exv4w3



 







Exhibit 4.3




 





SECOND SUPPLEMENTAL INDENTURE




between




U.S. BANCORP




and




DELAWARE TRUST COMPANY, NATIONAL ASSOCIATION,

as Original Trustee




and




WILMINGTON TRUST COMPANY,

as Successor Trustee




DATED AS OF DECEMBER 29, 2005




 






supplementing that certain

Junior Subordinated Indenture

dated as of April 28, 2005,

as supplemented by that certain

First Supplemental Indenture

dated as of August 3, 2005




 





 









 








     SECOND SUPPLEMENTAL INDENTURE, dated as of December 29, 2005 (this “Supplemental Indenture”),
among U.S. BANCORP, a Delaware corporation (hereinafter called the “Company”), having its principal
office at 800 Nicollet Mall, Minneapolis, Minnesota 55402, DELAWARE TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association organized and existing under the laws of the United
States of America, as original Trustee (hereinafter called the “Original Trustee”) and WILMINGTON
TRUST COMPANY, a Delaware banking corporation, as successor Trustee (hereinafter called the
“Successor Trustee”).



RECITALS



     WHEREAS, the Company and the Original Trustee have entered into that certain Junior
Subordinated Indenture, dated as of April 28, 2005 (the “Base Indenture”), and that certain First
Supplemental Indenture, dated as of August 3, 2005 (the “First Supplemental Indenture” and,
together with the Base Indenture, the “Indenture”); providing for the issuance from time to time of
Securities;



     WHEREAS, the Original Trustee wishes to resign as Trustee with respect to all series of
Securities in accordance with Section 6.10 of the Indenture;



     WHEREAS, the Company wishes to appoint the Successor Trustee as successor Trustee in
accordance with Section 6.10(e) of the Indenture and the Successor Trustee wishes to accept such
appointment;



     WHEREAS, pursuant to Section 2.1 and 3.1 of the Indenture, the Company desires to provide for
the establishment of a new series of Securities under the Indenture to be known as its 6.35% Income
Capital Obligation NotesSM due 2065, the form and substance of such Securities and the
terms, provisions and conditions thereof to be set forth as provided in the Indenture and this
Supplemental Indenture;



     WHEREAS, the conditions set forth in the Indenture for the execution and delivery of this
Supplemental Indenture have been satisfied; and



     WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the
Company, the Original Trustee and the Successor Trustee, in accordance with its terms, and a valid
amendment of, and supplement to, the Indenture have been done.



     NOW, THEREFORE, in consideration of the premises and the purchase of the Securities by the
Holders thereof from time to time on or after the date hereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all such Holders, that the Indenture is
supplemented and amended, to the extent and for the purposes expressed herein, as follows:





 




			
	SM	 	Income Capital Obligation Notes is a
service mark of Merrill Lynch & Co., Inc.




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ARTICLE I




DEFINITIONS




     Section 1.1. Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Indenture.



     Section 1.2 In addition, the following terms used in this Supplemental Indenture have the
following respective meanings:



     “APM Period” means the period commencing immediately upon the termination of an
Extension Period consisting of 20 consecutive quarterly periods, and ending on the first Interest
Payment Date on which the Company has paid all accrued and unpaid interest.



     “Base Indenture” has the meaning set forth in the Declarations.



     “Change in 1940 Act Law” means a change (including any announced proposed change) in
law or regulation or a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority.



     “Company” has the meaning set forth in the Declarations.



     “Eligible Equity” means (i) shares of the Company’s common stock (including treasury
shares and shares of common stock sold pursuant to the Company’s dividend reinvestment plan and
employee benefit plans), and/or (ii) shares of the Company’s perpetual non-cumulative preferred
stock.



     “Eligible Equity Proceeds” means, for each Interest Payment Date, the net cash
proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other
expenses relating to the issuances) received by the Company during the 180-day period prior to such
Interest Payment Date from the sale or offering of Eligible Equity to persons that are not
Affiliates of the Company.



     “First Supplemental Indenture” has the meaning set forth in the Declarations.



     “FRB” means the Board of Governors of the Federal Reserve System.



     “ICONs” has the meaning set forth in Section 3.1(a) hereof.



     “Indenture” has the meaning set forth in the Declarations.



     “Investment Company Event” means the receipt by the Company and the Trust of an
opinion of an independent counsel experienced in matters relating to investment companies (which
opinion shall not have been rescinded), to the effect that, as a result of any Change in 1940 Act
Law, there is more than an insubstantial risk that the Trust is or will be considered an
“investment company” that is required to be registered under the Investment Company Act of 1940, which Change in 1940 Act
Law becomes effective on or after the date of original issuance
of the Capital Securities.



