exv4w6



 






 Exhibit 4.6



 





GUARANTEE AGREEMENT




Dated as of December 29, 2005




By and Between




U.S. BANCORP,

as Guarantor




and




WILMINGTON TRUST COMPANY,

as Trustee




 





 









 








CROSS REFERENCE TABLE1




	 	 	 	 	 
	Section of Trust	 	Section of
	Indenture Act of	 	Guarantee
	1939, as amended	 	Agreement
	310(a)

	 	4.1(a)

	310(b)

	 	2.8; 4.1(c)

	310(c)

	 	Inapplicable

	311(a)

	 	2.2(b)

	311(b)

	 	2.2(b)

	311(c)

	 	Inapplicable

	312(a)

	 	2.2(a); 2.9

	312(b)

	 	2.2(b); 2.9

	312(c)

	 	2.9

	313(a)

	 	2.3

	313(b)

	 	2.3

	313(c)

	 	2.3

	313(d)

	 	2.3

	314(a)

	 	2.4

	314(b)

	 	Inapplicable

	314(c)

	 	2.5

	314(d)

	 	Inapplicable

	314(e)

	 	2.5

	314(f)

	 	Inapplicable

	315(a)

	 	3.1(d); 3.2(a)

	315(b)

	 	2.7(a)

	315(c)

	 	3.1(c)

	315(d)

	 	3.1(d)

	316(a)

	 	2.6; 5.4(a)

	316(b)

	 	5.3

	316(c)

	 	Inapplicable

	317(a)

	 	2.10

	317(b)

	 	Inapplicable

	318(a)

	 	2.1(b)









 




			
	1	 	This Cross-Reference Table does not constitute
part of the Agreement and shall not have any bearing upon the interpretation of
any of its terms or provisions.




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Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Page	 
	ARTICLE 1 INTERPRETATION AND DEFINITIONS	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 1.1.	 	Interpretation and Definitions	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 2 TRUST INDENTURE ACT	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.1.	 	Trust Indenture Act; Application	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.2.	 	Lists of Holders of Securities	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.3.	 	Reports by Guarantee Trustee	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.4.	 	Periodic Reports to Guarantee Trustee	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.5.	 	Evidence of Compliance with Conditions Precedent	 	 	5	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.6.	 	Guarantee Event of Default; Waiver	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.7.	 	Guarantee Event of Default; Notice	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.8.	 	Conflicting Interests	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.9.	 	Disclosure of Information	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 2.10.	 	Guarantee Trustee May File Proofs of Claim	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 3 POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 3.1.	 	Powers and Duties of Guarantee Trustee	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 3.2.	 	Certain Rights of Guarantee Trustee	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 4 GUARANTEE TRUSTEE	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 4.1.	 	Guarantee Trustee; Eligibility	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 4.2.	 	Appointment, Removal and Resignation of Guarantee Trustee	 	 	11	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 5 GUARANTEE	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 5.1.	 	Guarantee	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 5.2.	 	Waiver of Notice and Demand	 	 	12	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 5.3.	 	Obligations Not Affected	 	 	12	 






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	 	 	 	 	 	 	Page	 
	 
	 	SECTION 5.4.	 	Rights of Holders	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 5.5.	 	Guarantee of Payment	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 5.6.	 	Subrogation	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 5.7.	 	Independent Obligations	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 6 LIMITATION OF TRANSACTIONS; SUBORDINATION	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 6.1.	 	Limitation of Transactions	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 6.2.	 	Ranking	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 6.3.	 	Subordination of Common Securities	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 7 TERMINATION	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 7.1.	 	Termination	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 8 INDEMNIFICATION	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 8.1.	 	Indemnification	 	 	15	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE 9 MISCELLANEOUS	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 9.1.	 	Successors and Assigns	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 9.2.	 	Amendments	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 9.3.	 	Notices	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 9.4.	 	Benefit	 	 	17	 
	 
	 	 	 	 	 	 	 	 
	 
	 	SECTION 9.5.	 	Governing Law	 	 	17	 







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GUARANTEE AGREEMENT




          This GUARANTEE AGREEMENT (the “Guarantee”), dated as of December 29, 2005, is executed and
delivered by U.S. BANCORP, a Delaware corporation (the “Guarantor”), and WILMINGTON TRUST COMPANY,
a Delaware banking corporation, as trustee (the “Guarantee Trustee”), for the benefit of the
Holders (as defined herein) from time to time of the Securities (as defined herein) of USB CAPITAL
VIII, a Delaware statutory trust (the “Trust”).




