Recitals
EXHIBIT 99.1
ICONs Replacement Capital Covenant, dated as of August 30, 2006 (this “Replacement
Capital Covenant”), by U.S. Bancorp, a Delaware corporation (together with its successors and
assigns, the “Corporation”), in favor of and for the benefit of each Covered Debtholder (as defined
below).
Recitals
A. On the date hereof, the Corporation is issuing $766,000,000 aggregate principal amount of
its 6.60% Income Capital Obligation NotesSM (ICONs) due September 15, 2066
(the “ICONs”) to USB Capital XI (the “Trust”).
B. On the date hereof, the Trust is issuing $765,000,000 aggregate liquidation amount of its
6.60% Trust Preferred Securities (the “Trust Preferred Securities” and together with the ICONs, the
“Securities”).
C. This Replacement Capital Covenant is the “Replacement Capital Covenant” referred to in the
Prospectus Supplement, dated August 23, 2006, relating to the Trust Preferred Securities (together
with the accompanying Prospectus, dated August 3, 2005, the “Prospectus Supplement”).
D. The Corporation is entering into and disclosing the content of this Replacement Capital
Covenant in the manner provided below with the intent that the covenants provided for in this
Replacement Capital Covenant be enforceable by each Covered Debtholder and that the Corporation be
estopped from disregarding the covenants in this Replacement Capital Covenant, in each case to the
fullest extent permitted by applicable law.
NOW, THEREFORE, the Corporation hereby covenants and agrees as follows in favor of and for the
benefit of each Covered Debtholder.
SECTION 1. Definitions. Capitalized terms used in this Replacement Capital Covenant
(including the Recitals) have the meanings set forth in Schedule I hereto.
SECTION 2. Limitations on Redemption and Repurchase of Securities. The Corporation hereby
promises and covenants to and for the benefit of each Covered Debtholder that the Corporation shall
not, and shall cause the Trust not to, redeem or repurchase all or any part of the Securities on or
before September 15, 2056 except to the extent that (a) the Corporation has obtained the prior
approval of the Federal Reserve if such approval is then required under the Federal Reserve’s
capital guidelines and (b) applicable redemption or repurchase price does not exceed the sum of the
following amounts:
(i) the Applicable Percentage of the aggregate amount of net cash proceeds received by the
Corporation and its Subsidiaries since the most recent Measurement Date from the sale of Common
Stock to Persons other than the Corporation and its Subsidiaries; plus
(ii) 100% of the aggregate amount of net cash proceeds received by the Corporation and its
Subsidiaries since the most recent Measurement Date from the sale of Mandatorily Convertible
Preferred Stock and Debt Exchangeable for Equity to Persons other than the Corporation and its
Subsidiaries; plus
(iii) 100% of the aggregate amount of net cash proceeds received by the Corporation and its
Subsidiaries since the most recent Measurement Date from the sale of Qualifying Capital Securities
to Persons other than the Corporation and its Subsidiaries.
SECTION 3. Covered Debt.
(a) The Corporation represents and warrants that the Initial Covered Debt is Eligible Debt.
(b) On or during the 30-day period immediately preceding any Redesignation Date with respect
to the Covered Debt then in effect, the Corporation shall identify the series of Eligible Debt that
will become the Covered Debt on and after such Redesignation Date in accordance with the following
procedures:
(i) the Corporation shall identify each series of its and U.S. Bank’s then outstanding
long-term indebtedness for money borrowed that is Eligible Debt;
(ii) if only one series of the Corporation’s then outstanding long-term indebtedness for money
borrowed is Eligible Debt, such series shall become the Covered Debt commencing on the related
Redesignation Date;
(iii) if the Corporation has more than one outstanding series of long-term indebtedness for
money borrowed that is Eligible Debt, then the Corporation shall identify a specific series that
has a final maturity date that is at least three years after the date on which the Corporation is
applying the procedures in this Section 3(b) and such series shall become the Covered Debt on the
related Redesignation Date;
(iv) if the Corporation has no outstanding series of long-term indebtedness for money borrowed
that is Eligible Debt, but U.S. Bank is a Subsidiary of the Corporation and U.S. Bank has only one
outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, such series
shall become the Covered Debt commencing on the related Redesignation Date;
(v) if the Corporation has no outstanding series of long-term indebtedness for money borrowed
that is Eligible Debt, but U.S. Bank is a Subsidiary of the Corporation and U.S. Bank has more than
one outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, then the
Corporation shall identify a specific series that has a final maturity date that is at least three
years after the date on which the Corporation is applying the procedures in this Section 3(b) and
such series shall become the Covered Debt on the related Redesignation Date;
(vi) the series of outstanding long-term indebtedness for money borrowed that is determined to
be Covered Debt pursuant to clause (ii), (iii), (iv) or (v) above shall be the Covered Debt for
purposes of this Replacement Capital Covenant for the period commencing on the related
Redesignation Date and continuing to but not including the Redesignation Date as of which a new
series of outstanding long-term indebtedness is next determined to be the Covered Debt pursuant to
the procedures set forth in this Section 3(b); and
(vii) in connection with such identification of a new series of Covered Debt, the Corporation
shall give the notice provided for in Section 3(c) within the time frame provided for in such
section.