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




     (a) trading in securities generally on the New York Stock Exchange or any other
national securities exchange or over-the-counter market on which the Company’s Eligible
Equity is then listed or traded shall have been suspended or its settlement generally shall
have been materially disrupted;




     (b) the Company would be required to obtain the consent or approval of a regulatory
body (including, without limitation, any securities exchange) or governmental authority to
issue Eligible Equity and the Company shall have failed to obtain that consent or approval
notwithstanding the Company’s commercially reasonable efforts to obtain that consent or
approval (including, without limitation, failing to obtain the approval of the FRB for the
issuance, offer and sale of Eligible Equity, if such approval is required by the FRB, after
having notified the FRB of the commencement of the APM Period and sought such approval in
accordance with Section 3.1(i) hereof); or




     (c) an event occurs and is continuing as a result of which the offering document for
the offer and sale of the Company’s Eligible Equity would, in the Company’s reasonable
judgment, contain an untrue statement of a material fact or omit to state a material fact
required to be stated in that offering document or necessary to make the statements in that
offering document not misleading and either (a) the disclosure of that event at the time the
event occurs, in the Company’s reasonable judgment, 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 that transaction, provided that one or more events described in this
subsection (c) shall not constitute a Market Disruption Event with respect to more than one
Interest Payment Date.



     “MDE Certification” means an Officer’s Certificate of the Company delivered in advance
of an Interest Payment Date certifying that:




     (a) a Market Disruption Event was existing after the immediately preceding Interest
Payment Date; and




     (b) either (1) the Market Disruption Event continued for the entire period from the
Business Day immediately following the preceding Interest Payment Date to the Business Day
immediately preceding the date on which such certification is provided or (2) the Market
Disruption Event continued for only part of such period but the Company was unable after
commercially reasonable efforts to raise sufficient Eligible Equity Proceeds during the rest
of that period to pay all accrued and unpaid interest due on the Interest Payment Date with
respect to which such MDE Certification is being delivered; and



identifying the type of Market Disruption Event that has occurred with respect to the applicable
Interest Payment Date, and the date(s) on which such event occurred or existed.



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     “Original Trustee” has the meaning set forth in the Declarations.



     “Pari Passu Securities” means (i) indebtedness (A) the terms of which provide that
such indebtedness ranks equally with the ICONs and (B) that qualifies or is issued to financing
vehicles issuing securities that qualify as Tier 1 capital of the Company under the capital
guidelines of the FRB; and (ii) guarantees of indebtedness described in clause (i) or securities
issued by one or more financing vehicles described in clause (i)(B).



     “Regulatory Capital Event” means the reasonable determination by the Company that, as
a result of: (1) any amendment to, or change (including any announced prospective change) in, the
laws or any applicable regulation of the United States or any political subdivision; or (2) any
official or administrative pronouncement or action or judicial decision for interpreting or
applying such laws or regulations, which amendment or change is effective or pronouncement or
decision is announced on or after the date of original issuance of the Capital Securities, there is
more than an insubstantial risk of impairment of the Company’s ability to treat the Capital
Securities (or any substantial portion thereof) as Tier 1 capital (or its then equivalent) for
purposes of the capital adequacy guidelines of the FRB in effect and applicable to the Company.



     “Special Event” means a Tax Event, a Regulatory Capital Event or an Investment Company
Event.



     “Successor Trustee” has the meaning set forth in the Declarations.



     “Supplemental Indenture” has the meaning set forth in the Declarations.



     “Tax Event” means the receipt by the Company or the Trust of an opinion of tax counsel
(which may be the Company’s counsel or counsel of an Affiliate but not an employee and must be
reasonably acceptable to the Property Trustee) experienced in such matters (which opinion shall not
have been rescinded), to the effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein; or any court, governmental
agency or regulatory authority interpreting or applying such laws or regulations, there is more
than an insubstantial risk that (1) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income received or accrued on
the ICONs; (2) interest payable by the Company on the ICONs is not, or within 90 days of the date
of such opinion will not be, deductible, in whole or in part, by the Company, for United States
federal income tax purposes; or (3) the Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or other governmental
charges.



     “Trust” has the meaning set forth in Section 3.1(a) hereof.



     “Trust Agreement” has the meaning set forth in Section 3.1(a) hereof.



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ARTICLE II




APPOINTMENT OF SUCCESSOR TRUSTEE




     Section 2.1. The Original Trustee hereby resigns as Trustee under the Indenture with
immediate effect.



