hereby are issued and shall in all respects be subject to the provisions of the Second Amended and
Restated Trust Agreement of the Trust, dated as of December 29, 2005, as the same may be amended
from time to time (the “Trust Agreement”), by and among U.S.



A-1









 





BANCORP, DAVID M. MOFFETT, DARYL N. BIBLE and LEE R. MITAU, as Administrative Trustees,
WILMINGTON TRUST COMPANY, as Property Trustee, and WILMINGTON TRUST COMPANY, as Delaware Trustee,
and the holders of undivided beneficial ownership interests in the assets of the Trust.
Capitalized terms used herein but not defined shall have the meaning given them in the Trust
Agreement. The Holder is entitled to the benefits of the Guarantee to the extent described
therein. The Sponsor will provide a copy of the Trust Agreement, the Guarantee and the Indenture
to a Holder without charge upon written request to the Sponsor at its principal place of business.




     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereunder.



     By acceptance, the Holder agrees to treat, for United States federal, state and local income
tax purposes, the ICONs as indebtedness and the Capital Securities as evidence of undivided
beneficial ownership interests in the ICONs.



     IN WITNESS WHEREOF, the Trust has executed this certificate this ___day of [ ], 2005.



	 	 	 	 	 	 	 
	 	 	USB CAPITAL VIII	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: Administrative Trustee	 	 






     This is one of the Capital Securities referred to in the within-mentioned Trust Agreement.



	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,	 	 
	 	 	    as Property Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Authorized Officer	 	 






A-2









 






EXHIBIT B




TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET

FORTH IN THE TRUST AGREEMENT

REFERRED TO BELOW.




			
	 	 	 
	Certificate No.                     
	 	Number of Common Securities:                     






Certificate Evidencing Common Securities

of

USB Capital VIII




6.35% Common Securities




     USB CAPITAL VIII, a statutory trust created under the laws of the State of Delaware (the
“Trust”), hereby certifies that U.S. BANCORP (the “Holder”) is the registered owner of common
securities of the Trust representing an undivided beneficial ownership interest in the assets of
the Trust designated the “6.35% Common Securities” (the “Common Securities”). The Common
Securities are not transferable and any attempted transfer thereof shall be void except as
permitted by applicable law and by Section 7.9(b)(ii) of the Trust Agreement (as defined below).
The designation, rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities represented hereby are issued and shall in all respects be subject to the
provisions of the Second Amended and Restated Trust Agreement of the Trust, dated as of December
29, 2005 (as the same may be amended from time to time, the “Trust Agreement”), by and among U.S.
Bancorp, as Sponsor, DAVID M. MOFFETT, DARYL N. BIBLE AND LEE R. MITAU, as Administrative Trustees,
WILMINGTON TRUST COMPANY, as Property Trustee, and WILMINGTON TRUST COMPANY, as Delaware Trustee,
and the holders of undivided beneficial ownership interests in the assets of the Trust. The Holder
is entitled to the benefits of the Guarantee to the extent described therein. Capitalized terms
used herein but not defined shall have the meaning given them in the Trust Agreement. The Sponsor
will provide a copy of the Trust Agreement, the Guarantee and the Indenture to the Holder without
charge upon written request to the Sponsor at its principal place of business.



     Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereunder.



     By acceptance, the Holder agrees to treat, for United States federal, state and local income
tax purposes, the ICONs as indebtedness and the Common Securities as evidence of an undivided
indirect beneficial ownership interest in the ICONs.



B-1









 





          IN WITNESS WHEREOF, the Trust has executed this certificate this ___day of
___, 2005.



	 	 	 	 	 	 	 
	 	 	USB CAPITAL VIII	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: Administrative Trustee	 	 







B-2