(c) Notice. In order to give effect to the intent of the Corporation described in Recital D,
the Corporation covenants that (i) simultaneously with the execution of this Replacement Capital
Covenant or as soon as practicable after the date hereof, it shall give notice to the Holders of
the Initial Covered Debt,
in the manner provided in the indenture relating to the Initial Covered Debt, of this
Replacement Capital Covenant and the rights granted to such Holders hereunder; (ii) so long as the
Corporation is a reporting company under the Securities Exchange Act, the Corporation will include
in each annual report filed with the Commission on Form 10-K under the Securities Exchange Act a
description of the covenant set forth
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in Section 2 and identify the series of long-term
indebtedness for borrowed money that is Covered Debt as of the date such Form 10-K is filed with
the Commission; (iii) if a series of the Corporation’s or U.S. Bank’s long-term indebtedness for
money borrowed (1) becomes Covered Debt or (2) ceases to be Covered Debt, give notice of such
occurrence within 30 days to the holders of such long-term indebtedness for money borrowed in the
manner provided for in the indenture, fiscal agency agreement or other instrument under which such
long-term indebtedness for money borrowed was issued and report such change in the Corporation’s
next quarterly report on Form 10-Q or annual report on Form 10-K, as applicable; (iv) if, and only
if, the Corporation ceases to be a reporting company under the Securities Exchange Act, post on its
website the information otherwise required to be included in Securities Exchange Act filings
pursuant to clauses (ii) and (iii) of this Section 3(c); and (v) promptly upon request by any
Holder of Covered Debt, provide such Holder with an executed copy of this Replacement Capital
Covenant.
SECTION 4. Termination, Amendment and Waiver.
(a) The obligations of the Corporation pursuant to this Replacement Capital Covenant shall
remain in full force and effect until the earliest date (the “Termination Date”) to occur of (i)
September 15, 2056, (ii) the date, if any, on which the Holders of a majority by principal amount
of the then-effective series of Covered Debt consent or agree in writing to the termination of this
Replacement Capital Covenant and the obligations of the Corporation hereunder and (iii) the date on
which neither the Corporation nor U.S. Bank has any series of outstanding Eligible Senior Debt or
Eligible Subordinated Debt (in each case without giving effect to the rating requirement in clause
(b) of the definition of each such term). From and after the Termination Date, the obligations of
the Corporation pursuant to this Replacement Capital Covenant shall be of no further force and
effect.
(b) This Replacement Capital Covenant may be amended or supplemented from time to time by a
written instrument signed by the Corporation with the consent of the Holders of a majority by
principal amount of the then-effective series of Covered Debt, provided that this
Replacement Capital Covenant may be amended or supplemented from time to time by a written
instrument signed only by the Corporation (and without the consent of the Holders of the
then-effective series of Covered Debt) if the effect of such amendment or supplement is solely to
impose additional restrictions on the ability of the Corporation to redeem or repurchase Securities
in any circumstance or an officer of the Corporation has delivered to the Holders of the then
effective series of Covered Debt in the manner provided for in the indenture, fiscal agency
agreement or other instrument with respect to such Covered Debt a written certificate stating that,
in his or her determination, such amendment or supplement is not adverse to the Holders of the
then-effective series of Covered Debt.
