exv4w4



 





Exhibit 4.4




FIRST AMENDED AND RESTATED TRUST AGREEMENT




          This FIRST AMENDED AND RESTATED TRUST AGREEMENT (this “Trust Agreement”), dated as of December
23, 2005 is entered into by and among (i) U.S. Bancorp, a Delaware corporation (the “Depositor”),
(ii) Wilmington Trust Company, a Delaware banking corporation, as trustee of the Trust (the
“Replacement Trustee”), and (iii) David M. Moffett, Daryl N. Bible and Lee R. Mitau, each an
individual employed by the Depositor, as administrative trustees of the Trust (each of such
trustees in (iii), an “Administrative Trustee” and collectively with the Replacement Trustee, the
“Trustees”).




RECITALS




          WHEREAS, the Depositor 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 28, 2005 (the “Original Trust Agreement”), among the
Depositor, the Administrative Trustees and Delaware Trust Company, National Association, as trustee
(the “Prior Trustee”), and a Certificate of Trust (the “Certificate of Trust”) filed with the
Secretary of State of the State of Delaware on April 28, 2005;




          WHEREAS, the Prior Trustee was removed and replaced by the Depositor with the Replacement
Trustee; and




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




          NOW, THEREFORE, the Depositor and the Trustees hereby agree as follows:




     1. The Trust created hereby shall be known as “USB Capital VIII”, in which name the Trustees,
or the Depositor to the extent provided herein, may conduct the business of the Trust, make and
execute contracts, and sue and be sued.



     2. The Depositor has assigned, transferred, conveyed and set over to the Trustees, the sum of
$10. The Trustees hereby acknowledge receipt of such amount in trust from the Depositor, which
amount shall constitute the initial trust estate. The Trustees hereby declare that they will hold
the trust estate in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a statutory trust under Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. Section 3801 et seq. (the “Delaware Statutory Trust Act”), and that this document
constitute the governing instrument of the Trust. The Trustees hereby are authorized and directed
to execute and file a restated certificate of trust with the Secretary of the State of Delaware in
accordance with the provisions of the Delaware Statutory Trust Act.



     3. The Depositor and the Trustees will enter into an Amended and Restated Trust Agreement,
satisfactory to each such party and substantially in the form included as an exhibit to the 1933
Act Registration Statement referred to below, to provide for the contemplated operation of the
Trust created hereby and the issuance of the Capital Securities and the Common Securities referred
to therein. Prior to the execution and delivery of such Amended and Restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect to the



 









 




trust estate, except as otherwise required by applicable law or as may be necessary to obtain prior
to such execution and delivery any licenses, consents or approvals required by applicable law or
otherwise.




     4. The Administrative Trustee and the Prior Trustee heretofore authorized and directed the
Depositor, as an agent of the Trust (i) to file with the Securities and Exchange Commission (the
“Commission”) and execute, in each case on behalf of the Trust, (a) a Registration Statement on
Form S-3 (Registration No. 333-124535) (the “1933 Act Registration Statement”), which was declared
effective by the Securities and Exchange Commission on May 12, 2005, relating to the registration
under the Securities Act of 1933, as amended, of the Capital Securities of the Trust and certain
other securities and (b) a Registration Statement on Form 8-A (the “1934 Act Registration
Statement”) relating to the registration of the Capital Securities of the Trust under Section 12(b)
of the Securities Exchange Act of 1934, as amended, which was declared effective by the Securities
and Exchange Commission on May 12, 2005; (ii) to file with the New York Stock Exchange (the
“Exchange”) and execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary or desirable to
cause the Capital Securities to be listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents, appointments of attorney
for service of process and other papers and documents as shall be necessary or desirable to
register the Capital Securities under the securities or blue sky laws of such jurisdictions as the
Depositor, on behalf of the Trust, may deem necessary or desirable; (iv) to execute and deliver
letters or documents to, or instruments for filing with, a depository relating to the Capital
Securities of the Trust, and (v) to execute on behalf of the Trust an underwriting agreement
relating to the Capital Securities, among the Trust, the Depositor and the several underwriters
named therein, substantially in the form included as an exhibit to the 1933 Act Registration
Statement.