RECITALS




          WHEREAS, pursuant to the Trust Agreement (as defined herein), the Trust may issue up to
$431,250,000 aggregate liquidation amount of capital securities, having a liquidation
amount of $25.00 per security and designated the “6.35% Trust Preferred Securities” of the Trust
(the “Capital Securities”) and up to $13,337,650 aggregate liquidation amount of common securities,
having a liquidation amount of $25.00 per security and designated the “6.35% Common Securities” of
the Trust (the “Common Securities” and, together with the Capital Securities, the “Securities”);




          WHEREAS, as incentive for the Holders to purchase the Securities, the Guarantor desires
irrevocably and unconditionally to agree, to the extent set forth in this Guarantee, to pay to the
Holders of the Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein; and




          WHEREAS, if a Trust Enforcement Event (as defined herein) has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments (as defined herein) under
this Guarantee are subordinated to the rights of Holders of Capital Securities to receive Guarantee
Payments under this Guarantee;




          NOW, THEREFORE, in consideration of the purchase by each Holder of Securities, which purchase
the Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee for the benefit of the Holders.




ARTICLE 1




INTERPRETATION AND DEFINITIONS




     SECTION 1.1. Interpretation and Definitions. In this Guarantee, unless the context
otherwise requires:




     (a) capitalized terms used in this Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this Section 1.1;




     (b) a term defined anywhere in this Guarantee has the same meaning throughout;



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     (c) all references to “the Guarantee” or “this Guarantee” are to this Guarantee as
modified, supplemented or amended from time to time;




     (d) all references in this Guarantee to Articles, Sections and Recitals are to
Articles, Sections and Recitals of this Guarantee, unless otherwise specified;




     (e) unless otherwise defined in this Guarantee, a term defined in the Trust Indenture
Act has the same meaning when used in this Guarantee;




     (f) a reference to the singular includes the plural and vice versa and a reference to
any masculine form of a term shall include the feminine form of a term, as applicable; and




     (g) the following terms have the following meanings:



          “Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act of
1933, as amended, or any successor rule thereunder.




          “Business Day” has the meaning specified in the Trust Agreement.




          “Capital Securities” has the meaning specified in the Recitals hereto.




          “Common Securities” has the meaning specified in the Recitals hereto.




          “Common Stock” means the common stock, par value $0.01 per share, of the Guarantor.




          “Corporate Trust Office” means the principal office of the Guarantee Trustee at which at any
particular time its corporate trust business shall be administered, which office at the date of
execution of this Guarantee is located at 1100 Market Street, Wilmington, Delaware 19890.




          “Global Security” means a fully registered, global Capital Security, as defined in the
Indenture, representing the Capital Securities.




          “Guarantee Event of Default” means a default by the Guarantor on any of its payment or other
obligations under this Guarantee.




          “Guarantee Payments” means the following payments or distributions, without duplication, with
respect to the Securities, to the extent not paid by or on behalf of the Trust: (i) any accumulated
and unpaid Distributions (as defined in the Trust Agreement) that are required to be paid on such
Securities to the extent the Trust has sufficient funds available therefor at the time, (ii) the
redemption price, including all accumulated and unpaid Distributions to the date of redemption,
with respect to any Securities called for redemption by the Trust, to the extent the Trust shall
have sufficient funds available therefor at the time or (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of the Trust (other than in connection with the distribution
of ICONs to the Holders in exchange for Securities as provided




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in the Trust Agreement), the lesser of (a) the aggregate of the liquidation amount and all
accumulated and unpaid Distributions on the Securities to the date of payment, to the extent the
Trust has sufficient funds available therefor and (b) the amount of assets of the Trust remaining
available for distribution to Holders in liquidation of the Trust (in either case, the “Liquidation
Distribution”).




          “Guarantee Trustee” means Wilmington Trust Company, until a Successor Guarantee Trustee has
been appointed and has accepted such appointment pursuant to the terms of this Guarantee and
thereafter means each such Successor Guarantee Trustee.