     Section 2.2. Pursuant to Section 6.10(e) of the Original Indenture, the Company hereby
appoints the Successor Trustee as Trustee under the Indenture, the Company vests all the rights,
powers, trusts and duties of the Original Trustee under the Indenture to the Successor Trustee.



     Section 2.3 The Company hereby represents and warrants to the Original Trustee and the
Successor Trustee that:




     (a) The Indenture was validly and lawfully executed and delivered by the Company and
the all Securities heretofore issued under the Indenture were validly issued by the Company
pursuant to the Indenture.




     (b) The Company has performed or fulfilled prior to the date hereof, and will continue
to perform and fulfill after the date hereof, each covenant, agreement, condition,
obligation and responsibility under the Indenture.




     (c) No event has occurred and is continuing which is, or after notice or lapse of time
would become, an Event of Default under Section 5.1 of the Indenture.




     (d) This Supplemental Indenture has been duly authorized, executed and delivered on
behalf of the Company and constitutes its legal, valid and binding obligation, enforceable
in accordance with its terms.




     (e) All conditions precedent relating to the appointment of the Successor Trustee as
successor Trustee under the Indenture have been complied with by the Company.



     Section 2.4 The Original Trustee hereby confirms, assigns, transfers, delivers and conveys,
as of the date hereof, to the Successor Trustee, as successor Trustee under the Indenture, upon the
trusts expressed in the Indenture, without recourse, all rights, powers, trusts, privileges, duties
and obligations, which the Original Trustee, as Trustee, now holds under and by virtue of the
Indenture, and shall pay over to the Successor Trustee, any and all property and moneys held by the
Original Trustee under and by virtue of the Indenture, subject to the lien provided by Section 6.7
of the Indenture, which lien the Original Trustee expressly reserves to the fullest extent
necessary to secure the Company’s obligations under said section to the Original Trustee, which
lien shall also secure the Company’s obligations under said section to the Successor Trustee.



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     Section 2.5 The Original Trustee hereby represents and warrants to the Successor Trustee and
the Company that:




     (a) The register in which it has registered Securities accurately reflects the amount
of Securities issued and outstanding and the amounts payable thereon.




     (b) This Supplemental Indenture has been duly authorized, executed and delivered on
behalf of the Original Trustee and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.




     (c) To the best knowledge of the Original Trustee, no event has occurred and is
continuing which is, or after notice or lapse of time would become, an Event of Default
under Section 5.1 of the Indenture.



     Section 2.6 The Successor Trustee hereby represents and warrants to the Original Trustee and
the Company that:




     (a) It is qualified and eligible under the provisions of Section 6.9 of the Indenture
to accept its appointment as Trustee with respect to all series of Securities under the
Indenture and hereby accepts the appointment as such Trustee.




     (b) This Supplemental Indenture has been duly authorized, executed and delivered on
behalf of Successor Trustee and constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms.




     (c) The Successor Trustee hereby accepts its appointment as successor Trustee under the
Indenture and accepts the rights, powers, duties and obligations of the Original Trustee as
Trustee under the Indenture, upon the terms and conditions set forth therein, with like
effect as if originally named as Trustee under the Indenture.



     Section 2.7 The parties hereto agree that the Successor Trustee’s execution and delivery of
this Supplemental Indenture to the other parties hereto constitutes an instrument accepting such
appointment within the meaning of Section 6.11 of the Indenture.



     Section 2.8 References in the Indenture to “Corporate Trust Office” shall be deemed to refer
to the principal corporate trust office of Successor Trustee, which is presently located at 1100
North Market Street, Wilmington, Delaware 19890 Attention: [Corporate Trust Department], or any
other office of the Successor Trustee at which, at any particular time, its corporate trust
business shall be principally administered.



     Section 2.10 The parties hereto agree that this Supplemental Indenture does not constitute an
assumption by the Successor Trustee of any liability of the Original Trustee arising out of any
breach by the Original Trustee in the performance of any of its duties as Trustee under the
Indenture or by any representative of the Original Trustee.



     Section 2.11 The parties hereto agree that the Original Trustee shall not have any liability
arising out of any breach by the Successor Trustee in the performance or non-performance of any of its duties as Trustee under the
Indenture or by any representative of
the Successor Trustee.



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     Section 2.12 The Company agrees to indemnify the Successor Trustee for, and to hold it
harmless against, any loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) arising out of or in connection with the
performance or non-performance of the Original Trustee of its duties under the Indenture, including
the costs and expenses of defending itself against any claim or liability in connection therewith.
This indemnification shall survive the termination of this Supplemental Indenture.