     5. This Trust Agreement may be executed in one or more counterparts.



     6. The number of Trustees initially shall be four (4) and thereafter the number of the
Trustees shall be such number as shall be fixed from time to time by a written instrument signed by
the Depositor which may increase or decrease the number of Trustees; provided, however, that to the
extent required by the Delaware Statutory Trust Act, one Trustee shall be either a natural person
who is a resident of the State of Delaware, or, 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 Delaware law. Subject to the foregoing, the Depositor is entitled to appoint or remove
without cause any Trustee at any time. The Trustees may resign upon thirty days’ prior written
notice to the Depositor.



     7. This Trust Agreement shall be governed by, and construed in accordance with, the laws of
the State of Delaware (without regard to conflict of laws principles).



     8. (a) The Trustees and their officers, directors, agents and servants (collectively, the
“Fiduciary Indemnified Persons”) shall not be liable, responsible or accountable in damages or
otherwise to the Trust, the Depositor, the Trustees or any holder of the Trust securities (the
Trust, the Depositor and any holder of the Trust Securities being a “Covered Person”) for any



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loss, damage or claim incurred by reason of any act or omission performed or omitted by the
Fiduciary Indemnified Persons in good faith on behalf of the Trust and in a manner the Fiduciary
Indemnified Persons reasonably believed to be within the scope of authority conferred on the
Fiduciary Indemnified Persons by this Trust Agreement or by law, except that the Fiduciary
Indemnified Persons shall be liable for any such loss, damage or claim incurred by reason of the
Fiduciary Indemnified Person’s gross negligence or willful misconduct with respect to such acts or
omissions.




          (b) The Fiduciary Indemnified Persons 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 Fiduciary Indemnified Persons 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 pertinent to the existence and amount of assets from which distributions to holders of Trust
Securities might properly be paid.




          (c) The Depositor agrees, to the fullest extent permitted by applicable law, (i) to
indemnify and hold harmless each Fiduciary Indemnified Person from and against any loss, damage,
liability, tax, penalty, expense or claim of any kind or nature whatsoever incurred by or asserted
against the Fiduciary Indemnified Persons by reason of the creation, operation or termination of
the Trust or the transactions contemplated by this Trust Agreement, except that no Fiduciary
Indemnified Person shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by the Fiduciary Indemnified Persons by reason of gross negligence or willful misconduct
with respect to such acts or omissions, and (ii) to advance expenses (including legal fees)
incurred by a Fiduciary Indemnified Person in defending any claim, demand, action, suit or
proceeding shall, from time to time, prior to the final disposition of such claim, demand, action,
suit or proceeding, upon receipt by the Trust of an undertaking by or on behalf of such Fiduciary
Indemnified Persons to repay such amount if it shall be determined that such Fiduciary Indemnified
Person is not entitled to be indemnified as authorized in the preceding subsection.




          (d) The provisions of this Section shall survive the termination of this Trust Agreement or
the earlier resignation or removal of the Fiduciary Indemnified Persons.




          (e) The rights of the Prior Trustee and its officers, directors, agents and servants
pursuant to the provisions of Section 8 of the Original Trust Agreement shall survive the
execution, delivery and termination of this Trust Agreement.




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




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     IN WITNESS THEREOF, the parties hereto have caused this Trust Agreement to be duly executed as
of the day and year first above written.



	 	 	 	 	 	 	 	 	 
	 	 	WILMINGTON TRUST COMPANY,

as Trustee	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Denise M. Geran	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Denise M. Geran	 	 
	 	 	Title:	 	Vice President	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	U.S. BANCORP, as Depositor	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	By:
	 	 	 	/s/ Daryl N. Bible	 	 
	 	 	 	 	 	 	 
	 	 	Name:	 	Daryl N. Bible	 	 
	 	 	Title:	 	Executive Vice President and Treasurer	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	/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