          “Holder” means any holder of Securities, as registered on the books and records of the Trust;
provided, however, that, in determining whether the Holders of the requisite percentage of Capital
Securities have given any request, notice, consent or waiver hereunder, “Holder” shall not include
the Guarantor or any Affiliate of the Guarantor or any other obligor on the Capital Securities.




          “ICONs” means the series of 6.35% Income Capital Obligation Notes due 2065 designated the
“6.35% Income Capital Obligation Notes due 2065”, held by the Property Trustee as defined in the
Trust Agreement.




          “Indenture” means the Junior Subordinated Indenture, dated as of April 28, 2005, by and
between U.S. Bancorp and Delaware Trust Company, National Association, as supplemented by the First
Supplemental Indenture dated as of August 3, 2005, as further supplemented by the Second
Supplemental Indenture dated as of December 29, 2005, by and between U.S. Bancorp, Delaware Trust
Company, National Association, as original trustee and Wilmington Trust Company, as successor
trustee, and any indenture supplemental thereto pursuant to which the ICONs are to be issued to the
Property Trustee, as defined in the Trust Agreement.




          “List of Holders” has the meaning assigned to it in Section 2.2 hereof.




          “Majority in Liquidation Amount” means, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holder(s) of outstanding Securities, voting together as a
single class, or, as the context may require, Holders of outstanding Capital Securities or Holders
of outstanding Common Securities, voting separately as a class, who are the record owners of more
than 50% of the aggregate liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accumulated and unpaid Distributions to the date upon
which the voting percentages are determined) of all outstanding Securities of the relevant class.
In determining whether the Holders of the requisite amount of Securities have voted, Securities
which are owned by the Guarantor or any Affiliate of the Guarantor or any other obligor on the
Securities shall be disregarded for the purpose of any such determination.




          “Officers’ Certificate” means, with respect to any Person, a certificate signed on behalf of
such Person by two Authorized Officers (as defined in the Trust Agreement) of such




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Person. Any Officers’ Certificate delivered with respect to compliance with a condition or
covenant provided for in this Guarantee shall include:





     (i) a statement that each officer signing the Officers’ Certificate has read
the covenant or condition and the definitions relating thereto;




     (ii) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering the
Officers’ Certificate;




     (iii) a statement that each such officer has made such examination or
investigation as, in such officer’s opinion, is necessary to enable such officer on
behalf of such Person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and




     (iv) a statement as to whether, in the opinion of each such officer acting on
behalf of such Person, such condition or covenant has been complied with.



          “Person” means a legal person, including any individual, corporation, estate, partnership,
joint venture, association, joint stock company, limited liability company, trust, unincorporated
association, or government or any agency or political subdivision thereof, or any other entity of
whatever nature.




          “Redemption Price” has the meaning specified in the Trust Agreement.




          “Responsible Officer” means, with respect to the Guarantee Trustee, any officer with direct
responsibility for the administration of this Guarantee and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of
that officer’s knowledge of and familiarity with the particular subject.




          “Securities” has the meaning specified in the Recitals hereto.




          “Successor Guarantee Trustee” means a successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1.




          “Trust Agreement” means the Second Amended and Restated Trust Agreement, dated as of the date
hereof, as amended, modified or supplemented from time to time, among the trustees of the Trust
named therein, the Guarantor, as sponsor, and the Holders, from time to time, of undivided
beneficial ownership interests in the assets of the Trust.




          “Trust Enforcement Event” in respect of the Securities means an Event of Default (as defined
in the Indenture) has occurred and is continuing in respect of the ICONs.




          “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended from time to time, or
any successor legislation.




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ARTICLE 2




TRUST INDENTURE ACT




     SECTION 2.1. Trust Indenture Act; Application. (a) This Guarantee is subject to
the provisions of the Trust Indenture Act that are required to be part of this Guarantee and shall,
to the extent applicable, be governed by such provisions.



          (b) If and to the extent that any provision of this Guarantee limits, qualifies or conflicts
with the duties imposed by Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed
duties shall control.




     SECTION 2.2. Lists of Holders of Securities. (a) The Guarantor shall provide the
Guarantee Trustee (i) except while the Capital Securities are represented by one or more Global
Securities, at least two Business Days prior to the date for payment of Distributions, a list, in
such form as the Guarantee Trustee may reasonably require, of the names and addresses of the
Holders of the Securities (“List of Holders”) as of the record date relating to the payment of such
Distributions, and (ii) at any other time, within 30 days of receipt by the Guarantor of a written
request from the Guarantee Trustee for a List of Holders as of a date no more than 15 days before
such List of Holders is given to the Guarantee Trustee; provided that the Guarantor shall not be
obligated to provide such List of Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Guarantee Trustee by the Guarantor. The Guarantee Trustee
shall preserve, in as current a form as is reasonably practicable, all information contained in
Lists of Holders given to it, provided that the Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.