     
Section 2.13 The Company agrees to indemnify the Original Trustee for, and to hold it
harmless against, any loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) arising out of or in connection with the
performance or non-performance of the Successor Trustee of its duties under the Indenture,
including the costs and expenses of defending itself against any claim or liability in connection
therewith. This indemnification shall survive the termination of this Supplemental Indenture.



ARTICLE III




TERMS OF SERIES OF SECURITIES




     Section 3.1. Pursuant to Sections 2.1 and 3.1 of the Indenture, there is hereby established
a series of Securities, the terms of which shall be as follows:




     (a) Designation. The Securities of this series shall be known and designated
as the “6.35% Income Capital Obligation NotesSM due 2065” of the Company (the
“ICONs”). The ICONs initially shall be issued to USB Capital VIII, a Delaware statutory
trust (the “Trust”). The Trust Agreement for the Trust shall be the Second Amended and
Restated Trust Agreement, dated as of December 29, 2005, among the Company, as Sponsor,
Wilmington Trust Company, as Delaware Trustee and Property Trustee, and the Administrative
Trustees named therein (the “Trust Agreement”). The Guarantee will be issued pursuant to the
Guarantee Agreement, dated as of December 29, 2005, between the Company and Wilmington Trust
Company, as Guarantee Trustee.




     (b) Aggregate Principal Amount. The aggregate principal amount of the ICONs
which may be authenticated and delivered under the Indenture and this Supplemental Indenture
is $386,597,950 (except for ICONs authenticated and delivered upon registration of transfer
of, or exchange for, or in lieu of, other ICONs pursuant to Section 3.4, 3.5, 3.6, 9.6 or
11.6 of the Indenture).




     (c) Denominations. The ICONs will be issued only in fully registered form,
and the authorized minimum denomination of the ICONs shall be $25 principal amount and any
integral multiple thereof.





 




			
	SM	 	Income Capital Obligation Notes is a
service mark of Merrill Lynch & Co., Inc.




- 7 -









 











     (d) Maturity. The principal amount of the ICONs shall be payable in full on
December 29, 2065 subject to and in accordance with the provisions of the Indenture and this
Supplemental Indenture.




     (e) Rate of Interest. The rate at which the ICONs shall bear interest will be
6.35% per annum; the date from which such interest shall accrue is December 29, 2005; the
Interest Payment Dates (as defined in the Indenture) on which such interest shall be payable
are March 29, June 29, September 29 and December 29 of each year, commencing March 29, 2006.
Interest payments not paid when due will themselves accrue Additional Interest at the annual
rate of 6.35% on the amount of unpaid interest, to the extent permitted by law, compounded
quarterly. The amount of interest payable for any period will be computed on the basis of a
360-day year comprised of twelve 30-day months. The amount of interest payable for any
period shorter than a full quarterly period will be computed on the basis of a 30-day month
and, for periods of less than a month, the actual number of days elapsed per 30-day month.




     (f) To Whom Interest Payable. Interest will be payable to the person in whose
name the ICONs are registered at the close of business on the Regular Record Date next
preceding the Interest Payment Date, except that, interest payable on the Stated Maturity of
the principal of the ICONs shall be paid to the Person to whom principal is paid.




     (g) Option to Defer Interest Payments. Interest payments on the ICONs shall
be subject to deferral to the extent and in the manner provided in Section 3.11 of the
Indenture for one or more Extension Periods of up to twenty (20) consecutive quarterly
periods. If the Company has deferred interest payments under this clause (g) for an
Extension Period consisting of 20 consecutive quarterly periods, no interest will be due or
payable on the Interest Payment Date relating to the last such quarterly period, provided,
however that all accrued and unpaid interest (including any Additional Interest) will become
due and payable on the next subsequent Interest Payment Date, subject to the Company’s right
to further defer interest on any Interest Payment Date during an APM Period as described in
clause (h) below. With respect to each Interest Payment Date, the Company shall deliver to
the Trustee written notice of any optional deferral pursuant to this clause (i) at least ten
and not more than sixty Business Days prior to such Interest Payment Date.




     (h) Deferral During APM Period. The Company shall have the right, at any time
and from time to time during the term of the ICONs, to defer payment of interest due on any
Interest Payment Date during an APM Period if the Company shall have delivered to the
Trustee an MDE Certification with respect to such Interest Payment Date no more than 20
Business Days and no less than 10 Business Days in advance thereof, provided that the
Company may not defer interest pursuant to this clause (h) on or after the maturity date of,
or redemption date for, the ICONs, or if such deferral would result in the Company having
failed to pay accrued interest in full on more than forty (40) consecutive Interest Payment
Dates.




