exv4w11w1






Exhibit 4.11.1




 


Amendment No. 1 to Amended and Restated Trust Agreement




Dated as of [•], 2010



 




 









 





     This Amendment No. 1 to Amended and Restated Trust Agreement, dated as of [•], 2010
(this “Amendment”), is entered into among (i) U.S. Bancorp, a Delaware corporation
(including any successors or assigns, the “Depositor”) and (ii) Andrew Cecere, an individual,
Kenneth D. Nelson, an individual, and Lee R. Mitau, an individual, each of whose address is c/o
U.S. Bancorp, 800 Nicollet Mall, Minneapolis Minnesota 55402 (each, an “Administrative Trustee,”
and collectively, the “Administrative Trustees”) pursuant to Section 12.2(b) of the Amended and
Restated Trust Agreement, dated March 17, 2006, of USB Capital IX.



Recital of the Depositor 




     The Issuer Trustees have heretofore duly declared and established a statutory trust (the
“Issuer Trust”), pursuant to the Delaware Statutory Trust Act by entering into that certain Trust
Agreement, dated April 27, 2005 (the “Original Trust Agreement”), as amended and restated by that
certain Amended and Restated Trust Agreement, dated March 17, 2006 (the Original Trust Agreement,
as so amended and restated, the “Trust Agreement”), and by the execution and filing with the
Secretary of State of the State of Delaware of a Restated Certificate of Trust, filed on January
18, 2006, attached to the Trust Agreement as Exhibit A (the “Certificate of Trust”).



     Pursuant to certain Notices of Removal of Administrative Trustees and Appointment of
Replacements, each dated as of December 4, 2009, Daryl N. Bible and David M. Moffett (the “Removed
Administrative Trustees”) were removed from the position of Administrative Trustees of the Trust
and Kenneth D. Nelson and Andrew Cecere were appointed to succeed the Removed Administrative
Trustees and such appointment was thereby accepted as of the date thereof.



     The Administrative Trustees, the Depositor (as the Holder of all of the Common Securities) and
Holders representing a Majority in Liquidation Amount of the Outstanding Trust Preferred Securities
of each Affected Class have affirmatively consented to this Amendment in accordance with Section
12.2(b) of the Trust Agreement and the Issuer Trustees have received and accepted the Opinion of
Counsel contemplated thereby.



     NOW, THEREFORE, this Amendment witnesseth: For and in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Trust Agreement is hereby amended as follows:



ARTICLE I




Defined Terms



     Section 1.1 Definitions. Capitalized terms used in this Amendment and not otherwise defined
shall have the respective meanings assigned thereto in the Trust Agreement.



ARTICLE II




Amendments to the Trust Agreement



     Section 2.1 Amendment of Section 1.1 of the Trust Agreement. Section 1.1 of the Trust
Agreement is hereby amended as follows:



     (a) The following definition of “Amended and Restated Stock Purchase Contract Agreement” is
added:




     ““Amended and Restated Stock Purchase Contract Agreement” means the Amended and
Restated Stock Purchase Contract Agreement, dated as of [ • ], 2010, between the
Depositor



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and the Property Trustee (acting on behalf of the Issuer Trust), as the same may be
amended from time to time.”



     (b) The following definition of “Amended and Restated Collateral Agreement” is added:




     ““Amended and Restated Collateral Agreement” means the Amended and Restated
Collateral Agreement, dated as of [ • ], 2010, among the Depositor, the Collateral
Agent, the Custodial Agent, the Securities Intermediary, the Issuer Trust (acting through
the Property Trustee) and the Securities Registrar for the ITS, as amended from time to
time.”



