8-K

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported):   February 1, 2007

U.S. BANCORP

(Exact name of registrant as specified in its charter)

1-6880
(Commission File Number)

DELAWARE	41-0255900
(State or other jurisdiction of incorporation)	(I.R.S. Employer Identification Number)

800 Nicollet Mall
Minneapolis, Minnesota 55402
(Address of principal executive offices and zip code)

(651) 466-3000
(Registrant’s telephone number, including area code)

(not applicable)
(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 Under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 8.01.      Other Events.

U.S. Bancorp, a Delaware corporation (the “Company”), and USB Capital XII, a statutory trust formed under the laws of the State of Delaware (the “Trust”), closed on February 1, 2007 the public offering of $500,000,000 aggregate principal amount of the Trust’s 6.30% Trust Preferred Securities (the “Capital Securities”), representing preferred beneficial interests in the Trust, pursuant to an Underwriting Agreement dated January 25, 2007, between the Company, the Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and UBS Securities LLC, as representatives (the “Representatives”) of the underwriters named in Schedule I thereto (collectively, the “Underwriters”), which incorporates by reference the U.S. Bancorp Underwriting Agreement Standard Provisions (Capital Securities) (December 21, 2005). The Capital Securities are fully, irrevocably and unconditionally guaranteed on a subordinated basis by the Company pursuant to a Guarantee Agreement (the “Guarantee”) between the Company and Wilmington Trust Company, as Guarantee Trustee. The proceeds from the sale of the Capital Securities, together with the proceeds from the sale by the Trust of its common securities, were invested by the Trust in 6.30% Income Capital Obligation Notes (the “ICONs”), due 2067, issued pursuant to a Junior Subordinated Indenture (the “Indenture”) dated April 28, 2005, as supplemented by the First Supplemental Indenture dated August 3, 2005, as supplemented by the Second Supplemental Indenture dated December 29, 2005, as supplemented by the Third Supplemental Indenture dated March 17, 2006, as supplemented by the Fourth Supplemental Indenture dated April 12, 2006, as supplemented by the Fifth Supplemental Indenture dated August 30, 2006 and as supplemented by the Sixth Supplemental Indenture dated February 1, 2007 between the Company and Wilmington Trust Company, as successor trustee to Delaware Trust Company, National Association, as Debenture Trustee. The Capital Securities, the ICONs and the Guarantee have been registered under the Securities Act of 1933, as amended, by a registration statement on Form S-3 (File No. 333-124535).

On February 1, 2007, in connection with the closing of the Capital Securities offering, the Company entered into a Replacement Capital Covenant (the “RCC”), whereby the Company agreed for the benefit of certain of its debtholders named therein that it would not redeem or purchase, or cause the Trust to redeem or purchase, the Capital Securities or the ICONs unless such purchases or redemptions are made from the proceeds of the issuance of certain qualified securities and pursuant to the other terms and conditions set forth in the RCC. A copy of the RCC is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

Item 9.01.      Financial Statements and Exhibits.

d) Exhibits.

1.1Underwriting Agreement, dated January 25, 2007, between U.S. Bancorp, the Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and UBS Securities LLC, as Representatives of the Underwriters.

1.2U.S. Bancorp Underwriting Agreement Standard Provisions (Capital Securities) (incorporated by reference to Exhibit 1.2 of the current Report on Form 8-K of U.S. Bancorp dated December 29, 2005).

4.1Sixth Supplemental Indenture dated February 1, 2007, between U.S. Bancorp and Wilmington Trust Company, as successor trustee (Annexes B and C to the Sixth Supplemental Indenture are set forth in Exhibits 4.4 and 4.5, respectively).

4.2Specimen Capital Security Certificate (included as part of Exhibit 4.4).

4.3Specimen 6.30% Income Capital Obligation Note, due 2067 (included as part of Exhibit 4.1).

4.4Amended and Restated Trust Agreement dated February 1, 2007 between U.S. Bancorp, Wilmington Trust Company, as Delaware Trustee and Property Trustee and the Administrative Trustees named therein.

4.5Guarantee Agreement dated February 1, 2007 between U.S. Bancorp and Wilmington Trust Company, as Guarantee Trustee.

