Third Supplemental Indenture

Exhibit 4.2

 

between

U.S. BANCORP

and

WILMINGTON TRUST COMPANY

Dated as of March 17, 2006

Supplement to Junior Subordinated Indenture, dated as of April 28, 2005, as supplemented
by that certain First Supplemental Indenture, dated as of August 3, 2005, and that certain
Second Supplemental Indenture dated as of December 29, 2005

 

TABLE OF CONTENTS

		ARTICLE I
		DEFINITIONS
Section 1.1		Definitions			2
		ARTICLE II
		GENERAL TERMS AND CONDITIONS OF THE NOTES
Section 2.1		Designation, Principal Amount and Authorized Denomination			6
Section 2.2		Maturity			6
Section 2.3		Form and Payment			6
Section 2.4		Notes Held by Collateral Agent and Custodial Agent; Global Notes; Adjustment of Global Notes			7
Section 2.5		Interest			8
Section 2.6		Redemption of the Notes			9
Section 2.7		Events of Default			9
Section 2.8		Notice of Defaults; Amount Payable upon Acceleration			10
Section 2.9		Securities Registrar; Paying Agent; Delegation of Trustee Duties			10
Section 2.10		Additional Covenants of the Company			11
Section 2.11		Forms of Agreements			12
		ARTICLE III
		REMARKETING AND RATE RESET PROCEDURES
Section 3.1		Obligation to Conduct Remarketing and Related Requirements			12
Section 3.2		Company Decisions in Connection with Remarketing			13
Section 3.3		Reset of Interest Rate in Connection with Remarketings and Related Changes in Terms			14
Section 3.4		Early Remarketing			15
Section 3.5		Company Announcements			15
Section 3.6		Supplemental Indenture			16
		ARTICLE IV
		EXPENSES
Section 4.1		Expenses			16
		ARTICLE V
		FORM OF NOTE
Section 5.1		Form of Notes			17

Supplemental Indenture

		ARTICLE VI
		ORIGINAL ISSUE OF NOTES
Section 6.1		Original Issue of Notes			25
Section 6.2		Calculation of Original Issue Discount			25
		ARTICLE VII
		SUBORDINATION
Section 7.1		Senior and Subordinated Debt			25
Section 7.2		Company Election to End Subordination			26
Section 7.3		Compliance with Federal Reserve Rules			26
Section 7.4		Extension of Rights, Privileges, etc			26
		ARTICLE VIII
		MISCELLANEOUS
Section 8.1		Effectiveness			26
Section 8.2		Successors and Assigns			27
Section 8.3		Further Assurances			27
Section 8.4		Effect of Recitals			27
Section 8.5		Ratification of Indenture			27
Section 8.6		Governing Law			27

Supplemental Indenture

     Third Supplemental Indenture, dated as of March 17, 2006, between U.S. Bancorp, a Delaware corporation (herein after called the “Company”), having its principal office at 800 Nicollet Mall, Minneapolis, Minnesota 55402, and Wilmington Trust Company, a Delaware banking corporation, as Trustee (hereinafter called the “Trustee”).

Recitals of the Company

          The Company and Delaware Trust Company, National Association (the “Original Trustee”) entered into a Junior Subordinated Indenture, dated as of April 28, 2005 (the “Base Indenture”), which was amended and supplemented by the First Supplemental Indenture, dated as of August 3, 2005, between the Company and the Original Trustee (the “First Supplemental Indenture”), which was further amended and supplemented by the Second Supplemental Indenture, dated as of December 29, 2005, between the Company, the Original Trustee and the Trustee (the “Second Supplemental Indenture,” and together with the First Supplemental Indenture and the Junior Subordinated Indenture, the “Indenture”).

          Section 9.1 of the Base Indenture provides that the Indenture may be amended or supplemented without the consent of any Holder to change or eliminate any of the provisions of the Base Indenture, provided that any such change or elimination shall not apply to any Outstanding Securities.

          The Company has delivered to the Trustee an Opinion of Counsel and an Officers’ Certificate pursuant to Section 9.3 of the Base Indenture to the effect that all conditions precedent provided for in the Base Indenture to the Trustee’s execution and delivery of this Third Supplemental Indenture have been complied with.

          USB Capital IX, a Delaware statutory trust (the “Trust”), has offered to the public its trust preferred securities known as Income Trust Securities (the “ITS”), which are beneficial interests in the Trust, and proposes to invest the proceeds from such offering, together with the proceeds of the issuance and sale by the Trust to the Company of its Common Securities (the “Trust Common Securities” and together with the ITS, the “Trust Securities”), in the Notes (as defined herein).

          The Notes will be subject to Remarketing, in connection with which certain terms of the Notes may be changed, all in accordance with the procedures to be set forth in a Remarketing Agreement, to be entered into prior to the first Remarketing (as amended or supplemented from time to time, the “Remarketing Agreement”), among the Company, Wilmington Trust Company, as property trustee of the Trust, and the remarketing agent named in the Remarketing Agreement (including any successor or replacement, the “Remarketing Agent”).

          The Company has requested that the Trustee execute and deliver this Third Supplemental Indenture and satisfy all requirements necessary to make this Third Supplemental Indenture a valid instrument in accordance with its terms, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company and all acts and things necessary have been done and performed to make this Third Supplemental Indenture enforceable in accordance with its terms, and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects.

          Now, therefore, this Third Supplemental Indenture witnesseth: For and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:

Supplemental Indenture

ARTICLE I

Section 1.1 Definitions.

          For all purposes of this Third Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:

     (a) Terms defined in the Base Indenture, the Trust Agreement or the Stock Purchase Contract Agreement have the same meaning when used in this Third Supplemental Indenture unless otherwise specified herein.

     (b) The terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular.

     (c) The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Third Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision, and any reference to an Article, Section or other subdivision refers to an Article, Section or other subdivision of this Third Supplemental Indenture.

          “Administrative Trustee” means, in respect of USB Capital IX, each individual identified as an “Administrative Trustee” in the Trust Agreement, solely in such individual’s capacity as Administrative Trustee of USB Capital IX under the Trust Agreement and not in such individual’s individual capacity, or any successor Administrative Trustee appointed as therein provided.

          “Collateral Agent” means U.S. Bank National Association, as Collateral Agent under the Collateral Agreement until a successor Collateral Agent shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Collateral Agent” shall mean the Person who is then the Collateral Agent thereunder.