     (c) The current definition of “Corresponding Assets” is deleted in its entirety and replaced
with the following:




     ““Corresponding Assets” means, with respect to each $1,000 Liquidation Amount of
Trust Securities:




     (a) in the case of Normal ITS and Common Securities, (i) from the Time of
Delivery to but not including the Remarketing Settlement Date for a Successful
Remarketing, $1,000 principal amount of Pledged Notes and a Pro Rata Interest in a
Stock Purchase Contract, (ii) from and including the Remarketing Settlement Date
for a Successful Remarketing to but not including the Stock Purchase Date, the U.S.
Bank Deposit made with the net proceeds of each $1,000 principal amount of Pledged
Notes sold in such Successful Remarketing on such Remarketing Settlement Date and a
Pro Rata Interest in a Stock Purchase Contract, and (iii) from and including the
Stock Purchase Date and thereafter for so long as Normal ITS are outstanding,
1/100th of a share of Preferred Stock;




     (b) in the case of Stripped ITS, (i) from the date of issuance for each
Stripped ITS to but not including the Stock Purchase Date, $1,000 principal amount
of Pledged Treasury Securities and a Pro Rata Interest in a Stock Purchase
Contract, and (ii) from and including the Stock Purchase Date and thereafter for so
long as Stripped ITS are outstanding, 1/100th of a share of Preferred Stock,
subject to Section 4.8; and




     (c) in the case of Capital ITS, from the date of issuance for each Capital
ITS, $1,000 principal amount of Notes, subject to Section 5.14.”



     (d) The current definition of “Deferred Contract Payment Amount” is deleted in its entirety
and replaced with the following:




     ““Deferred Contract Payment Amount” means, at any time for each $100,000 stated
amount of Stock Purchase Contracts, the amount of the Contract Payments accrued on such
stated amount that has been deferred and not paid by reason of the Depositor’s exercise
of its right to defer payment of Contract Payments pursuant to Section 2.7 of the Stock
Purchase Contract Agreement (including a comparable amount in respect of any Contract
Payments deferred in respect of Fractional Contracts (as defined in the Stock Purchase
Contract Agreement)), together with interest accrued on such amount in accordance with
the terms of the Stock Purchase Contract Agreement.”



     (e) The following definition of “Depositor Affiliated Owner” is added:




     ““Depositor Affiliated Owner” means the Depositor, its Affiliates or any other
Person designated by the Depositor.”



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     (f) The following definition of “Exchange Offer Prospectus” is added:




     ““Exchange Offer Prospectus” means the prospectus and consent solicitation
statement, dated May [ • ], 2010 filed with the Commission as part of Depositor’s
Registration Statement on Form S-4 on May [7], 2010, related to Depositor’s offer to
exchange the Normal ITS for Depositor’s Depositary Shares, each representing a 1/100th
interest in a Share of Preferred Stock.”



     (g) The current definition of “Indenture Supplement” is deleted in its entirety and replaced
with the following:




     ““Indenture Supplement” means the Third Supplemental Indenture to the Base
Indenture, dated as of May 17, 2006, between the Depositor and the Note Trustee, as
supplemented by the Eighth Supplemental Indenture to the Base Indenture, dated as of
[ • ], 2010, between the Depositor and the Note Trustee, as further amended or
supplemented from time to time.”



     (h) The current definition of “Like Amount” is deleted in its entirety and replaced with the
following:




     ““Like Amount” means:




     (a) with respect to a distribution of Notes to Holders of Normal ITS,
Capital ITS or Common Securities in connection with a dissolution or
liquidation of the Issuer Trust or a redemption in kind of Capital ITS pursuant
to Section 4.2(c), Notes having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Notes are
distributed;




     (b) with respect to a distribution of Notes to a Third-Party Agent in
connection with a retirement of Normal ITS pursuant to Section 4.9, Notes
having a principal amount equal to the Liquidation Amount of the applicable
Subject Normal ITS;




     (c) with respect to a distribution of Stock Purchase Contracts to a
Third-Party Agent in connection with an early retirement of Normal ITS pursuant
to Section 4.9, the number of Stock Purchase Contracts equal to the number of
Subject Stock Purchase Contracts (as defined in the Stock Purchase Contract
Agreement);




     (d) with respect to a distribution of Pledged Treasury Securities to
Holders of Stripped ITS in connection with a dissolution or liquidation of the
Issuer Trust, Pledged Treasury Securities having a principal amount equal to
the Liquidation Amount of the Stripped ITS of the Holder to whom such Pledged
Treasury Securities are distributed;