          (b) The Guarantee Trustee shall comply with its obligations under Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.




     SECTION 2.3. Reports by Guarantee Trustee. Within 60 days after May 15 of each year
(commencing with the year of the first anniversary of the issuance of the Securities), the
Guarantee Trustee shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act (if any) in the form and in the manner provided by Section
313 of the Trust Indenture Act. The Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.



     SECTION 2.4. Periodic Reports to Guarantee Trustee. The Guarantor shall provide to
the Guarantee Trustee such documents, reports and information as required by Section 314(a) (if
any) of the Trust Indenture Act and the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the
manner and at the times required by Section 314(a) of the Trust Indenture Act, but in no event
later than 120 days after the end of each calendar year.



     SECTION 2.5. Evidence of Compliance with Conditions Precedent. The Guarantor shall
provide to the Guarantee Trustee such evidence of compliance with any conditions precedent, if any,
provided for in this Guarantee that relate to any of the matters set forth in



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Section 314(c) of the Trust Indenture Act. Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) may be given in the form of an Officers’ Certificate.




     SECTION 2.6. Guarantee Event of Default; Waiver. The Holders of a Majority in
Liquidation Amount of the Capital Securities may, by vote or written consent, on behalf of the
Holders of all of the Securities, waive any past Guarantee Event of Default and its consequences.
Upon such waiver, any such Guarantee Event of Default shall cease to exist, and any Guarantee Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Guarantee, but no such waiver shall extend to any subsequent or other default or Guarantee Event of
Default or impair any right consequent thereon.



     SECTION 2.7. Guarantee Event of Default; Notice. (a) The Guarantee Trustee shall,
within 90 days after the occurrence of a Guarantee Event of Default actually known to a Responsible
Officer of the Guarantee Trustee, transmit by mail, first class postage prepaid, to the Holders of
the Securities, notices of all such Guarantee Events of Default, unless such defaults have been
cured before the giving of such notice; provided, that the Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Guarantee Trustee in good
faith determines that the withholding of such notice is in the interests of the Holders of the
Securities.



          (b) The Guarantee Trustee shall not be deemed to have knowledge of any Guarantee Event of
Default unless the Guarantee Trustee shall have received written notice thereof or a Responsible
Officer of the Guarantee Trustee charged with the administration of this Guarantee Agreement shall
have obtained actual knowledge thereof.




     SECTION 2.8. Conflicting Interests. The Trust Agreement shall be deemed to be
specifically described in this Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.



     SECTION 2.9. Disclosure of Information. The disclosure of information as to the names
and addresses of the Holders of the Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was derived, shall not be
deemed to be a violation of any
existing law, or any law hereafter enacted which does not specifically refer to Section 312 of
the Trust Indenture Act, nor shall the Guarantee Trustee be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.



     SECTION 2.10. Guarantee Trustee May File Proofs of Claim. Upon the occurrence of a
Guarantee Event of Default, the Guarantee Trustee is hereby authorized to (a) recover judgment, in
its own name and as trustee of an express trust, against the Guarantor for the whole amount of any
Guarantee Payments remaining unpaid and (b) file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have its claims and those of the Holders of the
Securities allowed in any judicial proceedings relative to the Guarantor, its creditors or its
property.



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ARTICLE 3




POWERS, DUTIES AND RIGHTS OF

GUARANTEE TRUSTEE




     SECTION 3.1. Powers and Duties of Guarantee Trustee.



          (a) This Guarantee shall be held by the Guarantee Trustee on behalf of the Trust for the
benefit of the Holders of the Securities, and the Guarantee Trustee shall not transfer this
Guarantee to any Person except a Holder of Securities exercising his or her rights pursuant to
Section 5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Successor Guarantee Trustee. The right, title and interest of
the Guarantee Trustee in and to this Guarantee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and succession of title shall be effective whether or not conveyance
documents have been executed and delivered pursuant to the appointment of such Successor Guarantee
Trustee.