          “Commercially Reasonable Efforts” by the Company to sell shares of its common stock or non-cumulative perpetual preferred stock means commercially reasonable efforts to complete the offer and sale of shares of its common stock or non-cumulative perpetual preferred stock, as the case may be, to third parties that are not affiliates of the Company in public offerings or private placements; provided that the Company shall be deemed to have used such Commercially Reasonable Efforts if a Market Disruption Event occurs and for so long as it continues regardless of whether the Company makes any offers or sales during such period.

          “Creditor” has the meaning specified in Section 4.1(b).

          “Custodial Agent” means U.S. Bank National Association, as Custodial Agent under the Collateral Agreement until a successor Custodial Agent shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Custodial Agent” shall mean the Person who is then the Custodial Agent thereunder.

          “Early Remarketing” has meaning specified in Section 3.4.

          An “Early Settlement Event” shall be deemed to have occurred if: (i) the Company’s “total risk-based capital ratio” is less than 10%, (ii) the Company’s “Tier 1 risk-based capital ratio” is less than 6%, (iii) the Company’s “leverage capital ratio” is less than 4%; (iv) the Federal Reserve, in its discretion,

Supplemental Indenture

anticipates that the Company may fail one or more of the capital tests referred to above in the near term and delivers a notice to the Company so stating; or (v) the Trust is dissolved pursuant to Section 9.2(c) of the Trust Agreement, where the related Early Settlement Event in the case of the tests described in each of (i), (ii) and (iii) above will be deemed to occur on the date the Company files a Form FR Y-9 showing in Schedule HC-R (or successor form) that the related capital measure has been failed and each such ratio will be determined as required pursuant to Appendix A to Regulation Y of the Federal Reserve Board, 12 C.F.R. Part 225.

          “Early Termination Event” means the dissolution of the Trust and the distribution of the Notes held by or on behalf of the Trust to the holders of the Trust Securities in accordance with Section 9.4 of the Trust Agreement.

          “Failed Remarketing” means a Final Remarketing that is not Successful.

          “Final Remarketing” means (i) a Remarketing for a settlement date on April 15, 2012 (or if such day is not a Business Day, the immediately succeeding Business Day), (ii) in the case of an Early Remarketing, the fifth scheduled Remarketing or (iii) in the case of an Early Remarketing in connection with clause (v) of the definition of Early Settlement Event, the first Remarketing.

          “Fixed Rate Reset Cap”, as of any Remarketing Settlement Date, means the prevailing market yield, as determined by the Remarketing Agent, of the benchmark U.S. treasury security having a remaining maturity that most closely corresponds to the period from such date until the earliest date on which the Notes may be redeemed at the option of the Company in the event of a Successful Remarketing, plus 350 basis points, or 3.50%, per annum.

          “Floating Rate Reset Cap” means 302 basis points, or 3.02%, per annum.

          “Global Notes” has the meaning specified in Section 2.4.

          “Interest Payment Date” shall have the meaning specified in Section 5.1.

          “Interest Period” means the period from and including the most recent Interest Payment Date to which interest has been paid or duly made available for payment (or March 17, 2006 if no interest has been paid or been duly made available for payment) to, but excluding, the next succeeding Interest Payment Date or, if earlier, then the Stated Maturity Date of the Notes.

          “ITS” means each of the Normal ITS, the Stripped ITS and the Capital ITS.

          “Lead Bank” means U.S. Bank National Association, and its successors (whether by consolidation, merger, conversion, transfer of substantially all of its assets and business or otherwise).

          “Market Disruption Event” means the occurrence or existence of any of the following events or sets of circumstances:

     (i) the Company would be required to obtain the consent or approval of its shareholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue shares of common stock or perpetual preferred stock and the Company fails to obtain that consent or approval notwithstanding the Company’s commercially reasonable efforts to obtain that consent or approval (including, without limitation, the Company failing to obtain the approval of the Federal Reserve, after having notified the Federal Reserve and

Supplemental Indenture

sought such approval in accordance with the terms of the instrument or instruments under which the relevant securities are to be issued);

     (ii) trading in securities generally on the New York Stock Exchange, the American Stock Exchange, the Nasdaq Stock Market or any other national securities, futures or options exchange or in the over-the-counter market, or trading in any of the Company’s securities (or any options or futures contracts related to such securities) on any exchange or in the over-the-counter market shall have been suspended or the settlement of such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the SEC, by such exchange or by any other regulatory body or governmental authority having jurisdiction;

     (iii) a banking moratorium shall have been declared by the federal or state authorities of the United States such that market trading has been disrupted or ceased;

     (iv) a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States such that market trading has been disrupted or ceased;

     (v) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States, there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other national or international calamity or crisis such that market trading has been disrupted or ceased;

     (vi) there shall have occurred such a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities, or the effect of international conditions on the financial markets in the United States shall be such, as to make it, in the Company’s reasonable judgment, impracticable or inadvisable to proceed with the offer and sale of shares of its common stock or preferred stock; or

     (vii) an event occurs and is continuing as a result of which the offering document for such offer and sale of securities would, in the Company’s judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and either (a) the disclosure of that event at such time, in the Company’s judgment, is not otherwise required by law and would have a material adverse effect on the Company’s business or (b) the disclosure relates to a previously undisclosed proposed or pending material business transaction, the disclosure of which would impede the Company’s ability to consummate such transaction, provided that no single suspension period contemplated by this subsection (vii) shall exceed 90 consecutive days and multiple suspension periods contemplated by this subsection (vii) shall not exceed an aggregate of 180 days in any 360-day period.

          “Notes” has the meaning specified in Section 2.1.

          “Paying Agent”, when used with respect to the Notes, means U.S. Bank National Association or any other Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company.

          “Paying Agent Office” means the office of the applicable Paying Agent at which at any particular time its corporate agency business shall principally be administered in a Place of Payment, which

Supplemental Indenture

office at the date hereof in the case of U.S. Bank National Association, in its capacity as Paying Agent with respect to the Notes under the Base Indenture and this Third Supplemental Indenture, is located at 100 Wall Street, 16th Floor, New York, New York 10005; Attention: Corporate Trust Services.

          “Preferred Stock” means the Series A Non-Cumulative Perpetual Preferred Stock, $100,000 liquidation preference per share and $1.00 par value per share, of the Company.