(c) For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required
to terminate, amend or supplement the obligations of the Corporation under this Replacement Capital
Covenant shall be the Holders of the then-effective Covered Debt as of a record date established by
the Corporation that is not more than 30 days prior to the date on which the Corporation proposes
that such termination, amendment or supplement becomes effective.
SECTION 5. Miscellaneous.
(a) This Replacement Capital Covenant shall be governed by and construed in accordance with
the laws of the State of New York.
(b) This Replacement Capital Covenant shall be binding upon the Corporation and its successors
and assigns and shall inure to the benefit of the Covered Debtholders as they exist from
time-to-time (it being understood and agreed by the Corporation that any Person who is a Covered
Debtholder at the time
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such Person acquires, holds or sells Covered Debt shall retain its status as
a Covered Debtholder for so long as the series of long-term indebtedness for borrowed money owned
by such Person is Covered Debt and, if such Person initiates a claim or proceeding to enforce its
rights under this Replacement Capital Covenant after the Corporation has violated its covenants in
Section 2 and before the series of long-term indebtedness for money borrowed held by such Person is
no longer Covered Debt, such Person’s rights under this Replacement Capital Covenant shall not
terminate by reason of such series of long-term indebtedness for money borrowed no longer being
Covered Debt).
(c) The Corporation acknowledges that reliance by each Covered Debtholder upon the covenants
in this Replacement Capital Covenant is reasonable and foreseeable by the Corporation and that,
were the Corporation to disregard its covenants in this Replacement Capital Covenant, each Covered
Debtholder would have sustained an injury as a result of its reliance on such covenants.
(d) All demands, notices, requests and other communications to the Corporation under this
Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and (i)
if served by personal delivery upon the Corporation, on the day so delivered (or, if such day is
not a Business Day, the next succeeding Business Day), (ii) if delivered by registered post or
certified mail, return receipt requested, or sent to the Corporation by a national or international
courier service, on the date of receipt by the Corporation (or, if such date of receipt is not a
Business Day, the next succeeding Business Day), or (iii) if sent by telecopier, on the day
telecopied, or if not a Business Day, the next succeeding Business Day, provided that the telecopy
is promptly confirmed by telephone confirmation thereof, and in each case to the Corporation at the
address set forth below, or at such other address as the Corporation may thereafter notify to
Covered Debtholders or post on its website as the address for notices under this Replacement
Capital Covenant:
U.S. Bancorp
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Treasury Department
Facsimile No: (000) 000-0000
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Treasury Department
Facsimile No: (000) 000-0000
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Corporation has caused this Replacement Capital Covenant to be
executed by its duly authorized officer, as of the day and year first above written.
| U.S. Bancorp | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Senior Vice President | |||||
Schedule 1
Definitions
“Applicable Percentage” means one divided by (a) 75% with respect to any redemption or
repurchase on or prior to September 15, 2016, (b) 50% with respect to any redemption or repurchase
on or prior to September 15, 2036, and (c) 25% with respect to any redemption or repurchase after
September 15, 2036.
“Business Day” means each day other than (a) a Saturday or Sunday or (b) a day on which
banking institutions in The City of New York are authorized or required by law or executive order
to remain closed.
“Commission” means the United States Securities and Exchange Commission.
“Common Stock” means common stock of the Corporation (including common stock and rights to
acquire common stock).
“Corporation” has the meaning specified in the introduction to this instrument.
“Covered Debt” means (a) at the date of this Replacement Capital Covenant and continuing to
but not including the first Redesignation Date, the Initial Covered Debt and (b) thereafter,
commencing with each Redesignation Date and continuing to but not including the next succeeding
Redesignation Date, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for
such period.
“Covered Debtholder” means each Person (whether a Holder or a beneficial owner holding through
a participant in a clearing agency) that buys, holds or sells long-term indebtedness for money
borrowed of the Corporation or U.S. Bank during the period that such long-term indebtedness for
money borrowed is Covered Debt, provided that a Person who has sold all its right, title and
interest in Covered Debt shall cease to be a Covered Debtholder at the time of such sale if, at
such time, the Corporation has not breached or repudiated, or threatened to breach or repudiate,
its obligations hereunder.