     (e) with respect to a distribution of Preferred Stock or fractional
interests in Preferred Stock to Holders of Trust Securities in connection with
a dissolution or liquidation of the Issuer Trust, Preferred Stock or a
fractional interest in a share of Preferred Stock (which may be effected by the
Issuer Trust through the creation of depositary shares) having a liquidation
preference equal to the Liquidation Amount of the Trust Securities of the
Holder to whom such shares of Preferred Stock or a fractional interest in a
share of Preferred Stock (including through a depositary share) are
distributed;




     (f) with respect to any distribution of Additional Amounts to Holders of
Normal ITS, Capital ITS or Common Securities, Notes having a principal amount



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equal to the Liquidation Amount of the Normal ITS, Capital ITS or Common
Securities in respect of which such distribution is made;




     (g) with respect to a redemption of Preferred Stock, 1/100th of a share of
Preferred Stock for each Normal ITS or Common Security;




     (h) with respect to an Exchange of Normal ITS and Qualifying Treasury
Securities for Stripped ITS and Capital ITS pursuant to Section 5.13(b), a
number of Stripped ITS and a number of Capital ITS in each case equal to the
number of Normal ITS included in such Exchange (e.g., if 1,000 Normal ITS are
being Exchanged, the Holder will receive 1,000 Stripped ITS and 1,000 Capital
ITS in accordance with and subject to Section 5.13);




     (i) with respect to an Exchange of Stripped ITS and Capital ITS for Normal
ITS and Qualifying Treasury Securities, a number of Normal ITS equal to the
number of Stripped ITS and the number of Capital ITS being Exchanged (e.g., if
1,000 Stripped ITS and 1,000 Capital ITS are being Exchanged, the Holder will
receive upon the Exchange 1,000 Normal ITS together with $1,000,000 principal
amount of Qualifying Treasury Securities released from the Pledge, in
accordance with and subject to Section 5.13(e));




     (j) with respect to Notes (including Pledged Notes as applicable) being
deposited or delivered in connection with an Exchange, Notes having a principal
amount equal to $1,000 for each Normal ITS involved in the Exchange;




     (k) with respect to Section 5.16(c), $1,000 principal amount of Notes for
each $1,000 Liquidation Amount of Trust Preferred Securities of each Affected
Class; and




     (l) with respect to Section 5.16(d), 1/100th of a Stock Purchase Contract
with a stated amount of $100,000 for each $1,000 Liquidation Amount of Trust
Preferred Securities of the Affected Classes (or a comparable interest in the
case of a Fractional Contract).”



     (i) The current definition of “Notes” is deleted in its entirety and replaced with the
following:




     ““Notes” means the $1,251,000,000 initial aggregate principal amount of the
Depositor’s Remarketable Junior Subordinated Notes due 2042 issued pursuant to the
Indenture, or such lesser aggregate principal amount as shall remain outstanding from
time to time.”



     (j) The following definition of “Pro Rata Interest in a Stock Purchase Contract” is added:




     ““Pro Rata Interest in a Stock Purchase Contract” means, with respect to each $1,000
Liquidation Amount of Trust Preferred Securities, an interest in a Stock Purchase
Contract representing the right to acquire a 1/100th interest in a share of Preferred
Stock, together with such other rights, privileges, obligations and responsibilities as
are associated with such Stock Purchase Contract (including the right to receive Contract
Payments), in each case, on the terms and conditions set forth in such Stock Purchase
Contract.”



     (k) The current definition of “Remarketing Date” is deleted in its entirety and replaced with
the following definition of “Remarketing Period” and the term “Remarketing Period” shall replace
“Remarketing Date” in every instance where it is used in the Trust Agreement, except for Section
5.14:




     ““Remarketing Period” has the meaning specified in the Indenture.”