          “qualified floating rate” has the meaning specified in Section 3.3(a)(iii).

          “Released Note” has the meaning specified in Section 2.4(d).

          “Remarketed Note” has the meaning specified in Section 2.4(c).

          “Remarketing” means a remarketing of Notes pursuant to Article III and the Remarketing Agreement.

          “Remarketing Date” means the third Business Day preceding each of March 15, June 15, September 15 and December 15, 2011 and March 15, 2012 until the settlement of a Successful Remarketing, or if an Early Settlement Event shall have occurred, each of the dates determined in accordance with Section 3.4.

          “Remarketing Settlement Date” means the third Business Day following the Remarketing Date for a Successful Remarketing.

          “Reset Rate” means, if the Notes are remarked as fixed rate notes, the rate of interest on the Notes, if any, set in a Remarketing, as specified in Section 3.3(a).

          The “Remarketing Value” of each Note will be equal to the present value on the Remarketing Settlement Date of an amount equal to the principal amount of, plus the interest payable on, such Note on the next Regular Distribution Date, including any deferred interest, assuming for this purpose, even if not true, that the interest rate on the Notes remains at the rate in effect immediately prior to the Remarketing and all accrued and unpaid interest on the Notes is paid in cash on such date, determined using a discount rate of 5.32% per annum.

          “Reset Spread” means, if the Notes are remarked as floating rate notes, the spread, if any, set in a Remarketing, as specified in Section 3.3(a).

          “Responsible Officer” means, when used with respect to U.S. Bank National Association in its capacity as Paying Agent, any officer within the Corporate Trust Services department (or any successor department, unit or division of U.S. Bank National Association) assigned to the Paying Agent Office of U.S. Bank National Association, its capacity as Paying Agent, who has direct responsibility for the administration of the Paying Agent functions of the Base Indenture and this Third Supplemental Indenture.

          “Securities Intermediary” means U.S. Bank National Association, as Securities Intermediary under the Collateral Agreement until a successor Securities Intermediary shall have become such pursuant to the applicable provisions of the Collateral Agreement, and thereafter “Securities Intermediary” shall mean the Person who is then the Securities Intermediary thereunder.

          “Securities Registrar Office” means the office of the applicable Securities Registrar at which at any particular time its corporate agency business shall principally be administered, which office at the date hereof in the case of U.S. Bank National Association, in its capacity as Securities Registrar under

Supplemental Indenture

the Indenture, is located at 100 Wall Street, 16th Floor, New York, New York 10005; Attention: Corporate Trust Services.

          “Securities Act” means the Securities Act of 1933 (or any successor statute), as it may be amended from time to time.

          “Stated Maturity Date” means April 15, 2042 or such earlier date as may be specified by the Company following a Remarketing in accordance with Article III.

          “Stock Purchase Contract Agreement” means the Stock Purchase Contract Agreement, dated as of March 17, 2006, between the Company and the Trust acting through the Property Trustee.

          “Subjected Note” has the meaning specified in Section 2.4(e).

          “Successful” has the meaning specified in Section 3.5(a).

          “Third Supplemental Indenture” means this instrument as originally executed or as it may form time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.

          “Trust Agreement” means the Amended and Restated Trust Agreement, dated as of March 17, 2006, among the Company, as Depositor, the Property Trustee, the Delaware Trustee, and the Administrative Trustees (each as named therein).

          “Unsuccessful” has the meaning specified in Section 3.5(b).

          “Underwriting Agreement” means the Underwriting Agreement, dated as of March 14, 2006, among the Trust, the Company, and the underwriters named therein.

ARTICLE II

Section 2.1 Designation, Principal Amount and Authorized Denomination.

          There is hereby authorized a series of Securities designated the Remarketable Junior Subordinated Notes due 2042 (the “Notes”), limited in aggregate principal amount to $1,251,000,000, which amount to be issued shall be as set forth in any Company Order for the authentication and delivery of Notes pursuant to the Indenture. The denominations in which Notes shall be issuable is $1,000 principal amount and integral multiples thereof.

Section 2.2 Maturity.

          The Stated Maturity of the Notes will be April 15, 2042, subject to change as provided in Article III.

Section 2.3 Form and Payment.

          Except as provided in Section 2.4, the Notes shall be issued in fully registered definitive form without interest coupons. Principal of and interest on the Notes issued in definitive form will be payable, the transfer of such Notes will be registrable and such Notes will be exchangeable for Notes

Supplemental Indenture

bearing identical terms and provisions and notices and demands to or upon the Company in respect of the Notes and the Base Indenture, as supplemented by this Third Supplemental Indenture, may be served at the Corporate Trust Office of the Trustee, and the Company appoints the Trustee as its agent for the foregoing purposes; provided that payment of interest may be made at the option of the Company by check mailed to the Holder at such address as shall appear in the Securities Register or by wire transfer in immediately available funds to the bank account number of the Holder specified in writing by the Holder and entered in the Securities Register by the Securities Registrar. Notwithstanding the foregoing, so long as the Holder of any Note is the Collateral Agent or the Custodial Agent, the payment of the principal of and interest (including expenses and taxes of the Trust set forth in Section 4.1, if any) on such Notes held by the Collateral Agent or the Custodial Agent will be made at the Paying Agent Office or such place and to such account as may be designated in writing by the Collateral Agent or the Custodial Agent, as the case may be. The Notes may be presented for registration of transfer or exchange at the Securities Registrar Office.

Section 2.4 Notes Held by Collateral Agent and Custodial Agent; Global Notes; Adjustment of Global Notes.

     (a) The Notes shall be issued initially in fully registered form in the name of the Securities Intermediary and the Custodial Agent, in their respective capacities as such. For so long as such Notes are held by the Collateral Agent and the Custodial Agent, each such Note shall represent the principal amount so indicated in the Securities Register, provided that the aggregate principal amount of all such Notes shall at all times equal the principal amount issued in accordance with Section 2.1.