     (i)  FRB Approvals. The Company shall notify the FRB prior to or promptly
after the commencement of an APM Period and shall seek the approval of the FRB if and



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when required from time to time for the issuance, offer or sale of Eligible Equity and
the application of the related proceeds as described in clause (k) below.




     (j) Payment of Deferred Interest. The Company shall not pay on any Interest
Payment Date interest that has accrued on the ICONs during the quarterly interest period
immediately preceding such Interest Payment Date, unless the Company pays therewith all
accrued and unpaid interest (including any Additional Interest) at such time outstanding on
the ICONs, including without limitation interest that has been deferred pursuant to clause
(g) or clause (h) above.




     (k) Limitation on Source of Payment of Interest During APM Period. On any
Interest Payment Date during an APM Period, the Company covenants not to pay any accrued and
unpaid interest on the ICONs except on an Interest Payment Date and except in an aggregate
amount for each Interest Payment Date that does not exceed the Eligible Equity Proceeds with
respect to such Interest Payment Date raised by the Company pursuant to clause (l) below.




     (l) Obligation After Five Years of Optional Deferral. With regard to each
Interest Payment Date during any APM Period (other than the Interest Payment Date for which
the Company’s failure to pay accrued and unpaid interest triggered the APM Period), except
any Interest Payment Date for which the Company has delivered a timely MDE Certification
pursuant to clause (h) above, the Company covenants to issue and sell Eligible Equity in an
amount that will generate sufficient Eligible Equity Proceeds to enable the Company to pay
all accrued and unpaid interest on the Notes in full on such Interest Payment Date in
accordance with clause (k) above. The Company covenants to apply all Eligible Equity
Proceeds raised pursuant to this clause (l) to the payment of accrued and unpaid interest on
the applicable Interest Payment Date until all accrued and unpaid interest shall have been
paid in full.




     (m) Events of Default. An Event of Default as defined in the Indenture shall
be an Event of Default with respect to the ICONs, provided that the nonpayment of interest
for so long as and to the extent that interest is permitted to be deferred pursuant to
clauses (g) and (h) above shall not be deemed to be a default in the payment of interest for
the purposes of Section 5.1(1) of the Indenture and shall not otherwise be deemed an Event
of Default with respect to the ICONs. For the avoidance of doubt, and without prejudice to
any other remedies that may be available to the Trustee, the Holders of the ICONs or the
holders of the Capital Securities under the Indenture, no breach by the Company of any
covenant or obligation under the Indenture or the terms of the ICONs shall be an Event of
Default (including, without limitation, (i) the payment of interest at any time from a
source other than Eligible Equity Proceeds in breach of the covenant of the Company under
clause (k) above or (ii) the failure to raise or apply Eligible Equity Proceeds in breach of
the covenants of the Company under clause (l) above), except those that are specifically
identified as an Event of Default under the Indenture.




     (n) Location of Payment. Payment of the principal of (and premium, if any)
and interest on the ICONs will be made at the corporate trust office of the Successor
Trustee, in such coin or currency of the United States of America as at the time of payment
is



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legal tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made (i) by check mailed to the address of
the Person entitled thereto as such address shall appear in the Securities Register or (ii)
by wire transfer in immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Securities Register. The
office where the ICONs may be presented or surrendered for payment and the office where the
ICONs may be surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the ICONs and the Indenture may be served shall be the Corporate
Trust Office. The Successor Trustee shall act as Paying Agent.




     (o) Redemption. The ICONs are redeemable at the option of the Company,
subject to the terms and conditions of Article XI of the Indenture and subject to the
Company having received prior approval from the FRB if then required under applicable
capital guidelines or policies of the FRB, at 100% of their principal amount plus accrued
and unpaid interest (1) in whole or in part, on one or more occasions at any time on or
after December 29, 2010, or (2) in whole at any time if a Special Event has occurred and is
continuing and the Company cannot cure the Special Event by some reasonable action, in which
case the Company may redeem the ICONs within 90 days following the occurrence of the Special
Event.




     (p) Sinking Fund. The ICONs shall not be subject to any sinking fund or
analogous provisions.