“Debt Exchangeable for Equity” means a security (or combination of securities) that:
(i) gives the holder a beneficial interest in (a) debt securities of the Corporation that are
the most junior subordinated debt of the Corporation (or rank pari passu with the most junior
subordinated debt of the Corporation) and (b) a fractional interest in a stock purchase contract;
(ii) includes a remarketing feature pursuant to which the subordinated debt of the Corporation
is remarketed to new investors within five years from the date of issuance of the security or
earlier in the event of an early settlement event based on (a) the capital ratios of the
Corporation, (b) the capital ratios of the Corporation as anticipated by the Federal Reserve, or
(c) the dissolution of the issuer of such Debt Exchangeable for Equity;
(iii) provides for the proceeds raised in the remarketing to be used to purchase Common Stock
or Qualifying Non-Cumulative Preferred Stock;
(iv) includes a replacement capital covenant substantially similar to this Replacement Capital
Covenant, provided that such replacement capital covenant will apply to such security (or
combination of securities) and to the Common Stock or Qualifying Non-Cumulative Preferred Stock and
will not include Debt Exchangeable for Equity in the definition of “qualifying capital securities”;
and
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(v) after the issuance of such Common Stock or Qualifying Non-Cumulative Preferred Stock,
provides the holder of the security with a beneficial interest in such Common Stock or Qualifying
Non-Cumulative Preferred Stock.
“Distribution Date” means, as to any securities or combination of securities, the dates on
which periodic Distributions on such securities are scheduled to be made.
“Distribution Period” means, as to any securities or combination of securities, each period
from and including a Distribution Date for such securities to but not including the next succeeding
Distribution Date for such securities.
“Distributions” means, as to a security or combination of securities, dividends, interest
payments or other income distributions to the holders thereof that are not Subsidiaries of the
Corporation.
“Eligible Debt” means, at any time, Eligible Subordinated Debt or, if no Eligible Subordinated
Debt is then outstanding, Eligible Senior Debt.
“Eligible Senior Debt” means, at any time in respect of any issuer, each series of outstanding
long-term indebtedness for money borrowed of such issuer that (a) upon a bankruptcy, liquidation,
dissolution or winding up of the issuer, ranks most senior among the issuer’s then outstanding
classes of indebtedness for money borrowed, (b) is then assigned a rating by at least one NRSRO
(provided that this clause (b) shall apply on a Redesignation Date only if on such date the issuer
has outstanding senior long-term indebtedness for money borrowed that satisfies the requirements of
clauses (a), (c) and (d) that is then assigned a rating by at least one NRSRO), (c) has an
outstanding principal amount of not less than $100,000,000, and (d) was issued through or with the
assistance of a commercial or investment banking firm or firms acting as underwriters, initial
purchasers or placement or distribution agents. For purposes of this definition as applied to
securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that has
(or, if such indebtedness is held by a trust or other intermediate entity established directly or
indirectly by the issuer, the securities of such intermediate entity that have) a separate CUSIP
number shall be deemed to be a series of the issuer’s long-term indebtedness for money borrowed
that is separate from each other series of such indebtedness.
“Eligible Subordinated Debt” means, at any time in respect of any issuer, each series of the
issuer’s then-outstanding long-term indebtedness for money borrowed that (a) upon a bankruptcy,
liquidation, dissolution or winding up of the issuer, ranks subordinate to the issuer’s then
outstanding series of indebtedness for money borrowed that ranks most senior, (b) is then assigned
a rating by at least one NRSRO (provided that this clause (b) shall apply on a Redesignation Date
only if on such date the issuer has outstanding subordinated long-term indebtedness for money
borrowed that satisfies the requirements in clauses (a), (c) and (d) that is then assigned a rating
by at least one NRSRO), (c) has an outstanding principal amount of not less than $100,000,000, and
(d) was issued through or with the assistance of a commercial or investment banking firm or firms
acting as underwriters, initial purchasers or placement or distribution agents. For purposes of
this definition as applied to securities with a CUSIP number, each issuance of long-term
indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or other
intermediate entity established directly or indirectly by the issuer, the securities of such
intermediate entity that have) a separate CUSIP number shall be deemed to be a series of the
issuer’s long-term indebtedness for money borrowed that is separate from each other series of such
indebtedness.