     (b) At any time on or after the first to occur of the Remarketing Settlement Date, an Early Termination Event or the redemption of the Capital ITS by the Trust in exchange for Notes, the Notes in definitive form may be presented to the Securities Registrar for exchange for one or more global Notes in an aggregate principal amount equal to the aggregate principal amount of the Notes so presented (a “Global Note”), to be registered in the name of the Depositary, or its nominee, and delivered to the Depositary for crediting to the accounts of its participants pursuant to the instructions of the Administrative Trustees. The Company upon any such presentation shall execute one or more Global Notes in such aggregate principal amount and deliver the same to the Trustee for authentication and delivery in accordance with the Indenture. The Trustee, upon receipt of such Global Notes, together with an Officers’ Certificate requesting authentication, will authenticate such Global Notes and deliver them to the Securities Registrar, as custodian for the Depositary. Payments on the Notes issued as Global Notes will be made to the Depositary.

     (c) In the event that (i) any Pledged Notes for which no election has been validly made pursuant to Section 8.02(a) of the Collateral Agreement are to be released from the Pledge and transferred to the Remarketing Agent pursuant to Section 8.02(b) of the Collateral Agreement or (ii) any Pledged Notes for which an election has been validly made pursuant to Section 8.03(a) of the Collateral Agreement are to be delivered to the Remarketing Agent pursuant to Section 8.03(b) of the Collateral Agreement (collectively, the “Remarketed Notes”), such transfers shall be evidenced by an endorsement by the Securities Registrar on the Notes held by the Collateral Agent and the Custodial Agent, respectively, reflecting a reduction in the principal amount of such Notes equal in amount to the principal amount of the Remarketed Notes. The Securities Registrar shall confirm any such reduced principal amount by faxing or otherwise delivering a photocopy of such endorsement made on the Notes evidencing such reduced or increased principal amount to the Trustee at the facsimile number or address of the Property Trustee provided for notices to the Property Trustee in the Collateral Agreement (or at such other facsimile number or address as the Trustee shall provide to the Securities Registrar). Upon receipt of such confirmation, the Trustee shall instruct the Securities Registrar to increase the principal amount of a Global Note in an

Supplemental Indenture

amount equal to the aggregate principal amount of the Remarketed Notes by an endorsement made by the Securities Registrar on such Global Note to reflect such increase.

     (d) In the event that any Pledged Note is to be released from the Pledge and transferred to the Custodial Account pursuant to Section 6.02(a) of the Collateral Agreement (a “Released Note”), as a result of the exchange of Normal ITS and Qualifying Treasury Securities for Stripped ITS and Capital ITS as provided in said Section 6.02(a) of the Collateral Agreement, such transfer shall be evidenced by an endorsement by the Collateral Agent or the Securities Registrar on the Note held by the Collateral Agent reflecting a reduction in the principal amount of such Note equal in amount to the principal amount of the Released Note. The Collateral Agent shall confirm any such reduced principal amount by faxing or otherwise delivering a photocopy of such endorsement made on the Note evidencing such reduced principal amount to the Trustee at the facsimile number or address of the Trustee provided for notices to the Property Trustee in the Collateral Agreement (or at such other facsimile number or address as the Property Trustee shall provide to the Collateral Agent). Upon receipt of such confirmation, the Trustee shall instruct the Custodial Agent or Securities Registrar to increase the principal amount of a Global Note held by the Custodial Agent in an amount equal to the reduced principal amount by an endorsement made by the Custodial Agent or Securities Registrar on such Global Note to reflect such increase.

     (e) In the event that a Note is transferred to the Collateral Account pursuant to Section 6.03(b)(i) of the Collateral Agreement (a “Subjected Note”) in connection with the exchange of Stripped ITS and Capital ITS for Normal ITS and Qualifying Treasury Securities as provided in Section 6.03 of the Collateral Agreement, such transfer shall be evidenced by an endorsement by the Collateral Agent or the Securities Registrar on the Note held by the Collateral Agent reflecting an increase in the principal amount of such Note equal in amount to the principal amount of such Subjected Note. The Collateral Agent shall confirm any such increased principal amount by faxing or otherwise delivering a photocopy of such endorsement made on the Note evidencing such increased principal amount to the Trustee at the facsimile number or address of the Trustee provided for notices to the Trustee in the Collateral Agreement (or at such other facsimile number or address as the Trustee shall provide to the Collateral Agent). Upon receipt of such confirmation, the Trustee shall instruct the Custodial Agent or the Securities Registrar to decrease the principal amount of a Global Note held by the Custodial Agent in an amount equal to the increased principal amount by an endorsement made by the Custodial Agent or Securities Registrar on such Global Note to reflect such decrease.

Section 2.5 Interest.

     (a) Each Note will bear interest as provided in the form of Notes set forth in Section 5.1.

     (b) The Company shall have the right to defer the payment of interest on the Notes, as provided in Section 3.11 of the Base Indenture, for one or more Extension Periods extending to not later than 14 consecutive Interest Payment Dates (or the equivalent if interest periods are not at the time semi-annual), i.e., seven years after the commencement of such Extension Period. The Paying Agent shall give notice of the Company’s election to begin or extend any Extension Period to the Holders of the Outstanding Notes in the form of a notice thereof as shall have been prepared by the Company and furnished to the Paying Agent.

     (c) If on the Stock Purchase Date the Company has not paid in cash all interest accrued on the Notes and there is a Failed Remarketing, the Company will pay the Trust such deferred interest on the Stock Purchase Date in subordinated notes that have a principal amount equal to the aggregate amount of deferred interest as of the Stock Purchase Date, mature on the later of April 15, 2014 and five years after commencement of the related Extension Period, bear interest at a rate per annum equal to the rate of interest

Supplemental Indenture

originally in effect on the Notes (subject to deferral on the same basis as the Notes, are subordinate and rank junior in right of payment and upon liquidation to the Company’s obligations to the holders of Senior and Subordinated Debt of the Company on the same basis as the Notes and are redeemable by the Company at any time or from time to time prior to their stated maturity at a redemption price equal to the principal amount thereof plus any accrued and unpaid interest to the date of redemption; provided, further, that the Company shall register such subordinated notes under the Securities Act prior to the delivery thereof to the Property Trustee unless they may be so delivered pursuant to an exemption from registration thereunder.

Section 2.6 Redemption of the Notes.

     (a) The Notes shall not be subject to the right of redemption specified in Section 11.7 of the Base Indenture.

     (b) The Company may from time to time redeem Notes, in whole or in part, at any date on or after April 15, 2015, at a redemption price equal to 100% of the principal amount thereof plus accrued and unpaid interest, including deferred interest (if any), to the date of redemption, in accordance with Article XI of the Base Indenture. In connection with a Remarketing, the Company may change the date after which it may redeem Notes to a later date or change the redemption price in accordance with Article III.