99.1Replacement Capital Covenant of U.S. Bancorp, dated as of February 1, 2007.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	U.S. BANCORP
Date: February 1, 2007	By:	/s/ Lee R. Mitau
		Lee R. Mitau
		Executive Vice President, General Counsel and Secretary

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Exhibit Index

1.1Underwriting Agreement, dated January 25, 2007, between U.S. Bancorp, the Trust and Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co. Incorporated and UBS Securities LLC, as Representatives of the Underwriters.

1.2U.S. Bancorp Underwriting Agreement Standard Provisions (Capital Securities) (incorporated by reference to Exhibit 1.2 of the current Report on Form 8-K of U.S. Bancorp dated December 29, 2005).

4.1Sixth Supplemental Indenture dated February 1, 2007, between U.S. Bancorp and Wilmington Trust Company, as successor trustee (Annexes B and C to the Sixth Supplemental Indenture are set forth in Exhibits 4.4 and 4.5, respectively).

4.2Specimen Capital Security Certificate (included as part of Exhibit 4.4).

4.3Specimen 6.30% Income Capital Obligation Note, due 2067 (included as part of Exhibit 4.1).

4.4Amended and Restated Trust Agreement dated February 1, 2007 between U.S. Bancorp, Wilmington Trust Company, as Delaware Trustee and Property Trustee and the Administrative Trustees named therein.

4.5Guarantee Agreement dated February 1, 2007 between U.S. Bancorp and Wilmington Trust Company, as Guarantee Trustee.

99.1Replacement Capital Covenant of U.S. Bancorp, dated as of February 1, 2007.

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EX-1.1

Exhibit 1.1

EXECUTION COPY

UNDERWRITING AGREEMENT

January 25, 2007

U.S. Bancorp
USB Capital XII
800 Nicollet Mall
Minneapolis, MN 55402

Ladies and Gentlemen:

We (the “Representatives”) understand that USB Capital XII, a statutory trust formed under the laws of the State of Delaware (the “Trust”), and U.S. Bancorp, a Delaware corporation, as sponsor of the Trust and as guarantor (the “Guarantor”), propose that the Trust issue and sell to the several underwriters named in Schedule I (the “Underwriters”) 20,000,000 6.30% Trust Preferred Securities (liquidation amount $25 per Preferred Security) with an aggregate liquidation amount of $500,000,000 (the “Firm Securities”) representing preferred beneficial interests in the Trust.  In addition, the Guarantor and the Trust grant to the Underwriters the right to request the opportunity to purchase up to an additional 3,000,000 Trust Preferred Securities (the “Optional Securities,” and together with the Firm Securities, the “Offered Securities”).  The Offered Securities are fully and unconditionally guaranteed by U.S. Bancorp.  The Guarantor will be the owner of all of the beneficial ownership interests represented by the common securities (liquidation amount $25 per common security) issued by the Trust (the “Common Securities”).  Proceeds from the sale of the Offered Securities to the Underwriters and from the concurrent sale of the Common Securities to the Guarantor will be used to purchase 6.30% Income Capital Obligation NotesSM due February 15, 2067 of the Guarantor (the “ICONs” and, for purposes of the Standard Underwriting Agreement (defined below), are also referred to as the “Junior Subordinated Debentures”).  The ICONs will be issued by the Guarantor pursuant to a Junior Subordinated Indenture, dated as of April 28, 2005, as amended and supplemented through the Closing Date (as defined below), (the “Indenture”) between the Guarantor and Wilmington Trust Company, as successor trustee to Delaware Trust Company, National Association (the “Debenture Trustee”).

The Guarantor will, through the Indenture, the ICONs, the Amended and Restated Trust Agreement, by and among U.S. Bancorp, as Sponsor, Wilmington Trust Company, as Property Trustee, Wilmington Trust Company, as Delaware Trustee and the Administrative Trustees named therein, as amended and supplemented (the “Trust Agreement”), the Guarantee Agreement (the “Guarantee”) between the Guarantor and Wilmington Trust Company, as trustee (the “Guarantee Trustee”), taken together, fully, irrevocably and unconditionally guarantee on a subordinated basis all of the Trust’s obligations under the Offered Securities.