          (b) If a Guarantee Event of Default actually known to a Responsible Officer of the Guarantee
Trustee has occurred and is continuing, the Guarantee Trustee shall enforce this Guarantee for the
benefit of the Holders of the Securities.




          (c) The Guarantee Trustee, before the occurrence of any Guarantee Event of Default and after
the curing of all Guarantee Events of Default that may have occurred, shall undertake to perform
only such duties as are specifically set forth in this Guarantee, and no implied covenants shall be
read into this Guarantee against the Guarantee Trustee. In case a Guarantee Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is actually known to a
Responsible Officer of the Guarantee Trustee, the Guarantee Trustee shall exercise such of the
rights and powers vested in it by this Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.




          (d) No provision of this Guarantee shall be construed to relieve the Guarantee Trustee from
liability for its own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:





     (i) prior to the occurrence of any Guarantee Event of Default and after the
curing or waiving of all such Guarantee Events of Default that may have occurred:




	 	(A)	 	the duties and obligations of the
Guarantee Trustee shall be determined solely by the express
provisions of this Guarantee, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee, and
no implied covenants or obligations shall be read into this
Guarantee against the Guarantee Trustee; and




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	 	(B)	 	in the absence of bad faith on
the part of the Guarantee Trustee, the Guarantee Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and
conforming to the requirements of this Guarantee; but in the
case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the
Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform to
the requirements of this Guarantee;






     (ii) the Guarantee Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer of the Guarantee Trustee, unless it shall be
proved that the Guarantee Trustee was negligent in ascertaining the pertinent facts
upon which such judgment was made;




     (iii) the Guarantee Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the direction of
the Holders of not less than a Majority in Liquidation Amount of the Securities
relating to the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power conferred upon
the Guarantee Trustee under this Guarantee; and




     (iv) no provision of this Guarantee shall require the Guarantee Trustee to
expend or risk its own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its rights or powers,
if the Guarantee Trustee shall have reasonable grounds for believing that the
repayment of such funds or liability is not reasonably assured to it under the terms
of this Guarantee or if the Guarantee Trustee shall have reasonable grounds
for believing that an indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured to it under the
terms of this Guarantee.



     SECTION 3.2. Certain Rights of Guarantee Trustee. (a) Subject to the provisions of
Section 3.1:




     (i) The Guarantee Trustee may conclusively rely, and shall be fully protected
in acting or refraining from acting upon, any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by the proper party
or parties;




     (ii) Any direction or act of the Guarantor contemplated by this Guarantee shall
be sufficiently evidenced by an Officers’ Certificate;



- 8 -









 






     (iii) Whenever, in the administration of this Guarantee, the Guarantee Trustee
shall deem it desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on its
part, request and conclusively rely upon an Officers’ Certificate which, upon
receipt of such request, shall be promptly delivered by the Guarantor;




     (iv) The Guarantee Trustee shall have no duty to see to any recording, filing
or registration or any instrument (or any rerecording, refiling or re-registration
thereof);




     (v) The Guarantee Trustee may consult with counsel, and the advice or opinion
of such counsel with respect to legal matters shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or opinion. Such
counsel may be counsel to the Guarantor or any of its Affiliates and may include any
of its employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee from any court of
competent jurisdiction;




     (vi) The Guarantee Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Guarantee at the request or direction of any
Holder, unless such Holder shall have provided to the Guarantee Trustee such
security and indemnity, reasonably satisfactory to the Guarantee Trustee, against
the costs, expenses (including attorneys’ fees and expenses and the expenses of the
Guarantee Trustee’s agents, nominees or custodians) and liabilities that might be
incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided, that
nothing contained in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of a Guarantee Event of Default, of its obligation
to exercise the rights and powers vested in it by this Guarantee;




     (vii) The Guarantee Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the Guarantee
Trustee, in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;




     (viii) The Guarantee Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents, nominees,
custodians or attorneys, and the Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney appointed with due
care by it hereunder;



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     (ix) Any action taken by the Guarantee Trustee or its agents hereunder shall
bind the Holders, and the signature of the Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third party shall
be required to inquire as to the authority of the Guarantee Trustee to so act or as
to its compliance with any of the terms and provisions of this Guarantee, both of
which shall be conclusively evidenced by the Guarantee Trustee’s or its agent’s
taking such action; and




     (x) Whenever in the administration of this Guarantee, the Guarantee Trustee
shall deem it desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Guarantee Trustee (i) may request
written instructions from the Holders of a Majority in Liquidation Amount of the
Securities, (ii) may refrain from enforcing such remedy or right or taking such
other action until such written instructions are received and (iii) shall be
protected in conclusively relying on or acting in accordance with such written
instructions.