     (c) The Notes are not entitled to any sinking fund payments.

Section 2.7 Events of Default.

          Section 5.1 of the Base Indenture setting forth the “Events of Default” is hereby amended and restated in its entirety as follows:

          “Event of Default,” wherever used herein with respect to the Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):

     (1) default in the payment of any interest upon any Security of that series, including any Additional Interest in respect thereof, when it becomes due, and continuance of such default for a period of 30 days (subject to the deferral of any due date in the case of an Extension Period); or

     (2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or

     (3) the termination of a USB Trust without redeeming the Outstanding Trust Preferred Securities issued by such USB Trust, a distribution of all the Securities of any series issued to a USB Trust to the holders of the Outstanding Trust Preferred Securities of such USB Trust entitled to the distribution thereof or the assumption of the Company’s obligations under the Securities by its successor; or

     (4) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property or ordering the winding up or liquidation of its

Supplemental Indenture

affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days; or

     (5) a court or other governmental agency or body having jurisdiction in the premises shall enter a decree or order for the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to the Lead Bank or all or substantially all of the property of the Lead Bank, and such decree or order shall have remained in force undischarged or unstayed for a period of 60 days; or

     (6) the institution by the Company of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law, or the consent by it to the filing of any such petition or to the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due and its willingness to be adjudicated a bankrupt, or the taking of corporate action by the Company in furtherance of any such action; or

     (7) the Lead Bank shall consent to the appointment of a custodian, received, liquidator, assignee, trustee, sequestrator or other similar official (other than a conservator) in any liquidation, insolvency or similar proceeding with respect to the Lead Bank or all or substantially all of the property of the Lead Bank; or

     (8) any other Event of Default provided with respect to Securities of that series.

Section 2.8 Notice of Defaults; Amount Payable upon Acceleration.

          So long as any Notes are held by or on behalf of the Trust, the Trustee shall provide to the holders of the Normal ITS, Trust Common Securities and Capital ITS such notices as it shall from time to time provide under Section 6.2 of the Base Indenture. In addition, the Trustee shall provide to the holders of the Normal ITS, Trust Common Securities and Capital ITS notice of any Event of Default or event that, with the giving of notice or lapse of time, or both, would become an Event of Default with respect to the Notes within 30 days after the actual knowledge of a Responsible Officer of the Trustee of such Event of Default or other event.

Section 2.9 Securities Registrar; Paying Agent; Delegation of Trustee Duties.

     (a) (i) The first paragraph in Section 3.5 of the Base Indenture shall be amended and restated in its entirety to read as follows:

“The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. Such register is herein sometimes referred to as the ‘Securities Register.’ The Company shall designate one Person to maintain the Securities Register for the securities of each series on a consolidated basis, and such Person is referred to herein, with respect to such series, as the ‘Securities Registrar.’”

Supplemental Indenture

          (ii) The final paragraph in Section 3.5 of the Base Indenture shall be amended and restated in its entirety to read as follows:

“Neither the Company nor the Trustee shall be required, pursuant to the provisions of this Section, (a) to issue, register the transfer of or exchange any Security of any series during a period beginning at the opening of business 15 days before the day of selection for redemption of Securities pursuant to Article XI and ending at the close of business on the day of mailing of notice of redemption or (b) to transfer or exchange any Security so selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, any portion thereof not to be redeemed.”

     (b) The Company appoints U.S. Bank National Association, as Securities Registrar and Paying Agent with respect to the Notes for so long as it shall act as Collateral Agent and Custodial Agent and is the Holder of the Notes in any of such capacities.

     (c) Notwithstanding any provision contained herein, to the extent permitted by applicable law, the Trustee may delegate its duty to provide such notices and to perform such other duties as may be required to be provided or performed by the Trustee under the Base Indenture and this Third Supplemental Indenture, and, to the extent such obligation has been so delegated, the Trustee shall not be responsible for monitoring the compliance of, nor be liable for the default or misconduct of, any such designee.

Section 2.10 Additional Covenants of the Company.

     (a) The Company covenants and agrees with each Holder of the Notes that if it defers payment of interest on any Interest Payment Date on or prior to the Stock Purchase Date, commencing with the date two years after the beginning of such Extension Period, the Company shall pay such deferred interest only out of the net proceeds of shares of its common stock or non-cumulative perpetual preferred stock it receives during the 180 days preceding the date of payment of such deferred interest, that it shall notify the Federal Reserve if this covenant is applicable, and, subject to the approval of the Federal Reserve, that it shall continuously use its Commercially Reasonable Efforts to sell shares of its common stock or non-cumulative perpetual preferred stock not later than the termination of such Extension Period in an amount so that the net proceeds of such sale, when applied to such deferred payments of interest, will cause such unpaid deferred interest payments to be paid in full and (unless the Federal Reserve instructs otherwise) apply the proceeds of such sale to pay the deferred amounts (provided that the Company shall not in any event be required to pay interest on the Notes at the time when the payment of such interest would violate the terms of any securities issued by the Company or any of its subsidiaries or the terms of a contract binding on the Company or any of its subsidiaries); provided, however, that the forgoing covenant shall not apply with respect to any interest on the Notes that is deferred and unpaid as of the date of a consummation of any business combination where, immediate following its consummation, over 50% of the surviving entity’s voting stock is owned by the shareholders of the other party to the business combination. For the avoidance of doubt, the Company’s failure to raise sufficient eligible proceeds or its use of other sources to fund such deferred interest payments in accordance with the foregoing covenant, by itself, shall not constitute an Event of Default under the Indenture, as supplemented.

     (b) Notwithstanding Section 2.10(a), if the Company is required to conduct a sale of shares of its common stock and/or non-cumulative perpetual preferred stock in order to pay amounts due and payable under any instruments or other securities that rank pari passu as to interest or distributions with the Notes, then the Company shall apply such proceeds to deferred interest payments on the Notes, on the one hand, and such other pari passu securities, on the other hand, on a ratable basis in proportion to the total amounts

Supplemental Indenture

that are due on the Notes and such securities before the Company shall be relieved of its obligation to conduct the sale and shares of its common stock and/or non-cumulative perpetual preferred stock and apply the proceeds thereof to such securities.