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     (l) The current definition of “Trust Property” is deleted in its entirety and replaced with
the following:




     ““Trust Property” means (a) the Notes for so long as they are owned by the Issuer
Trust in accordance with this Trust Agreement, (b) the Stock Purchase Contracts for so
long as they are owned by the Issuer Trust in accordance with this Trust Agreement, (c)
the Preferred Stock once acquired by the Issuer Trust pursuant to the Stock Purchase
Contracts, (d) treasury securities (that are required to be Qualifying Treasury
Securities when delivered) delivered to the Property Trustee (or the Collateral Agent)
pursuant to Section 5.13 or Section 5.14, (e) the rights of the Issuer Trust under the
Transaction Agreements, and (f) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by the Issuer
Trust or the Property Trustee on behalf of the Issuer Trust pursuant to the Trust
Agreement.”



     (m) The following definition of “Third-Party Agent” is added:




     ““Third-Party Agent” has the meaning specified in Section 4.9.”



     (n) The following definition of “Subject Normal ITS” is added:




     ““Subject Normal ITS” has the meaning specified in Section 4.9.”



     (o) The following definition of “Depositor Affiliated Normal ITS” is added:




     ““Depositor Affiliated Normal ITS” has the meaning specified in Section 4.9.”



     (p) The following definition of “Retirement Date” is added:




     ““Retirement Date” has the meaning specified in Section 4.9.”



     (q) The following definition of “Retirement Notice” is added:




     ““Retirement Notice” has the meaning specified in Section 4.9.”



     Section 2.2 Amendment of Section 2.4(c) of the Trust Agreement. The current Section 2.4(c) of
the Trust Agreement is deleted in its entirety and replaced with the following:




     “(c) In order to give effect to (i) Exchanges as provided in Section 5.13 or (ii)
the retirement of Normal ITS as provided in Section 4.9, the Securities Registrar may
endorse Book-Entry Trust Preferred Securities Certificates to reduce or increase the
number of Normal ITS, Stripped ITS or Capital ITS evidenced by each such Book-Entry Trust
Preferred Securities Certificate, provided that no such endorsement shall result in a
Book-Entry Trust Preferred Securities Certificate evidencing a number of Normal ITS,
Stripped ITS or Capital ITS exceeding the maximum number set forth on the face of such
Certificate.”



     Section 2.3 Amendment of Section 2.7(a)(i) of the Trust Agreement. New clauses (L) and (M)
are hereby added to Section 2.7(a)(i) of the Trust Agreement as follows:




     “(L) the taking of any action in connection with the retirement of Normal
ITS in accordance with Section 4.9 of this Trust Agreement; and




     (M) causing the Issuer Trust to execute, deliver and perform the Amended
and Restated Stock Purchase Contract Agreement, the Amended and Restated
Collateral Agreement, and such other agreements as may be necessary or
desirable in order to carry out the foregoing.”



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     Section 2.4 Amendment of Section 2.7(a)(ii) of the Trust Agreement. New clauses (P) and (Q)
are hereby added to Section 2.7(a)(ii) of the Trust Agreement as follows:




     “(P) the taking of any action in connection with the retirement of Normal
ITS in accordance with Section 4.9 of this Trust Agreement; and




     (Q) causing the Issuer Trust to execute, deliver and perform the Amended
and Restated Stock Purchase Contract Agreement, the Amended and Restated
Collateral Agreement, and such other agreements as may be necessary or
desirable in order to carry out the foregoing, to the extent that such
amendments are authorized by Section 12.2(b), and such other agreements as may
be necessary or desirable in order to carry out the foregoing.”



     Section 2.5 Amendment of Article IV of the Trust Agreement. A new Section 4.9 is hereby added
to Article IV of the Trust Agreement as follows:




     “Section 4.9 Retirement of Certain Normal ITS.