          (b) No provision of this Guarantee shall be deemed to impose any duty or obligation on the
Guarantee Trustee to perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the
Guarantee Trustee shall be unqualified or incompetent to act in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Guarantee Trustee shall be construed to be a duty.




ARTICLE 4




GUARANTEE TRUSTEE




     SECTION 4.1. Guarantee Trustee; Eligibility.



          (a) There shall be at all times a Guarantee Trustee which shall:





     (i) not be an Affiliate of the Guarantor; and




     (ii) be a corporation organized and doing business under the laws of the United
States of America or any state or territory thereof or of the District of Columbia,
or a corporation or other Person permitted by the Securities and Exchange Commission
to act as an institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by federal, state, territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the supervising or examining authority referred to above,
then, for the purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its



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combined capital and surplus as set
forth in its most recent report of condition so published.



          (b) If at any time the Guarantee Trustee shall cease to be eligible to so act under Section
4.1(a), the Guarantee Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).




          (c) If the Guarantee Trustee has or shall acquire any “conflicting interest” within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and Guarantor shall in
all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.




     SECTION 4.2. Appointment, Removal and Resignation of Guarantee Trustee.



          (a) Subject to Section 4.2(b), unless a Guarantee Event of Default shall have occurred and be
continuing, the Guarantee Trustee may be appointed or removed with or without cause at any time by
the Guarantor.




          (b) The Guarantee Trustee shall not be removed in accordance with Section 4.2(a) until a
Successor Guarantee Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the Guarantor.




          (c) The Guarantee Trustee appointed to office shall hold such office until a Successor
Guarantee Trustee shall have been appointed or until its removal or resignation. The Guarantee
Trustee may resign from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Guarantee Trustee and delivered to
the Guarantor and the resigning Guarantee Trustee.




          (d) If no Successor Guarantee Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery to the Guarantor of an instrument of
removal or resignation, the removed or resigning Guarantee Trustee may petition any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a Successor Guarantee
Trustee.




          (e) No Guarantee Trustee shall be liable for the acts or omissions to act of any Successor
Guarantee Trustee.




          (f) Upon termination of this Guarantee or removal or resignation of the Guarantee Trustee
pursuant to this Section 4.2, the Guarantor shall pay to the Guarantee Trustee all amounts owing
for fees and reimbursement of expenses which have accrued to the date of such termination, removal
or resignation.




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ARTICLE 5




GUARANTEE




     SECTION 5.1. Guarantee.



          The Guarantor irrevocably and unconditionally agrees to pay in full to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by the Trust), as and when due,
regardless of any defense, right of set-off or counterclaim that the Trust may have or assert. The
Guarantor’s obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Guarantor to the Holders or by causing the Trust to pay such amounts to the
Holders. Notwithstanding anything to the contrary herein, the Guarantor retains all of its rights
under the Indenture to defer the interest payments on the ICONs pursuant to the terms thereof and
the Guarantor shall not be obligated hereunder to make any Guarantee Payments during any Extension
Period or APM Period (as defined in the Indenture) with respect to the Distributions (as defined in
the Trust Agreement) on the Securities.




     SECTION 5.2. Waiver of Notice and Demand.



          The Guarantor hereby waives notice of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to require a proceeding
first against the Trust or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other notices and demands.




     SECTION 5.3. Obligations Not Affected.