     (q) Forms. The ICONs shall be substantially in the form of Annex A attached
hereto, with such modifications thereto as may be approved by the authorized officer
executing the same. The Trust Agreement shall be substantially in the form of Annex B
attached hereto, with such modifications thereto as may be approved by the authorized
officer executing the same. The Guarantee Agreement shall be substantially in the form of
Annex C attached hereto, with such modifications thereto as may be approved by the
authorized officer executing the same.




     (r) Subordination. The subordination provisions of Article XIII of the
Indenture shall apply; provided, however, that for the purposes of the ICONs (but not for
the purposes of any other Securities unless specifically set forth in the terms of such
Securities), the definition of “Senior and Subordinated Debt” in the Indenture is hereby
amended in its entirety to read as follows:




“’Senior and Subordinated Debt’ means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any petition
in bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Company (including, for these purposes and without limitation, obligations
associated with commodity contracts, interest rate and foreign exchange contracts,
forward contracts related to mortgages and other derivative products), whether
incurred on or prior to the date of this Indenture or thereafter incurred, provided, however, that Senior and Subordinated Debt
shall not include Pari Passu Securities.”



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     (s) Dividend Stopper. During any Extension Period or APM 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 of the Company’s capital stock (which includes common and preferred
stock) or (ii) make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu with or junior
in interest to the ICONs or (iii) make any guarantee payments with respect to any guarantee
by the Company of the debt securities of any Subsidiary of the Company if such guarantee
ranks pari passu with or junior in interest to the ICONs (other than (a) dividends or
distributions in Common Stock of the Company, (b) any declaration of a dividend in
connection with the implementation of a stockholders’ rights plan, or the issuance of stock
under any such plan in the future or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Guarantee with respect to the Capital Securities of
the Trust and (d) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Company’s benefits plans for its directors, officers or employees).



ARTICLE IV




MISCELLANEOUS




     Section 4.1. If any provision of this Supplemental Indenture limits, qualifies or conflicts
with the duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939 through operation of Section 318(c) thereof, such imposed duties shall control.



     Section 4.2. The Article headings herein are for convenience only and shall not effect the
construction hereof.



     Section 4.3. All covenants and agreements in this Supplemental Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.



     Section 4.4. In case any provision of this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.



     Section 4.5. Nothing in this Supplemental Indenture is intended to or shall provide any rights
to any parties other than those expressly contemplated by this Supplemental Indenture.



     Section 4.6. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.



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     Section 4.7. The Trustee makes no representations as to the validity or sufficiency of this
Supplemental Indenture. The recitals and statements herein are deemed to be those of the Company
and not of the Trustee.



* * * *




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



     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and attested, all as of the
day and year first above written.



	 	 	 	 	 	 	 	 
	 	 	 	 	U.S. BANCORP	 
	 
	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	 	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	By
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	Its
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 	 	 	 	DELAWARE TRUST COMPANY,

NATIONAL ASSOCIATION	 
	 	 	 	 	as Original Trustee	 
	 
	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	 	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	By
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	Its
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	 	 	 	 	WILMINGTON TRUST COMPANY,	 
	 	 	 	 	as Successor Trustee	 
	 
	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 
	 

	 	 	 	 	 	 	 
	 

	 	 	 	Its:	 	 	 
	 

	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	Attest:	 	 	 	 	 
	 
	 	 	 	 	 	 	 
	By
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 
	Its
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 





- 13 -









 





Form of ICONS


U.S. BANCORP




6.35% Income Capital Obligations NotesSM due 2065



No. •



$386,597,950



CUSIP No. 902973 AN 6




     U.S. BANCORP, a corporation organized and existing under the laws of the State 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 Wilmington Trust
Company, as Property Trustee of USB CAPITAL VIII, or registered assigns, the principal sum of
THREE-HUNDRED AND EIGHT-SIX MILLION, FIVE-HUNDRED AND NINETY-SEVEN THOUSAND NINE-HUNDRED AND FIFTY
dollars ($386,597,950) on December 29, 2065. The Company further promises to pay interest on said
principal sum from December 29, 2005 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, quarterly
(subject to deferral as set forth herein) in arrears on March 29, June 29, September 29 and
December 29 of each year, commencing March 29, 2006, at the rate of 6.35% per annum, until the
principal hereof shall have become due and payable, and on any overdue principal and (without
duplication and to the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the same rate per annum, compounded quarterly. The amount
of interest payable for any period will be computed on the basis of a 360-day year comprised of
twelve 30-day months. The amount of interest payable for any period shorter than a full quarterly
period will be computed on the basis of a 30-day month period and, for periods of less than a
month, the actual number of days elapsed per 30-day month. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment of the interest payable
on such date will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay). A “Business Day” shall mean any day other
than (i) a Saturday or Sunday, (ii) a day on which banking institutions in The City of New York are
authorized or required by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Property Trustee or the principal offices of the Property Trustee
under the Trust Agreement hereinafter referred to for USB CAPITAL VIII, is closed for business.
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 Security
(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 (i) the Business Day next preceding such
Interest Payment Date if this Security is issued in the form of a Global Security, or (ii) the
fifteenth day (whether or not a Business Day) preceding such Interest Payment Date if this Security
is not issued in the form of a Global Security. 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





 




			
	SM	 	Income Capital Obligation Notes is a
service mark of Merrill Lynch & Co., Inc.