     (c) If the Company issues subordinated notes in respect of deferred interest payments pursuant to Section 2.5(c), Sections 2.10(a) and (b) will apply to the payment of interest on and principal of these subordinated notes except that references to termination of the Extension Period shall instead be to the maturity date of these subordinated notes.

     (d) Notwithstanding anything in the Indenture or the Notes, the Company covenants and agrees with each Holder of the Notes that it shall not incur any additional indebtedness for borrowed money that by its terms ranks pari passu in all respects with or junior in interest to the Notes except in compliance with the then applicable regulations and guidelines of the Federal Reserve.

Section 2.11 Forms of Agreements.

          Section 3.1(r) or the Base Indenture shall be amended and restated in its entirety to read as follows:

“the form or forms of the Trust Agreement, Amended and Restated Trust Agreement and Guarantee Agreement, if different from the forms attached hereto as Annexes A, B and C, respectively, and determined by the Company to be necessary for the issuance of the Securities;”

ARTICLE III

Section 3.1 Obligation to Conduct Remarketing and Related Requirements.

     (a) The Company and the Property Trustee (on behalf of the Trust) shall appoint the Remarketing Agent and entered into a Remarketing Agreement prior to the first Remarketing to effect the Remarketing of the Notes upon the terms, conditions and other provisions provided therein and in the Trust Agreement and the Collateral Agreement.

     (b) The Remarketing Agreement shall provide that the Company and the Remarketing Agent agree to use commercially reasonable efforts to effect the Remarketing of the Notes as described in this Article III, and in connection therewith, the Remarketing Agent will use its commercially reasonable efforts to obtain a price for all the Remarketed Notes that results in proceeds, net of any remarketing fee, of at least 100% of their aggregate Remarketing Value. If in the judgment of counsel to the Company or the Remarketing Agent it is necessary for a registration statement covering the Notes to have been filed and have become effective under the Securities Act in order to effect the Remarketing, then the Company shall (i) use commercially reasonable efforts to ensure that a registration statement covering the full principal amount of Notes to be remarketed shall have become effective in a form that will enable the Remarketing Agent to rely on it in connection with the Remarketing or (ii) effect such Remarketing pursuant to Rule 144A (if available) under the Securities Act or another available exemption from the registration requirements under the Securities Act.

Supplemental Indenture

Section 3.2 Company Decisions in Connection with Remarketing.

          In connection with Remarketings, the Company shall have the right hereunder, subject to Section 3.3(a), without the consent of any Holder of the Notes, to change certain terms of the Notes as provided below in this Section 3.2. By not later than the 21^st day prior to each Remarketing Date, the Company will specify the following information or decisions in a notice to the Remarketing Agent, the Collateral Agent, the Custodial Agent, the Property Trustee (on behalf of the Trust) and the Trustee (clauses (a) through (e) applying only if the Remarketing is Successful and clause (f) applying only in the case of a Failed Remarketing):

     (a) whether the Stated Maturity Date will remain at April 15, 2042 or will be changed to an earlier date (specifying such date if applicable); provided that the Stated Maturity Date may not be changed to a date earlier than the earlier of (i) April 15, 2015 and (ii) if the Remarketing Settlement Date occurs during an Extension Period, the seventh anniversary of the first day of such Extension Period; and provided, further, that no redemption price may be less than the principal plus accrued and unpaid interest (including Additional Interest) on the Notes;

     (b) whether to change the date after which the Notes will be redeemable at the Company’s option and the redemption price or prices; provided that no redemption date for the Notes may be earlier than the earlier of (i) April 15, 2015 and (ii) if the Remarketing Settlement Date occurs during an Extension Period, the seventh anniversary of the first day of such Extension Period;

     (c) whether in connection with an Early Remarketing that is not the first scheduled Remarketing, the Company is exercising its right under Section 7.2 to cause the subordination provisions in the Base Indenture to cease to apply to the Notes, if the Remarketing is Successful, from and after the Remarketing Settlement Date and if so, whether it also elects that the Notes shall no longer be subject to the interest deferral provisions of Section 3.11 of the Base Indenture;

     (d) whether the Notes will be remarketed as fixed rate notes or floating rate notes;

     (e) if the Notes will be remarketed as floating rate notes, the applicable index (which must be a qualified floating rate) and the interest payment dates and manner of calculation of interest on the Notes, which the Company may change to correspond with the market conventions applicable to notes bearing interest at rates based on the applicable index; and

     (f) whether following a Failed Remarketing:

     (i) the Stated Maturity Date will remain at April 15, 2042 or will be changed to an earlier date, which date shall not be earlier than April 15, 2015 (specifying such date if applicable); and

     (ii) the date after which the Notes will be redeemable at the Company’s option will be changed (which date shall not be earlier than April 15, 2015) and the redemption price or prices;

provided that if the Failed Remarketing occurs during an Extension Period any changed Stated Maturity Date of the Notes determined pursuant to clause (i) or early redemption date determined pursuant to clause (ii) may not be earlier than the seventh anniversary of the first day of such Extension Period.

          Any such elections made by the Company pursuant to clauses (a) through (e) shall, upon successful completion of a Remarketing, automatically apply and come into effect in respect of the Notes as of the Remarketing Settlement Date and any such elections made by the Company pursuant to clause (f) in

-13-

connection with a Failed Remarketing shall come into effect in respect of the Notes upon the announcement by the Company that the Final Remarketing is a Failed Remarketing.

Section 3.3 Reset of Interest Rate in Connection with Remarketings and Related Changes in Terms.

     (a) As part of and in connection with each Remarketing, the Remarketing Agent shall determine the Reset Rate or Reset Spread on the Notes, subject to Sections 3.3(b) through (e), pursuant to the Remarketing Agreement and in accordance with the other provisions of this Article III, that will apply to all Notes (whether or not sold in the Remarketing) if such Remarketing is Successful for each Interest Period or portion thereof commencing on or after such Remarketing Settlement Date, subject to the following provisions and limitations:

     (i) in connection with a Remarketing that is not a Final Remarketing, (A) if the Notes are remarketed as fixed rate notes, the Reset Rate may not exceed the Fixed Rate Reset Cap and (B) if the Notes are remarketed as floating rate notes, the Reset Spread may not exceed the Floating Rate Reset Cap;

     (ii) the interest rate on the Notes may not at any time be less than 0% per annum; and

     (iii) if (A) the interest rate on the Notes is not a fixed rate or a “qualified floating rate” (as defined in U.S. Treasury regulations section 1.1275-5(b)), (B) interest on the Notes is not unconditionally payable at intervals of no more than one year through the remaining term of the Notes, or (C) the redemption price of the Notes is not their principal amount (disregarding a customary call premium that is fixed or objectively determinable based on a qualified floating rate), then the Company shall have received a written opinion of Squire, Sanders & Dempsey LLP or other nationally recognized tax counsel experienced in such matters to the effect that the discussion contained in the Prospectus under the heading “Certain U.S. Federal Income Tax Consequences” is materially correct, taking into account all of the terms of the Notes following the Remarketing.