     If at any time a Depositor Affiliated Owner acquires or becomes obligated to acquire
Normal ITS pursuant to contract, a tender offer, an exchange offer, a negotiated transfer
or any other transaction (such Normal ITS, the “Depositor Affiliated Normal ITS”), the
Depositor shall have the right to submit a notice (the “Retirement Notice”) to the
Property Trustee and the Securities Registrar electing to retire all or a portion of such
Depositor Affiliated Normal ITS (the “Subject Normal ITS”) through the exchange of such
Subject Normal ITS for a Like Amount of Notes and Stock Purchase Contracts. The
Retirement Notice (i) shall specify the Liquidation Amount of the Subject Normal ITS with
respect to which such election is being made and the date on which the proposed
retirement is to occur (the “Retirement Date”) (which, without the consent of the
Property Trustee and the Securities Registrar, shall not be less than 2 Business Days
following the date that such Retirement Notice is so submitted), provided that such
Retirement Date shall not be a date within the period beginning with the record date for
a Distribution and ending with the applicable Distribution Date for such Distribution,
(ii) shall be conditioned upon the applicable Depositor Affiliated Owner having delivered
or caused to be delivered to the Securities Registrar or its designee the Subject Normal
ITS by Noon, New York City time, on the Retirement Date through the Clearing Agency and
(iii) shall designate the Third-Party Agent (as defined below). Upon the delivery of the
Subject Normal ITS to the Securities Registrar or its designee on the Retirement Date,
the Securities Registrar will provide written notice thereof to the Property Trustee and
the Collateral Agent, and the Collateral Agent shall release Pledged Notes of a Like
Amount with respect to such Subject Normal ITS from the Pledge and deliver them to the
Property Trustee who shall distribute such Like Amount of Notes and Stock Purchase
Contracts with respect to such Subject Normal ITS to the Depositor Affiliated Owner
designated by the Depositor in the Retirement Notice (the “Third-Party Agent”) in the
manner directed by the Depositor to the Property Trustee in writing. Following the
exchange of Subject Normal ITS for such Like Amount of Notes and Stock Purchase
Contracts, the Securities Registrar shall cancel the Subject Normal ITS and such Subject
Normal ITS will no longer be Outstanding for any purpose and all rights of the Holder or
its Affiliate(s) with respect to such Subject Normal ITS will cease, including, but not
limited to, any rights with respect to accrued but unpaid Distributions.




     Notwithstanding anything else in this Trust Agreement to the contrary, in order to
effectuate the exchanges contemplated by this Section 4.9, the Issuer Trust is hereby
authorized to execute, deliver and perform, and the Depositor, the Securities Registrar,
the Property Trustee or any Administrative Trustee on behalf of the Issuer Trust, acting
singly or collectively, is hereby authorized to execute and deliver on behalf of the
Issuer Trust, one or more exchange agreements, cancellation letters, and any and all
other documents, agreements, or certificates contemplated by or related to the exchanges
made pursuant to this Section 4.9, in each case without further vote or approval of any
other Person.”



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     Section 2.6 Amendment of Section 5.11(b) of the Trust Agreement. The current Section 5.11(b)
of the Trust Agreement is deleted in its entirety and replaced with the following:




     “(b) Any Book-Entry Trust Preferred Securities Certificate shall represent such
number of the Outstanding Trust Preferred Securities of the applicable Class as shall be
specified therein and may provide that it shall represent the aggregate number of
Outstanding Trust Preferred Securities of the applicable Class from time to time endorsed
thereon and that the aggregate number of Outstanding Trust Preferred Securities of the
applicable Class represented thereby may from time to time be reduced or increased, as
appropriate, to reflect transfer, redemptions, exchange (including the Exchanges pursuant
to Section 5.13) or cancellations (pursuant to Section 4.9). Any endorsement of a
Book-Entry Trust Preferred Securities Certificate to reflect the number, or any increase
or decrease in the number, of Outstanding Trust Preferred Securities of the applicable
Class represented thereby shall be made by the Securities Registrar (i) in such a manner
and upon instructions given by such Person or Persons as shall be specified in such Trust
Preferred Securities of the applicable Class or in a Depositor order to be delivered to
the Securities Registrar pursuant to Section 5.3 or (ii) otherwise in accordance with
written instructions or such other written form or instructions as is customary for the
Clearing Agency for such Trust Preferred Securities, from such Clearing Agency or its
nominee on behalf of any Person having a beneficial interest in such Book-Entry Trust
Preferred Securities Certificate. Subject to the provisions of Section 5.4, the
Securities Registrar shall deliver and redeliver any Book-Entry Trust Preferred
Securities Certificate in the manner and upon instructions given by the Person or Persons
specified in such Book-Entry Trust Preferred Securities Certificate or in the applicable
Depositor order (and an Administrative Trustee shall execute such Book-Entry Trust
Preferred Securities Certificate as shall be necessary in order to give effect to the
foregoing).”