“Federal Reserve” means the Board of Governors of the Federal Reserve System.
“Fifth Supplemental Indenture” means the Fifth Supplemental Indenture, dated August 30, 2006,
to the Junior Subordinated Indenture, dated as of April 28, 2005, as supplemented by the First
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Supplemental Indenture, dated August 3, 2005, by and between the Corporation, Delaware Trust
Company, National Association, as original trustee, and Wilmington Trust Company, as successor
trustee, the Second Supplemental Indenture, dated December 29, 2006, by and between the Corporation
and Wilmington Trust Company, the Third Supplemental Indenture, dated March 17, 2006, by and
between the Corporation and Wilmington Trust Company and the Fourth Supplemental Indenture, dated
April 12, 2006 by and between the Corporation and Wilmington Trust Company.
“Holder” means, as to the Covered Debt then in effect, each holder of such Covered Debt as
reflected on the securities register maintained by or on behalf of the Corporation with respect to
such Covered Debt.
“Initial Covered Debt” means the 5.875% junior subordinated debentures due 2035, underlying
the 5.875% trust preferred securities of USB Capital VII (CUSIP No. 000000000).
“Mandatorily Convertible Preferred Stock” means cumulative preferred stock with (a) no
prepayment obligation on the part of the issuer thereof, whether at the election of the holders or
otherwise, and (b) a requirement that the preferred stock
convert into a determinable number of shares of Common Stock of the
Corporation within a range within three years from the date of its issuance.
“Mandatory Trigger Provision” means, as to any security or combination of securities,
provisions in the terms thereof or of the related transaction agreements that (A) require, or at
its option in the case of Non-Cumulative perpetual preferred stock permit, the issuer of such
security or combination of securities to make payment of Distributions on such securities only
pursuant to the issuance and sale of shares of its Common Stock, rights to purchase Non-Cumulative
perpetual preferred stock, within two years of a failure to satisfy one or more financial tests set
forth in the terms of such securities or related transaction agreements, in amount such that the
net proceeds of such sale at least equal the amount of unpaid Distributions on such securities
(including without limitation all deferred and accumulated amounts) and in either case requires the
application of the net proceeds of such sale to pay such unpaid Distributions, (B) in the case of
securities other than Non-Cumulative perpetual preferred stock, prohibit the Corporation from
repurchasing any of its Common Stock prior to the date six months after the issuer applies the net
proceeds of the sales described in clause (A) to pay such unpaid Distributions in full and (C) upon
any liquidation, dissolution, winding up, reorganization or in connection with any insolvency,
receivership or proceeding under any bankruptcy law with respect to the Corporation, limit the
claim of the holders of such securities (other than Non-Cumulative perpetual preferred stock) for
Distributions that accumulate during a period in which the Corporation fails to satisfy one or more
financial tests set forth in the terms of such securities or related transaction agreements to (x)
25% of the principal amount of such securities then outstanding in the case of securities not
permitting the issuance and sale pursuant to the provisions described in clause (A) above of
securities other than Common Stock or (y) two years of accumulated and unpaid Distributions
(including compounded amounts thereon) in all other cases. No remedy other than Permitted Remedies
will arise by the terms of such securities or related transaction agreements in favor of the
holders of such securities as a result of the issuer’s failure to pay Distributions because of the
Mandatory Trigger Provision or as a result of the issuer’s exercise of its right under an Optional
Deferral Provision until Distributions have been deferred for one or more Distribution Periods that
total together at least ten years.
“Market Disruption Events” means one or more events or circumstances substantially similar to
those listed as “Market Disruption Events” in the Fifth Supplemental Indenture.
“Measurement Date” means, with respect to any redemption or repurchase of Securities, the date
six months prior to the delivery of notice of such redemption or the date of such repurchase.
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“Non-Cumulative” means with respect to any securities that the issuer thereof may elect not to
make any number of periodic Distributions without any remedy arising under the terms of the
securities or related agreements in favor of the holders, other than one or more Permitted
Remedies. Securities that include provisions requiring the Corporation to issue Non-Cumulative
perpetual preferred stock, Common Stock and/or other equity securities and apply the proceeds to
pay unpaid Distributions on terms substantially similar to the terms of the alternative payment
mechanism described in Section 2.1(h) of the Fifth Supplemental Indenture shall also be deemed to
be “Non-Cumulative” securities for all purposes of this Replacement Capital Covenant other than the
definition of “Qualifying Non-Cumulative Preferred Stock”.