     (b) If the Remarketing has been determined to be Successful in accordance with Section 3.5(a), by approximately 4:30 P.M., New York City time, on any Remarketing Date, the Remarketing Agent shall notify the Company, the Collateral Agent, the Custodial Agent, the Property Trustee (on behalf of the Trust) and the Trustee that the Remarketing was Successful and the Reset Rate or Reset Spread determined as part of such Remarketing in accordance with this Article III.

     (c) If a Remarketing is Successful, then commencing with the related Remarketing Settlement Date the interest rate on the Notes shall be reset to the rate, determined in accordance with this Article III pursuant to such Remarketing and the other changes, if any, in the terms of the Notes as notified by the Company pursuant to Section 3.2, shall become effective in accordance with this Article III.

     (d) If a Remarketing other than the Final Remarketing is not Successful:

     (i) no Notes will be sold in such Remarketing;

     (ii) the interest rate will remain unchanged unless and until it is reset pursuant to a subsequent Remarketing in accordance with this Article III;

     (iii) the other changes, if any, in the terms of the Notes, as notified by the Company pursuant to Section 3.2, shall not become effective; and

Supplemental Indenture

     (iv) the Company and the Remarketing Agent shall attempt another Remarketing on the next Remarketing Date.

     (e) Upon the occurrence of a Failed Remarketing:

     (i) no Notes will be sold in such Remarketing and no further attempts at Remarketing shall be made;

     (ii) the interest rate will remain unchanged and the Notes will continue to bear interest at the interest rate otherwise in effect, payable on the dates set forth in the Notes, subject to Section 2.5(b);

     (iii) the other changes, if any, in the terms of the Notes as notified by the Company pursuant to clauses (a) through (e) of the second sentence of Section 3.2, shall not become effective;

     (iv) the Stated Maturity Date and early redemption date for the Notes will change in accordance with clause (f) of the second sentence of Section 3.2, as applicable;

     (v) in the case of Notes corresponding to Normal ITS and Trust Common Securities, such Notes will be applied in satisfaction of the Trust’s obligations under Stock Purchase Contracts in accordance with the Collateral Agreement; and

     (vi) in the case of Notes corresponding to Capital ITS, such Notes will be returned to the Custodial Agent in accordance with the Collateral Agreement.

Section 3.4 Early Remarketing.

          If an Early Settlement Event occurs prior to the Stock Purchase Date, the Remarketing Dates shall be the third Business Day prior to March 15, June 15, September 15 or December 15, commencing on the first such date that is at least 30 days after the occurrence of such Early Settlement Event, and concluding with the earlier to occur of the fifth such date and a Successful Remarketing; provided that in the case of an Early Settlement Event of the type described in clause (v) of the definition of such term, there shall be only one Remarketing Date and the Reset Rate or Reset Spread shall not be subject to the Fixed Rate Reset Cap or Floating Rate Reset Cap, as the case may be, and if the Remarketing conducted on such date is not Successful, it shall be a Failed Remarketing and the Stock Purchase Date shall be the next succeeding February 15, May 15, August 15 or November 15 (or if such day is not a Business Day, the next Business Day).

Section 3.5 Company Announcements.

     (a) If by 4:00 P.M., New York City time, on any Remarketing Date the Remarketing Agent has found buyers for all of the Notes offered in the Remarketing in accordance with this Article III, a Successful Remarketing shall be deemed to have occurred. In the event of a Successful Remarketing, the Company shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing was Successful and specifying the Reset Rate or Reset Spread and shall post such information on its website on the World Wide Web.

     (b) If, by 4:00 P.M., New York City time, on any Remarketing Date the Remarketing Agent is unable to find buyers for all of the Notes offered in such Remarketing, including any Remarketing that would qualify as a Final Remarketing, in accordance with this Article III, an Unsuccessful Remarketing

Supplemental Indenture

shall be deemed to have occurred. In the event of an Unsuccessful Remarketing, the Company shall issue a press release through Bloomberg Business News or other reasonable means of distribution stating that such Remarketing was an Unsuccessful Remarketing, and publish such information on its website on the World Wide Web.

Section 3.6 Supplemental Indenture.

          Notwithstanding any provision of the Base Indenture to the contrary, the Company and the Trustee may enter into a supplemental indenture without the consent of any Holder of the Notes to reflect any modifications to the terms of the Notes pursuant to the terms of this Article III and to provide for the exchange of the Notes for Notes in the form reflecting such modifications and adopted pursuant to such supplemental indenture.

ARTICLE IV

Section 4.1 Expenses.

          In connection with the offering, sale and issuance of the Notes to the Trust on behalf of the Trust and in connection with the sale of the Trust Securities by the Trust, the Company, in its capacity as borrower with respect to the Notes, shall:

     (a) pay all costs and expenses relating to the offering, sale and issuance of the Notes, including commissions to the underwriters payable pursuant to the Underwriting Agreement and compensation of the Trustee under this Indenture in accordance with the provisions of this Indenture; and

     (b) be responsible for and shall pay all debts and obligations (except for any amounts owed to Holders of the ITS in their respective capacities as Holders) and all costs and expenses of the Trust (including, but not limited to, costs and expenses relating to the organization, maintenance and dissolution of the Trust), the offering, sale and issuance of the Trust Securities (including commissions to the underwriters in connection therewith), the fees and expenses (including reasonable counsel fees and expenses) of the Property Trustee, the Delaware Trustee, the Administrative Trustees, the Securities Registrar, and the Paying Agent, the costs and expenses relating to the operation of the Trust, including, without limitation, costs and expenses of accountants, attorneys, statistical or bookkeeping services, expenses for printing and engraving and computing or accounting equipment, paying agent(s), registrar(s), transfer agent(s), duplicating, travel and telephone and other telecommunications expenses and costs and expenses incurred in connection with the acquisition, financing, and disposition of Trust assets and the enforcement by the Property Trustee of the rights of the Holders of the Notes.