     Section 2.7 Amendment of Section 5.14(d) of the Trust Agreement. The current Section 5.14(d)
of the Trust Agreement is deleted in its entirety and replaced by the following:




     “(d) Subject to the conditions set forth in this Trust Agreement, a Holder of Normal
ITS may make a Contingent Exchange Election by:




     (i) during the period that commences with the Collateral Agent’s and the
Securities Registrar’s opening of normal business hours on the tenth Business
Day immediately preceding the first day of a Remarketing Period and ending at
3:00 P.M., New York City time, on the second Business Day immediately preceding
the first day of such Remarketing Period, transferring the Normal ITS that are
the subject of such Contingent Exchange Election to the Securities Registrar,
accompanied by a duly executed and completed “Notice of Contingent Exchange
Election” in the form printed on the reverse side of the form of Normal ITS
Certificate; and




     (ii) by not later than 3:00 P.M., New York City time, on the second
Business Day immediately preceding the first day of a Remarketing Period,
depositing with the Collateral Agent, the treasury security that is the
Qualifying Treasury Security on the date of deposit, in the amount of $1,000
for each Normal ITS that is subject to the Contingent Exchange Election.”



     Section 2.8 Amendment of Section 5.14(f) of the Trust Agreement. The current Section 5.14(f)
of the Trust Agreement is deleted in its entirety and replaced by the following:




     “(f) Subject to the conditions set forth in this Trust Agreement, a Holder of
Capital ITS may make a Contingent Disposition Election by, during the period that
commences with the Securities Registrar’s opening of normal business hours on the tenth
Business Day immediately preceding the first day of a Remarketing Period and ending at
3:00 P.M., New York City time, on the second Business Day immediately preceding the first
day of such Remarketing Period,



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transferring the Capital ITS that are the subject of such Contingent Disposition
Election to the Securities Registrar, accompanied by a duly completed “Notice of
Contingent Disposition Election” in the form printed on the reverse side of the form of
Capital ITS Certificate.”



     Section 2.9 Amendment of Section 5.18(a)(i) of the Trust Agreement. The following new Section
5.18(a)(i) of the Trust Agreement is hereby added and the existing Sections 5.18(a)(i) through (vi)
shall be renumbered accordingly:




     “(i) the beginning and ending dates of the Remarketing Period and the
applicable Remarketing Settlement Date and Stock Purchase Date in the event the
Remarketing is Successful;”



     Section 2.10 Amendment of Section 6.1(c) of the Trust Agreement. The current
Section 6.1(c) of the Trust Agreement is deleted in its entirety and replaced with the following:




     “(c) For so long as any Stock Purchase Contracts are outstanding, the Issuer
Trustees may consent to any amendment to or modification of the Stock Purchase Contract
Agreement or the Collateral Agreement, without having obtained the prior approval of the
Holders of any Trust Preferred Securities to such amendment or modification, for the
purposes of (i) evidencing the succession of another person to the Issuer Trust’s or the
Property Trustee’s obligations thereunder, (ii) adding to the covenants therein for the
benefit of the Issuer Trust or the Property Trustee or to surrender any of the
Depositor’s rights or powers thereunder, (iii) evidencing and providing for the
acceptance of appointment of a successor Collateral Agent, Custodial Agent or Securities
Intermediary under the Collateral Agreement, (iv) curing any ambiguity, or correcting or
supplementing any provisions that may be inconsistent, (v) conforming the terms of the
Stock Purchase Contract Agreement or the Collateral Agreement, to the descriptions
thereof in the Prospectus and the Exchange Offer Prospectus, (vi) retiring Trust
Preferred Securities held by a Depositor Affiliated Owner or Trust Preferred Securities
with respect to which a Depositor Affiliated Owner has an obligation to purchase, or
(vii) making any other provisions with respect to such matters or questions, provided
that such action pursuant to this clause (vii) shall not adversely affect the interest of
the Holders of Trust Preferred Securities of any Class in any material respect. The
Issuer Trustees may, with the consent of the Holders of not less than a Majority in
Liquidation Amount of the Normal ITS and Stripped ITS then Outstanding, considered
together as a single Class, agree to any other amendment to or modification of the Stock
Purchase Contract Agreement or the Collateral Agreement, including such amendments or
modifications set forth in the Amended and Restated Stock Purchase Contract Agreement and
the Amended and Restated Collateral Agreement, except that, without obtaining the prior
written consent of each Holder of Normal ITS and Capital ITS then Outstanding, the Issuer
Trustees may not agree to any amendment or modification (not including the amendments and
modifications set forth in the Amended and Restated Stock Purchase Contract Agreement and
the Amended and Restated Collateral Agreement) that would (A) change any payment dates
for Contract Payments, (B) change the amount or type of Pledged Notes or Pledged Treasury
Securities required to be pledged under the Collateral Agreement, impair the right of the
Property Trustee (on behalf of the Issuer Trust) to receive distributions on Pledged
Notes or Pledged Treasury Securities or otherwise adversely affect the Issuer Trust’s
rights in or to the Pledged Notes or Pledged Treasury Securities, (C) change the place or
currency or reduce any Contract Payments, (D) impair the Property Trustee’s right (or any
Holder’s right pursuant to Section 5.16(d)) to institute suit for the enforcement of the
Stock Purchase Contracts or payment of any Contract Payments, or (E) reduce the number of
shares of Preferred Stock purchasable under the Stock Purchase Contracts, increase the
price to purchase Preferred Stock upon settlement of the Stock Purchase Contracts, change
the Stock Purchase Date or otherwise adversely affect the Issuer Trust’s rights under the
Stock Purchase Contracts.”



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     Section 2.11 Amendment of Section 11.1 of the Trust Agreement. The current Section 11.1 of
the Trust Agreement is deleted in its entirety and replaced with the following:




     “Each Holder of Trust Preferred Securities agrees, by acceptance of Trust Preferred
Securities, and each Owner agrees, by acceptance of a beneficial interest in Trust
Preferred Securities, to treat for all U.S. federal income tax purposes (i) the Issuer
Trust as one or more grantor trusts or agency arrangements, (ii) itself as the owner of
the Corresponding Assets for the related Class of Trust Preferred Securities, (iii) the
Notes as indebtedness of the Depositor, (iv) the stated interest on the Notes as ordinary
interest income that is includible in the Holder’s or Owner’s gross income at the time
the interest is paid or accrued in accordance with the Holder’s or Owner’s regular method
of tax accounting, and otherwise to treat the Notes as described in the Prospectus and,
as applicable, the Exchange Offer Prospectus and (v) the acquisition by the Depositor of
Subject Normal ITS, in connection with a retirement of Normal ITS (as described in
Section 4.9), as consisting of the following transactions: (A) the distribution by the
Issuer Trust to the Third-Party Agent, on behalf of the Holders of Subject Normal ITS, of
a Like Amount of Notes and Stock Purchase Contracts in redemption of the Subject Normal
ITS, (B) the retirement of such Like Amount of Notes for consideration equal to $1,000
per $1,000 principal amount of such Notes, (C) the termination or settlement of such Like
Amount of Stock Purchase Contracts which shall thereafter no longer be treated as
outstanding for any purpose.”