          The obligations, covenants, agreements and duties of the Guarantor under this Guarantee shall
be absolute and unconditional and shall remain in full force and effect until the entire
liquidation amount of all outstanding Securities shall have been paid and such obligation
shall in no way be affected or impaired by reason of the happening from time to time of any
event, including without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:





     (a) The release or waiver, by operation of law or otherwise, of the performance or
observance by the Trust of any express or implied agreement, covenant, term or condition
relating to the Securities to be performed or observed by the Trust;




     (b) The extension of time for the payment by the Trust of all or any portion of the
Distributions, Redemption Price, Liquidation Distribution or any other sums payable under
the terms of the Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with the Securities (other than an
extension of time for payment of Distributions, Redemption Price, Liquidation Distribution
or other sum payable that results from the extension of any interest payment period on the
ICONs);



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     (c) Any failure, omission, delay or lack of diligence on the part of the Property
Trustee or the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Property Trustee or the Holders pursuant to the terms of the Securities, or
any action on the part of the Trust granting indulgence or extension of any kind;




     (d) The voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other similar
proceedings affecting, the Trust or any of the assets of the Trust;




     (e) Any invalidity of, or defect or deficiency in, the Securities;




     (f) The settlement or compromise of any obligation guaranteed hereby or hereby
incurred; or




     (g) Any other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a guarantor, it being the intent of this Section 5.3 that
the obligations of the Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.



          There shall be no obligation of the Guarantee Trustee or the Holders to give notice to, or
obtain consent of the Guarantor or any other Person with respect to the happening of any of the
foregoing.




          No setoff, counterclaim, reduction or diminution of any obligation, or any defense of any kind
or nature that the Guarantor has or may have against any Holder shall be available hereunder to the
Guarantor against such Holder to reduce the payments to it under this Guarantee.




     SECTION 5.4. Rights of Holders.



          (a) The Holders of at least a Majority in Liquidation Amount of the Securities have the right
to direct the time, method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under this Guarantee.




          (b) If the Guarantee Trustee fails to enforce this Guarantee, then any Holder of Securities
may, subject to the subordination provisions of Section 6.2, institute a legal proceeding directly
against the Guarantor to enforce the Guarantee Trustee’s rights under this Guarantee without first
instituting a legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, if the Guarantor has failed to make a Guarantee Payment, a Holder of
Securities may, subject to the subordination provisions of Section 6.2, directly institute a
proceeding against the Guarantor for enforcement of the Guarantee for such payment to the Holder of
the Securities of the principal of or interest on the ICONs on or after the respective due dates
specified in the ICONs, and the amount of the payment will be based on the Holder’s pro rata share
of the amount due and owing on all of the Securities. The Guarantor





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hereby waives any right or
remedy to require that any action on this Guarantee be brought first against the Trust or any other
person or entity before proceeding directly against the Guarantor.




     SECTION
5.5. Guarantee of Payment.



          This Guarantee creates a guarantee of payment and not of collection.




     SECTION 5.6. Subrogation.



          The Guarantor shall be subrogated to all (if any) rights of the Holders of Securities against
the Trust in respect of any amounts paid to such Holders by the Guarantor under this Guarantee;
provided, however, that the Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right that it may acquire by way of
subrogation or any indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Guarantee, if at the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay over such amount to
the Guarantee Trustee for the benefit of the Holders.




     SECTION
5.7. Independent Obligations.



          The Guarantor acknowledges that its obligations hereunder are independent of the obligations
of the Trust with respect to the Securities, and that the Guarantor shall be liable as principal
and as debtor hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
notwithstanding the occurrence of any event referred to in subsections 5.3(a) through 5.3(g),
inclusive, hereof.




ARTICLE 6




LIMITATION OF TRANSACTIONS; SUBORDINATION




     SECTION 6.1. Limitation of Transactions.



          So long as any Securities remain outstanding, (i) if there shall have occurred an Event of
Default (as defined in the Indenture) with respect to the ICONs, (ii) if there shall have occurred
a Guarantee Event of Default or (iii) during any Extension Period or APM Period as provided in the
Indenture, then the Guarantor shall not, and shall not permit any subsidiary of the Guarantor, to
(x) declare or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Guarantor’s capital stock or (y) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem any debt securities of
the Guarantor that rank pari passu with or junior in interest to the ICONs or make any guarantee
payments with respect to any guarantee by the Guarantor of the debt securities of any subsidiary of
the Guarantor 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 Guarantor, (b) any declaration of a
dividend in connection with the implementation of a rights plan or the issuance of stock under any
such plan or the redemption or repurchase of any such rights pursuant thereto, (c) payments under
this Guarantee and (d) purchases of Common Stock




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related to the issuance of Common Stock or rights
under any of the Company’s benefits plans for its directors, officers or employees).




     SECTION 6.2. Ranking.