 









 









Security (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 Securities of this series 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 Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more full provided in said Indenture.




     So long as no Event of Default has occurred and is continuing, the Company shall have the
right at any time and from time to time during the term of this Security to defer payment of
interest on this Security for up to twenty consecutive quarterly interest payment periods with
respect to each deferral period (each an “Extension Period”), but shall (subject to its rights to
further defer interest on Interest Payment Dates during an APM Period as described in the
Indenture) pay all interest then accrued and unpaid (together with interest thereon to the extent
permitted by applicable law, compounded quarterly at the rate specified in this Security) on the
first Interest Payment Date following the termination of such Extension Period; provided, however,
that no Extension Period shall extend beyond the Stated Maturity of the principal of this Security.
Upon termination of any such Extension Period and upon the payment of all accrued and unpaid
interest (including any Additional Interest) then due, the Company may elect to begin a new
Extension Period, subject to the above requirements. No interest shall be due and payable during
an Extension Period except on the first Interest Payment Date thereafter.


The Company also shall have the right, at any time and from time to time during the term of this
Security, to defer payment of interest due on any Interest Payment Date during an APM Period (as
defined in the Indenture), subject to certain limitations described in the Indenture, if the
Company shall have delivered to the Trustee an MDE Certification (as defined in the Indenture) with
respect to such Interest Payment Date as described in the Indenture, provided that the Company may
not so defer interest on or after the maturity date of, or redemption date for, this Security, or
if such deferral would result in the Company having failed to pay accrued interest in full on more
than forty consecutive Interest Payment Dates. On any Interest Payment Date during an APM Period,
the Company covenants not to pay any accrued and unpaid interest on this Security except on an
Interest Payment Date and except in an aggregate amount for each Interest Payment Date that does
not exceed the Eligible Equity Proceeds (as defined in the Indenture) raised by the Company as
described in the Indenture.



The Company shall not pay on any Interest Payment Date interest that has accrued on this Security
during the quarterly interest period immediately preceding such Interest Payment Date, unless the
Company pays therewith all accrued and unpaid interest (including any Additional Interest) at such
time outstanding on this Security, including without limitation accrued and unpaid interest that
has been deferred pursuant to the provisions described in the preceding two paragraphs.



During any such Extension Period or APM 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 of the Company’s capital stock
or (ii) make any payment of principal of or interest or premium, if any, on or repay,




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repurchase or redeem any debt securities of the Company that rank pari passu with or junior in
interest to this Security or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such guarantee ranks pari passu
with or junior in interest to the Security (other than (a) dividends or distributions in Common
Stock of the Company, (b) any declaration of a dividend in connection with the implementation of a
stockholders’ rights plan, or the issuance of stock under any such plan in the future or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under the Guarantee with
respect to the Capital Securities of the Trust and (d) purchases of Common Stock related to the
issuance of Common Stock or rights under any of the Company’s benefits plans for its directors,
officers or employees).




     Payment of principal of (and premium, if any) and interest on this Security will be made at
the office or agency of the Company maintained for that purpose in the United States, in such coin
or currency of the United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register or (ii) by wire transfer in immediately available
funds at such place and to such account as may be designated in writing at least 15 days before the
relevant Interest Payment Date by the Person entitled thereto as specified in the Securities
Register.



     The indebtedness evidenced by this Security is, to the extent provided in the Indenture,
subordinated and subject in right of payments to the prior payment in full of all Senior and
Subordinated Debt (as such definition is modified in the Second Supplemental Indenture with respect
to this Security), and this Security is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on his behalf to take such actions
as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his attorney-in-fact for any and all such purposes. Each Holder hereof, by his acceptance
hereof, waives all notice of the acceptance of the subordination provisions contained herein and in
the Indenture by each holder of Senior and Subordinated Debt, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.



     Reference is made hereby to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.



     Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.



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     IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.