     Section 2.12 Amendment of Section 12.2(a) of the Trust Agreement. The current Section 12.2(a)
of the Trust Agreement is deleted in its entirety and replaced with the following:




     “(a) This Trust Agreement may be amended from time to time by the Administrative
Trustees and the Holders of all of the Common Securities, without the consent of any
Holder of the Trust Preferred Securities, the Property Trustee or the Delaware Trustee
(i) to cure any ambiguity, correct or supplement any provision herein that may be
inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be necessary to
ensure that the Issuer Trust will not be taxable as a corporation or classified as a
partnership for U.S. federal income tax purposes at all times that any Trust Securities
are outstanding, to ensure that the Issuer Trust will not be required to register as an
“investment company” under the Investment Company Act or to ensure the treatment of the
Trust Preferred Securities as Tier 1 regulatory capital under the prevailing Federal
Reserve Board rules and regulations, (iii) to provide that Trust Preferred Securities
Certificates may be executed by an Administrative Trustee by facsimile signature instead
of manual signature, in which case such amendment(s) shall also provide for the
appointment by the Depositor of an authentication agent, the fees and expenses of which
will be paid by the Depositor, a form of authentication certificate, and provisions to
the effect that Trust Preferred Securities Certificates that have been executed by an
Administrative Trustee by facsimile signature shall not be entitled to any benefit under
the Trust Agreement or be valid or obligatory for any purpose unless the certificate of
authentication thereon has been executed by the authentication agent by manual signature,
(iv) to conform the terms of this Trust Agreement to the description of this Trust
Agreement and the Trust Securities in the Prospectus and the Exchange Offer Prospectus,
or (v) to provide for the retirement of Trust Preferred Securities held by a Depositor
Affiliated Owner or Trust Preferred Securities with respect to which a Depositor
Affiliated Owner has an obligation to purchase; provided, however, that in the case of
either clause (i) or (ii), such action shall not adversely affect in any material respect
the interests of any Holder, the Property Trustee or the Delaware Trustee; provided,
further, that in the case of clause (iv), the Depositor shall deliver to the Property
Trustee an Officers’ Certificate and an Opinion of Counsel (who may be counsel to the
Depositor or the Issuer Trust), in each case confirming that such amendment has the
effect of conforming the terms of this Trust Agreement to the descriptions of this Trust
Agreement and the Trust Securities in the Prospectus. Any such



Amendment No. 1 to 

Amended and Restated Trust Agreement






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amendment shall become effective when notice is given to the Property Trustee and
the Holders of the Trust Preferred Securities.”



ARTICLE III




Miscellaneous



     Section 3.1 Separability Clause.



     In case any provision in the Trust Agreement, as amended by this Amendment, shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.



     Section 3.2 Governing Law.



     This Amendment shall be governed by and construed in accordance with the laws of the State of
Delaware (without regard to conflicts of laws principles).



     Section 3.3 Successors and Assigns.



     All covenants and agreements in the Trust Agreement, as amended by this Amendment, by each
party thereto shall bind its successors and assigns, whether so expressed or not.



     Section 3.4 Effect of Headings.



     The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.



     Section 3.5 Trust Indenture Act; Conflict with Trust Indenture Act.



     If any provision of the Trust Agreement, as amended by this Amendment, limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern the Trust Agreement, as amended by this Amendment, the latter
provision shall control. If any provision of the Trust Agreement, as amended by this Amendment,
modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to the Trust Agreement, as amended by this Amendment,
as so modified or to be excluded, as the case may be.



* * * *




     This Amendment may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



Amendment No. 1 to 

Amended and Restated Trust Agreement





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     In Witness Whereof, this Amendment has been executed and is effective as of the day
and year first above written.



	 	 	 	 	 

	 	 	U.S. BANCORP, as Depositor
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Kenneth D. Nelson
	 

	 	 	 	     as Administrative Trustee
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Andrew Cecere
	 

	 	 	 	     as Administrative Trustee
	 
	 	 	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	Lee R. Mitau
	 

	 	 	 	     as Administrative Trustee






Amendment No. 1 to 

Amended and Restated Trust Agreement





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