Subject to the terms and conditions set forth herein and incorporated by reference herein, the Guarantor and the Trust hereby agree that the Guarantor shall sell to each of the

Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase the number of the Firm Securities set forth opposite the name of such Underwriter at a purchase price of $24.2125 per Firm Security, plus accrued distributions, if any (the “Purchase Price”); provided that, for sales by any Underwriter of more than 20,000 Firm Securities to a single purchaser, the Purchase Price per Firm Security will be $24.50 (the “Institutional Price”) .  The Representatives will provide notice to the Company of the number of Firm Securities to which the Institutional Price applies.  The respective number of Firm Securities to be purchased by each of the Underwriters at the foregoing prices shall be that proportion of Firm Securities which the number of Firm Securities to be purchased by such Underwriter as set forth on Schedule I bears to the aggregate number of Firm Securities (rounded as the Representatives may determine to the nearest 10 Offered Securities).  In addition, subject to the terms and conditions set forth herein and incorporated by reference herein, the Guarantor and the Trust grant to the Underwriters the right to request the opportunity to purchase the Optional Securities at a purchase price of $24.2125 per Optional Security, plus accrued distributions, if any.  The opportunity to purchase the Optional Securities hereunder is for use by the Underwriters solely for the purpose of covering over-allotments in the sale of the Firm Securities.  The right to request the opportunity to purchase the Optional Shares may be exercised at any time upon notice by the Representatives to the Guarantor and the Trust; provided that such purchase transaction shall have settled on a T+3 basis on or before February 24, 2007.

The Offered Securities shall have the terms that are further described in the Statutory Prospectus and the term sheet specified in Schedule II hereto.

Except as otherwise provided herein, all the provisions contained in the document entitled “U.S. Bancorp Underwriting Agreement Standard Provisions (Capital Securities) (December 21, 2005)” (the “Standard Underwriting Agreement”) are herein incorporated by reference in their entirety and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such provisions had been set forth in full herein.  Capitalized terms used herein and not otherwise defined herein shall have the meanings given to them in the Standard Underwriting Agreement.

For the purposes of this Underwriting Agreement only, the “Applicable Time” is 4:15 p.m. (Eastern time) on the date of this Underwriting Agreement.

For purposes of this Underwriting Agreement only, the term “Underwriters’ Counsel” as used in the Standard Underwriting Agreement shall mean Shearman & Sterling LLP.

For purposes of this Underwriting Agreement only, the term “Special Tax Counsel” as used in the Standard Underwriting Agreement shall mean Squire, Sanders & Dempsey L.L.P.  Additionally, for purposes of this Underwriting Agreement only, the term “Guarantor Agreements” as used throughout the Standard Underwriting Agreement shall also include the ICONs Replacement Capital Covenant to be executed by the Company for the benefit of holders of debt specified therein.

For purposes of this Underwriting Agreement only, Article (V)(g) of the Standard Underwriting Agreement shall be deleted in its entirety and replaced with the following:

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“(g)         The Representatives shall receive a letter dated the date of the applicable Underwriting Agreement, in form and substance satisfactory to the Representatives, from Ernst & Young LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the General Disclosure Package.”

For purposes of this Underwriting Agreement only, Article (VI)(h) of the Standard Underwriting Agreement shall be deleted in its entirety and replaced with the following:

“(h)         During the period of 15 days from the date of the Underwriting Agreement, the Guarantor and Trust will not offer, sell, contract to sell or otherwise dispose of any Offered Securities, any other beneficial interest in the assets of the Trust, or any other securities of the Trust or any other similar trust which are substantially similar to the Offered Securities, including any guarantee of such securities, or any junior subordinated debentures of the Guarantor issued to the Trust or other similar trust, or any securities convertible into or exchangeable for or representing the right to receive Offered Securities, or any such substantially similar securities of the Trust or any other similar trust, or any other junior subordinated debentures of the Guarantor issued to the Trust or other similar trust, without the prior written consent of the Representatives.”

Certificates for the Firm Securities purchased by each Underwriter shall be delivered by or on behalf of the Guarantor to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the Purchase Price therefor in federal (same day) funds, on the “Closing Date,” which shall be 10:00 AM (New York City time) on February 1, 2007 at the offices of Shearman & Sterling LLP, 599 Lexington Avenue, New York, New York 10022, or at such other place and time as the Representatives, the Guarantor and the Trust may agree upon in writing.  Delivery to the Underwriters of and payment to the Guarantor for any Optional Securities to be purchased by the Underwriters shall be made at the aforementioned offices of Shearman & Sterling LLP, or at such other place and time as the Representatives, the Guarantor and the Trust may agree upon in writing, at such time on such date, which may be the same as the Closing Date, but shall in no event be earlier than the Closing Date nor earlier than two nor later than three business days after the giving of the notice to exercise the option of the Underwriters.