“NRSRO” means a nationally recognized statistical rating organization within the meaning of
Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act.
“Optional Deferral Provision” means, as to any securities, a provision in the terms thereof or
of the related transaction agreements to the following effect:
the issuer of such securities may, in its sole discretion, defer in whole or in part payment
of Distributions on such securities for one or more consecutive Distribution Periods of up to ten
years, without any remedy other than Permitted Remedies as a result of such issuer’s failure to pay
Distributions.
“Permitted Remedies” means, with respect to any securities, one or more of the following
remedies:
(a) rights in favor of the holders of such securities permitting such holders to elect one or
more directors of the issuer (including any such rights required by the listing requirements of any
stock or securities exchange on which such securities may be listed or traded),
(b) complete or partial prohibitions on the issuer paying Distributions on or repurchasing
common stock or other securities that rank pari passu with or junior as to Distributions to such
securities for so long as Distributions on such securities, including unpaid Distributions, remain
unpaid, and
(c) provisions obliging the Corporation to cause such unpaid Distributions to be paid in full
pursuant to an alternative payment mechanism as described in Section 2.1(h) of the Fifth
Supplemental Indenture.
“Person” means any individual, corporation, partnership, joint venture, trust, limited
liability company or corporation, unincorporated organization or government or any agency or
political subdivision thereof.
“Prospectus Supplement” has the meaning specified in Recital C.
“Qualifying Capital Securities” means securities (other than Common Stock and securities
convertible into Common Stock) that (a) qualify as Tier 1 capital of the Corporation under the
capital guidelines of the Federal Reserve as then in effect and applicable to bank holding
companies and (b) in the determination of the Corporation, meet one of the following criteria:
(i) in connection with any redemption or repurchase of ICONs or Trust Preferred Securities on
or prior to September 15, 2016:
(A) junior subordinated debt securities and guarantees issued by the Corporation with respect
to trust preferred securities if the junior subordinated debt securities and guarantees (1) rank
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pari passu with or junior to the ICONs upon the liquidation, dissolution or winding-up of the
Corporation, (2) have terms that are substantially similar to the terms of the ICONs and guarantees
described in the Prospectus Supplement and (3) are subject to a replacement capital covenant
substantially similar to this Replacement Capital Covenant or, to the extent approved by the
Federal Reserve, have a Mandatory Trigger Provision;
(B) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or
junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) are
Non-Cumulative, (3) have no maturity or a final maturity of at least 60 years and (4) are subject
to a replacement capital covenant substantially similar to this Replacement Capital Covenant or, to
the extent approved by the Federal Reserve, have a Mandatory Trigger Provision; or
(C) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or
junior to the ICONs, (2) are Non-Cumulative and (3) have no maturity or a final maturity of at
least 40 years, (4) are subject to a replacement capital covenant substantially similar to this
Replacement Capital Covenant and (5) to the extent approved by the Federal Reserve, have a
Mandatory Trigger Provision;
(ii) in connection with any redemption or repurchase of ICONs or Trust Preferred Securities
after September 15, 2016 and on or prior to September 15, 2036:
(A) all securities described under clause (i) of this definition;
(B) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or
junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) have no
maturity or a final maturity of at least 60 years, (3) are subject to a replacement capital
covenant substantially similar to this Replacement Capital Covenant and (4) have an Optional
Deferral Provision;
(C) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or
junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) are
Non-Cumulative and (3) have no maturity or a final maturity of at least 60 years;
(D) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or
junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) are
Non-Cumulative, (3) have no maturity or a final maturity at least 40 years and (4) are subject to a
replacement capital covenant substantially similar to this Replacement Capital Covenant or, to the
extent approved by the Federal Reserve, have a Mandatory Trigger Provision;
(E) securities issued by the Corporation or its Subsidiaries that (1) rank senior to the ICONs
and junior to the Corporation’s senior subordinated debt qualifying as Tier 2 capital upon a
