Contract
Exhibit 99.5
AMENDMENT (this “Amendment”), dated as of June 3, 2011 (the “Amendment Effective Date”), by
U.S. Bancorp, a Delaware corporation (together with its successors and assigns, the “Corporation”),
to the Replacement Capital Covenant, dated as of August 30, 2006 (the “2006 Replacement Capital
Covenant”), the Replacement Capital Covenant, dated as of February 1, 2007 (the “2007 Replacement
Capital Covenant”), the Replacement Capital Covenant, dated as of March 17, 2008 (the “2008
Replacement Capital Covenant”) and the Replacement Capital Covenant, dated as of June 10, 2010 (the
“2010 Replacement Capital Covenant” and collectively with the 2006 Replacement Capital Covenant,
the 2007 Replacement Capital Covenant and the 2008 Replacement Capital Covenant, the “Replacement
Capital Covenants”), each entered into by the Corporation in favor of and for the benefit of each
Covered Debtholder (as defined in the applicable Replacement Capital Covenant).
Recitals
A. The Corporation entered into the Replacement Capital Covenants in connection with its
issuance of either (i) junior subordinated debentures to certain affiliated Delaware statutory
trusts and the issuance of capital securities by those trusts, or (ii) shares of its preferred
stock.
B. Pursuant to Section 4(b) of each Replacement Capital Covenant, the Corporation may amend
such Replacement Capital Covenant without the consent of the Holders of the then-effective series
of Covered Debt if such amendment is not adverse to the Holders of the then-effective series of
Covered Debt and an officer of the Corporation delivers to such Holders a written certificate to
that effect.
C. The intent and effect of this Amendment is (i) to recognize, for purposes of calculating
qualified replacement capital under each Replacement Capital Covenant, the proceeds from the
issuance of any and all securities specified in Section 2 of such Replacement Capital Covenant
after the Amendment Effective Date, without regard to the date of such issuance, and (ii) to permit
the Corporation to designate any one of the series of Eligible Debt to become Covered Debt on and
after the Redesignation Date.
NOW, THEREFORE, the Corporation hereby amends each Replacement Capital Covenant as set forth
in this Amendment.
SECTION 1. Definitions. (a) Capitalized terms used herein (including in the Recitals) and
not otherwise amended or defined herein shall have the meanings set forth in the Replacement
Capital Covenants.
(b) The definitions of the terms “Eligible Debt,” “Eligible Senior Debt” and “Eligible
Subordinated Debt” as set forth in Schedule I to the 2006 Replacement Capital Covenant and the 2007
Replacement Capital Covenant are hereby deleted and replaced in their entirety with the following
definition:
“‘Eligible Debt’ means, at any time in respect of any issuer, each series of the
issuer’s then outstanding long-term indebtedness for money borrowed of such issuer that (a)
ranks senior to the ICONs, (b) has an outstanding aggregate principal amount of not less
than $100,000,000, and (c) 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 and (d) if issued by U.S. Bank, is fully and
unconditionally guaranteed by the Corporation (whether on a senior or subordinated basis).
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.”
(c) The definitions of the terms “Eligible Debt,” “Eligible Senior Debt” and “Eligible
Subordinated Debt” as set forth in Schedule I to the 2008 Replacement Capital Covenant and the 2010
Replacement Capital Covenant are hereby deleted and replaced in their entirety with the following
definition:
“‘Eligible Debt’ means, at any time in respect of any issuer, each series of the
issuer’s then outstanding long-term indebtedness for money borrowed of such issuer that (a)
ranks senior to the Shares, (b) has an outstanding aggregate principal amount of not less
than $100,000,000, and (c) 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 and (d) if issued by U.S. Bank, is fully and unconditionally guaranteed
by the Corporation (whether on a senior or subordinated basis). 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.”
(d) The definition of the term “Measurement Date” as set forth in Schedule I to each
Replacement Capital Covenant is hereby deleted and replaced in its entirety with the following
definition:
“‘Measurement Date’ means June 3, 2011.”
(e) The definition of the term “Measurement Period” as set forth in Schedule I to the 2007
Replacement Capital Covenant, the 2008 Replacement Capital Covenant and the 2010 Replacement
Capital Covenant is hereby deleted in its entirety.