	 	 	 	 	 
	 	U.S. Bancorp 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 
	Attest:
	 	 
	 
	 
	 	 
	 

Assistant Secretary

	 	 
	 
	 	 
	Dated: December 29, 2005
	 	 






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REVERSE OF SECURITY




     This Security is one of a duly authorized issue of securities of the Company (herein called
the “Securities”), issued and to be issued in one or more series under a Junior Subordinated
Indenture, dated as of April 28, 2005, as supplemented by the First Supplemental Indenture, dated
as of August 3, 2005, and a Second Supplemental Indenture, dated as of December 29, 2005 (herein
together called the “Indenture”), between the Company and Wilmington Trust Company (as successor to
Delaware Trust Company, National Association), as Trustee (herein called the “Trustee,” which term
includes any successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof, limited in aggregate
principal amount of $386,597,950 issuable on one or more occasions.



     All terms used in this Security that are defined in the Indenture or in the Second Amended and
Restated Trust Agreement, dated as of December 29, 2005 (the “Trust Agreement”), for USB CAPITAL
VIII, among U.S. Bancorp, as Sponsor, and the Trustees named therein, shall have the meanings
assigned to them in the Indenture or the Trust Agreement, as the case may be.



     The Company may at any time, at its option, on or after December 29, 2010, and subject to the
terms and conditions of Article XI of the Indenture and Section 3.1(o) of the Second Supplemental
Indenture, and subject to prior approval by the Board of Governors of the Federal Reserve System if
then required, redeem this Security in whole at any time or in part from time to time, without
premium or penalty, at a redemption price equal to 100% of the principal amount thereof plus
accrued and unpaid interest including Additional Interest, if any, to the Redemption Date.



     Upon the occurrence and during the continuation of a Tax Event, Investment Company Event or a
Regulatory Capital Event in respect of a Trust, the Company may, at its option, at any time within
90 days of the occurrence of such Tax Event, Investment Company Event or Regulatory Capital Event
redeem this Security, in whole but not in part, subject to the provisions of Article XI of the
Indenture, at a redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date.



     The Indenture contains provisions for satisfaction and discharge of the entire indebtedness of
this Security upon compliance by the Company of certain conditions set forth in the Indenture.



     The Indenture permits, with certain exceptions as therein provided, the Company and the
Trustee at any time to enter into a supplemental indenture or indentures for the purpose of
modifying in any manner the rights and obligations of the Company and of the Holders of the



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Securities, with the consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series to be affected by such supplemental indenture. The Indenture
also contains provisions permitting Holders of specified percentages in principal amount of the
Securities of all series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such consent or waiver by
the Holders of this Security and of any Security issued upon the registration and transfer hereof
or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.



     As provided in and subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities of this series at the time Outstanding occurs and is continuing, then and
in every such case the Trustee or the Holders of not less that 25% in principal amount of the
Outstanding Securities of this series may declare the principal amount of all the Securities of
this series to be due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), provided that, in the case of the Securities of this series
issued to a Trust, if upon an Event of Default, the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series fails to declare the principal of all
the Securities of this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities then outstanding shall have such right by a
notice in writing to the Company and the Trustee; and upon any such declaration the principal
amount of and the accrued interest (including Additional Interest) on all the Securities of this
series shall become immediately due and payable, provided that the payment of principal and
interest (including Additional Interest) on such Securities shall remain subordinated to the extent
provided in Article XIII of the Indenture and Section 3.1(r) of the Second Supplemental Indenture.



     No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of (and premium, if any) and interest on this Security at the times, places and rate,
and in the coin or currency, herein prescribed (subject to the deferral rights of the Company
described in the Indenture).



     As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registrable in the Securities Register, upon surrender of this
Security for registration of transfer at the office or agency of the Company maintained under
Section 10.2 of the Indenture duly endorsed by, or accompanied by written instrument of transfer in
form satisfactory to the Company and the Securities Registrar duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.



     Prior to due presentment of this Security for registration or transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this



A-6









 







Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.



     The Securities of this series are issuable only in registered form without coupons in
denominations of $25 and in any multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this series are exchangeable for like
aggregate principal amount of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.



     The Company and, by its acceptance of this Security or a beneficial interest therein, the
Holder of, and any Person that acquires beneficial interest in, this Security agree that for United
States federal, state and local tax purposes it is intended that this Security constitute
indebtedness.



     THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.



     This is one of the Securities referred to in the mentioned Indenture.



	 	 	 	 	 
	 	Wilmington
Trust Company, 

as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



Dated: December 29, 2005





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