liquidation, dissolution or winding up of the Corporation, (2) are Non-Cumulative, (3) to the
extent approved by the Federal Reserve, have a Mandatory Trigger Provision and (4) have no maturity
or a final maturity of at least 60 years;
(F) cumulative preferred stock issued by the Corporation or its Subsidiaries that (A) has no
prepayment obligation on the part of the issuer thereof, whether at the election of the holders or
otherwise, and (B) (1) has no maturity or a final maturity of at least 60 years and (2) is subject
to a replacement capital covenant substantially similar to this Replacement Capital Covenant; or
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(G) other securities issued by the Corporation or its Subsidiaries that (A) rank upon a
liquidation, dissolution or winding-up of the Corporation either (1) pari passu with or junior to
the ICONs or (2) pari passu with the claims of the Corporation’s trade creditors and junior to all
of the Corporation’s long-term indebtedness for money borrowed (other than the Corporation’s
long-term indebtedness for money borrowed from time to time outstanding that by its terms ranks
pari passu with such securities on a liquidation, dissolution or winding-up of the Corporation);
and (B) are Non-Cumulative and either (x) have no maturity or a final maturity of at least 40 years
and, to the extent approved by the Federal Reserve, have a Mandatory Trigger Provision or (y) have
no maturity or a final maturity of at least 25 years and are subject to a replacement capital
covenant substantially similar to this Replacement Capital Covenant and, to the extent approved by
the Federal Reserve, have a Mandatory Trigger Provision; or
(iii) in connection with any redemption or repurchase of ICONs or Trust Preferred Securities
at any time after September 15, 2036:
(A) all securities described under clause (ii) of this definition;
(B) preferred stock issued by the Corporation that (1) has no maturity or a final maturity of
at least 60 years and (2) has an Optional Deferral Provision;
(C) securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or
junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) either
(A) have no maturity or a final maturity of at least 60 years or (B) have no maturity or a final
maturity at least 30 years and are subject to a replacement capital covenant substantially similar
to this Replacement Capital Covenant and (3) have an Optional Deferral Provision;
(D) securities issued by the Corporation or its Subsidiaries that (1) rank senior to the ICONs
and junior to the Corporation’s senior subordinated debt qualifying as Tier 2 capital upon a
liquidation, dissolution or winding up of the Corporation, (2) to the extent approved by the
Federal Reserve, have a Mandatory Trigger Provision and (3) have no maturity or a final maturity at
least 30 years; or
(E) cumulative preferred stock issued by the Corporation or its Subsidiaries that either (1)
has no maturity or a final maturity of at least 60 years or (2) has a maturity of at least 40 years
and is subject to a replacement capital covenant substantially similar to this Replacement Capital
Covenant.
“Qualifying Non-Cumulative Preferred Stock” means Non-Cumulative perpetual preferred stock of
the Corporation or its Subsidiaries that ranks pari passu with or junior to other preferred stock
of the issuer.
“Redesignation Date” means, as to the Covered Debt in effect at any time, the earliest of (a)
the date that is two years prior to the final maturity date of such Covered Debt, (b) if the
Corporation elects to redeem, or the Corporation or a Subsidiary of the Corporation elects to
repurchase, such Covered Debt either in whole or in part with the consequence that after giving
effect to such redemption or repurchase the outstanding principal amount of such Covered Debt is
less than $100,000,000, the applicable redemption or repurchase date and (c) if such Covered Debt
is not Eligible Subordinated Debt of the Corporation, the date on which the Corporation issues
long-term indebtedness for money borrowed that is Eligible Subordinated Debt.
“Replacement Capital Covenant” has the meaning specified in the introduction to this
instrument.
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“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Securities” has the meaning specified in Recital B.
“Subsidiary” means, at any time, any Person the shares of stock or other ownership interests
of which having ordinary voting power to elect a majority of the board of directors or other
managers of such Person are at the time owned, or the management or policies of which are otherwise
at the time controlled, directly or indirectly through one or more intermediaries (including other
Subsidiaries) or both, by another Person.
“U.S. Bank” means U.S. Bank National Association.
“Termination Date” has the meaning specified in Section 4(a).
“Trust” has the meaning specified in Recital A.
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