(f) The definition of the term “NRSRO” as set forth in Schedule I to the 2006 Replacement
Capital Covenant is hereby deleted in its entirety.
(g) The definition of the term “Redesignation Date” as set forth in Schedule I to each
Replacement Capital Covenant is hereby deleted and replaced in its entirety with the following
definition:
“‘Redesignation Date’ means, as to the then-effective Covered Debt, the earlier of (i)
the date that is two years prior to the final maturity date of such Covered Debt and (ii)
if the Corporation or any of its Subsidiaries elects to repay or redeem, or any of its
Subsidiaries elects to purchase, such Covered Debt either in whole or in part with the
consequence that after giving effect to such repayment, redemption or repurchase the
outstanding aggregate principal amount of such Covered Debt is less than $100,000,000, the
applicable repayment, redemption or purchase date.”
2
SECTION 2. Amendment of Section 2 of each Replacement Capital Covenant. (a) Section 2 of the
2006 Replacement Capital Covenant is hereby amended by adding the following sentence at the
conclusion of Section 2:
“For the avoidance of doubt, any proceeds received from the sale of securities as set
forth in the foregoing clauses (i) through (iii) will not be counted more than once for the
purpose of the limitations set forth in this Section 2.”
(b) Section 2 of the 2007 Replacement Capital Covenant is hereby amended by replacing the
words “since the most recent Measurement Date (without double counting proceeds received in any
prior Measurement Period)” in subsections (i), (ii), (iii) and (iv) thereof with the words “since
the Measurement Date (without counting any received proceeds more than once for the purpose of the
limitations set forth in this Section 2);”.
(c) Section 2 of the 2008 Replacement Capital Covenant and the 2010 Replacement Capital
Covenant is hereby amended by replacing the words “since the most recent Measurement Date (without
double counting proceeds received in any prior Measurement Period)” immediately following Section
2(b)(ii) with the words “since the Measurement Date (without counting any received proceeds more
than once for the purpose of the limitations set forth in this Section 2);”.
SECTION 3. Redesignation of Covered Debt. (a) Section 3(b) of each Replacement Capital
Covenant is hereby deleted and replaced in its entirety with the following:
“(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) the Corporation shall designate one of such series to be the series of
Eligible Debt that will become the Covered Debt on and after such Redesignation Date;
(iii) the series of outstanding long-term indebtedness for money borrowed that is
determined to be Covered Debt pursuant to clause (ii) above shall be the Covered Debt for
purposes of this Replacement Capital Covenant for the period commencing on the related
Redesignation Date and counting 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
3
(iv) in connection with such identification of a new series of Covered Debt, the
Corporation shall, as provided for in Section 3(c), give a notice and file with the
Commission a current report on Form 8-K including or incorporating by reference this
Replacement Capital Covenant as an exhibit within the time frame provided for in such
section.”
(b) Section 3(c) of the 2007 Replacement Capital Covenant, the 2008 Replacement Capital
Covenant and the 2010 Replacement Capital Covenant is hereby deleted in its entirety and Section
3(d) is hereby re-designated as Section 3(c).
SECTION 4. Amendment of Section 4(a) of Replacement Capital Covenants. Clause (iii) of
Section 4(a) of the 2006 Replacement Capital Covenant and clause (ii) of Section 4(a) of the 2007
Replacement Capital Covenant, the 2008 Replacement Capital Covenant and 2010 Replacement Capital
Covenant are hereby deleted and replaced in their entirety with the following:
“the date on which neither the Corporation nor U.S. Bank has any series of outstanding
Eligible Debt.”
SECTION 5. Miscellaneous. (a) Except as expressly amended hereby, all of the provisions of
the Replacement Capital Covenants continue in full force and effect.
(b) This Amendment shall be governed and construed in accordance with the laws of the State of
New York.
[Signature Page Follows]
4
IN WITNESS WHEREOF, the Corporation has caused this Amendment to Replacement Capital Covenants
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 | |||||
| Title: Executive Vice President and Treasurer | ||||||
[Signature Page to Amendment to Replacement Capital Covenants]
5