          This Guarantee will constitute an unsecured obligation of the Guarantor and will rank
subordinate and junior in right of payment to all Senior and Subordinated Debt (as defined in
Section 3.1(r) of the Second Supplemental Indenture) of the Guarantor in the same manner and to the
same extent as set forth in Article XIII of the Indenture.




     SECTION 6.3. Subordination of Common Securities.



          If a Trust Enforcement Event has occurred and is continuing under the Trust Agreement, the
rights of the holders of the Common Securities to receive Guarantee Payments hereunder shall be
subordinated to the rights of the Holders of the Capital Securities to receive Guarantee Payments
under this Guarantee.




ARTICLE 7




TERMINATION




     SECTION 7.1. Termination.



          This Guarantee shall terminate upon (i) full payment of the Redemption Price of all
Securities, (ii) distribution of the ICONs to the Holders of all the Securities or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon liquidation of the
Trust. Notwithstanding the foregoing, this Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Securities must restore payment of any
sums paid under the Securities or under this Guarantee.




ARTICLE 8




INDEMNIFICATION




     SECTION 8.1. Indemnification.



          The Guarantor agrees to indemnify each ICON Issuer Indemnified Person, the Property Trustee
and the Delaware Trustee (as each such term is defined in the Trust Agreement) for, and to hold
each such Person harmless against any loss, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the reasonable costs and expenses of defending itself against,
or investigating, any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The provisions of this Section 8.1 shall survive the termination
of this Guarantee or the resignation or removal of the Guarantee Trustee.




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ARTICLE 9




MISCELLANEOUS




     SECTION 9.1. Successors and Assigns.



          All guarantees and agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Securities then outstanding. Except in connection with a consolidation, merger or
sale involving the Guarantor that is permitted under Article VIII of the Indenture and pursuant to
which the successor or assignee agrees in writing to perform the Guarantor’s obligations hereunder,
the Guarantor shall not assign its obligations hereunder.




     SECTION 9.2. Amendments.



          Except with respect to any changes that do not materially adversely affect the rights of the
Holders (in which case no consent of the Holders will be required), this Guarantee may not be
amended without the prior approval of the Holders of at least a Majority in Liquidation Amount of
the Securities. The provisions of Section 11.2 of the Trust Agreement with respect to meetings of,
and action by written consent of, the Holders of the Securities apply to the giving of such
approval.




     SECTION 9.3. Notices.



          All notices provided for in this Guarantee shall be in writing, duly signed by the party
giving such notice, and shall be delivered by hand, telecopied or mailed by registered or certified
mail, as follows:





        (a) If given to the Guarantee Trustee, at the Guarantee Trustee’s mailing address set
forth below (or such other address as the Guarantee Trustee may give notice of to the
Guarantor and the Holders of the Securities):


Wilmington Trust Company

1100 North Market Street

Wilmington, Delaware 19890

Facsimile No.: (302) 636-4145

Attention: Corporate Trust Administration





     (b) If given to the Guarantor, at the Guarantor’s mailing addresses set forth below (or
such other address as the Guarantor may give notice of to the Guarantee Trustee and the
Holders of the Securities):



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U.S. Bancorp

800 Nicollet Mall

Minneapolis, Minnesota 55402

Facsimile No.: (612) 303-1338

Attention: Treasury Department





     (c) If given to any Holder of Securities, at the address set forth on the books and
records of the Trust.



          All such notices shall be deemed to have been given when received in person, telecopied with
receipt confirmed, or mailed by first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered on the date of such
refusal or inability to deliver.




     SECTION 9.4. Benefit.



          This Guarantee is solely for the benefit of the Holders of the Securities and, subject to
Section 3.1(a), is not separately transferable from the Securities.



     SECTION 9.5. Governing Law. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.



[The remainder of this page left blank intentionally; the signature page follows.]




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          IN WITNESS WHEREOF, this Guarantee is executed as of the day and year first above written.




	 	 	 	 	 
	 	U.S. BANCORP,

    as Guarantor

 	 
	 	By:  	        /s/ Daryl N. Bible
 	 
	 	 	Name:  	Daryl N. Bible 	 
	 	 	Title:  	Executive Vice President and Treasurer 	 
	 
	 	WILMINGTON TRUST COMPANY,

as Guarantee Trustee

 	 
	 	By:  	        /s/ Denise M. Geran
 	 
	 	 	Name:  	Denise M. Geran 	 
	 	 	Title:  	Vice President 	 
	 




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