          The Company’s obligations under this Section 4.1 shall be for the benefit of, and shall be enforceable by, any person to whom such debts, obligations and costs are owed (a “Creditor”) whether or not such Creditor has received notice hereof. Any such Creditor may enforce the Company’s obligations under this Section 4.1 directly against the Company and the Company irrevocably waives any right or remedy to require that any such Creditor take any action against the Trust or any other Person before proceeding against the Company. The Company agrees to execute such additional agreements as may be necessary or desirable in order to give full effect to the provisions of this Section 4.1.

Supplemental Indenture

ARTICLE V

Section 5.1 Form of Notes.

          The Notes are to be substantially in the following form and shall bear any legend required by Section 2.4 of the Base Indenture:

No.

Principal Amount: $

Issue Date:

CUSIP No. :

U.S. Bancorp

          U.S. Bancorp, a corporation organized and existing under the laws of Delaware (hereinafter called the “Company”, which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to                                         , or registered assigns, the principal sum of                                          Dollars on April 15, 2042 or such earlier date as may be specified by the Company following a Remarketing (such date is hereinafter referred to as the “Stated Maturity Date”). The Company further promises to pay interest on said principal sum from March 17, 2006, or from the most recent interest payment date (each such date, an “Interest Payment Date”) on which interest has been paid or duly provided for (subject to deferral as set forth herein), semi-annually in arrears on April 15 and October 15 of each year, commencing October 15, 2006, and on the Stock Purchase Date in the event of a Failed Remarketing if not otherwise an Interest Payment Date, at the rate of 5.539 % per annum (or after the Remarketing Settlement Date at such rate per annum as may be established in the Remarketing), until the principal hereof shall have become due and payable, plus Additional Interest, if any, until the principal hereof is paid or duly provided for or made available for payment. The amount of interest payable for any period less than a full Interest Period shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. In the event that any date on which interest is payable on this Note is not a Business Day, then a payment of the interest payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), in each case with the same force and effect as if made on the date the payment was originally payable. A “Business Day” shall mean any day other than a Saturday, Sunday, or any other day on which banking institutions and trust companies in New York, New York, Minneapolis, Minnesota or Wilmington, Delaware, are permitted or required by any applicable law to close. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest installment, which shall be the date that is the last day of the month immediately preceding the month in which such Interest Payment Date falls (whether or not a Business Day). Any such interest installment not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

Supplemental Indenture

          If the principal amount hereof or any portion of such principal amount is not paid when due (whether upon acceleration, upon the date set for payment of the Redemption Price or upon the Stated Maturity Date) or if interest due hereon (or any portion of such interest), is not paid when due, then in each such case the overdue amount shall, to the extent permitted by law, bear interest at the rate then borne by this Note for the applicable Interest Period, compounded at the end of such Interest Period, which interest shall accrue from the date such overdue amount was originally due to the date payment of such amount, including interest thereon, has been made or duly provided for. All such interest shall be payable as set forth in the Indenture.

          So long as no Event of Default has occurred and is continuing, the Company shall have the right at any time during the term of this Note to defer payment of interest on this Note, at any time or from time to time, for up to 14 consecutive semi-annual Interest Periods (or the equivalent thereof, if the Interest Periods are not then semi-annual) with respect to each deferral period (each an “Extension Period”), during which Extension Periods the Company shall have the right to make partial payments of interest on any Interest Payment Date, and at the end of which the Company shall pay all interest then accrued and unpaid (together with Additional Interest thereon to the extent permitted by applicable law); provided that no Extension Period shall extend beyond the Stated Maturity of the principal of this Note; provided, further, that during any such Extension Period, the Company shall not, and shall not permit any Subsidiary of the Company to, (i) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a liquidation payment with respect to, any shares of the Company’s capital stock, (ii) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt security of the Company that ranks pari passu in all respects with or junior in interest to the Note (except for partial payments of interest with respect to this Note) or (iii) make any guarantee payments with respect to any guarantee by the Company of the debt securities of any Subsidiary of the Company that by their terms rank pari passu in all respects with or junior in interest to this Note (other than (a) any repurchase, redemption or other acquisition of shares of the Company’s capital stock in connection with (1) any employment contract, benefit plan or other similar arrangement with or for the benefit of any one or more employees, officers, directors, consultants or independent contractors, (2) the satisfaction of the Company’s obligations pursuant to any contract entered into in the ordinary course prior to the beginning of the Extension Period, (3) a dividend reinvestment or stockholder purchase plan, or (4) the issuance of the Company’s capital stock, or securities convertible into or exercisable for such capital stock, as consideration in an acquisition transaction entered into prior to the applicable Extension Period; (b) any exchange, redemption or conversion of any class or series of the Company’s capital stock, or the capital stock of one of its subsidiaries, for any other class or series of the Company’s capital stock, or any class or series of the Company’s indebtedness for any class or series of its capital stock; (c) any purchase of fractional interests in shares of the Company’s capital stock pursuant to the conversion or exchange provisions of such capital stock or the securities being converted or exchanged; (d) any declaration of a dividend in connection with any rights plan, or the issuance of rights, stock or other property under any rights plan, or the redemption or repurchase of rights pursuant thereto; (e) payments under any USB Guarantee executed for the benefit of the holders of the ITS; or (f) any dividend in the form of stock, warrants, options or other rights where the dividend stock or stock issuable upon exercise of such warrants, options or other rights is the same stock as that on which the dividend is being paid or ranks equally with or junior to such stock). Prior to the termination of any such Extension Period, the Company may further extend the interest payment period, provided that no Extension Period shall exceed 14 consecutive semi-annual Interest Periods (or the equivalent thereof if this Note is not then bearing interest semi-annually) or extend beyond the Stated Maturity of the principal of this Note. Upon the termination of any such Extension Period and upon the payment of all accrued and unpaid interest then due, the Company may elect to begin a new Extension Period, subject to the above requirements. Subject to the last sentence of this paragraph, no interest shall be due and payable during an Extension Period except at the end thereof. The Company shall give the Trustee and the Paying Agent notice of its election to begin or extend any Extension Period at least ten Business

Supplemental Indenture