This document 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 document.

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Please confirm your agreement by having an authorized officer sign a copy of this Agreement in the space set forth below and returning the signed copy to us.

MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
MORGAN STANLEY & CO. INCORPORATED
UBS SECURITIES LLC
Acting severally on behalf of themselves and as representatives of the several Underwriters named in Schedule I annexed hereto.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:	/s/ Jason Braunstein
	Name: Jason Braunstein
	Title: Managing Director
By: MORGAN STANLEY & CO. INCORPORATED
By:	/s/ Michael Fusco
	Name: Michael Fusco
	Title: Executive Director
By: UBS SECURITIES LLC
By:	/s/ Edward Arden
	Name: Edward Arden
	Title: Managing Director
By:	/s/ Robert L. Bacon
	Name: Robert L. Bacon
	Title: Associate Director

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Accepted by:
U.S. BANCORP, as Guarantor
By:	/s/ Daryl N. Bible
Name:		Daryl N. Bible
Title:		Executive Vice President and Treasurer
USB CAPITAL XII
By: U.S. Bancorp, as Sponsor
By:	/s/ Daryl N. Bible
Name:		Daryl N. Bible
Title:		Executive Vice President and Treasurer

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SCHEDULE I

	Underwriters’ Commitment to Purchase Firm Securities
Merrill Lynch, Pierce, Fenner & Smith Incorporated	2,432,514
Morgan Stanley & Co. Incorporated	2,432,500
UBS Securities LLC	2,432,500
A.G. Edwards & Sons, Inc.	2,431,875
Citigroup Global Markets Inc.	2,431,875
RBC Dain Rauscher Inc.	2,431,875
Wachovia Capital Markets, LLC	2,431,875
Banc of America Securities LLC	200,000
Bear, Stearns & Co. Inc.	200,000
Charles Schwab & Co., Inc.	200,000
Credit Suisse Securities (USA) LLC	200,000
Goldman, Sachs & Co.	200,000
Jefferies & Company, Inc.	200,000
Lehman Brothers Inc.	200,000
Stifel, Nicolaus & Company, Incorporated	200,000
BB&T Capital Markets, a division of Scott & Stringfellow, Inc.	83,333
H&R Block Financial Advisors, Inc.	83,333
HSBC Securities (USA) Inc.	83,333
KeyBanc Capital Markets, a division of McDonald Investments Inc.	83,333
Morgan Keegan & Company, Inc.	83,333
Oppenheimer & Co. Inc.	83,333
Raymond James & Associates, Inc.	83,333
TD Ameritrade, Inc.	83,333
Robert W. Baird & Co. Incorporated	41,666
Crowell, Weedon & Co.	41,666
D.A. Davidson & Co.	41,666
Davenport & Company LLC	41,666
Ferris, Baker Watts, Incorporated	41,666
Fixed Income Securities, LP	41,666
Guzman & Company	41,666
J.J.B. Hilliard, W.L. Lyons, Inc.	41,666
Janney Montgomery Scott LLC	41,666
Keefe, Bruyette & Woods, Inc.	41,666
Mesirow Financial, Inc.	41,666
Pershing LLC	41,666
Sandler, O’Neill & Partners, L.P.	41,666
Sterne, Agee & Leach, Inc.	41,666
Stone & Youngberg LLC	41,666
SunTrust Capital Markets, Inc.	41,666
B.C. Ziegler and Company	41,666
Total	20,000,000

Sch. I-1

SCHEDULE II

Materials other than the Statutory Prospectus that comprise the General Disclosure Package:  Term Sheet, dated January 25, 2007.

Sch. II-1

EX-4.1

Exhibit 4.1

SIXTH SUPPLEMENTAL INDENTURE

between

U.S. BANCORP

and

WILMINGTON TRUST COMPANY,
as Trustee

DATED AS OF FEBRUARY 1, 2007

Supplement to Junior Subordinated Indenture dated as of April 28, 2005, as supplemented by that certain First Supplemental Indenture dated as of August 3, 2005 and that certain Second Supplemental Indenture dated as of December 29, 2005 and that certain Third Supplemental Indenture dated as of March 17, 2006 and that certain Fourth Supplemental Indenture dated as of April 12, 2006 and that certain Fifth Supplemental Indenture dated as of August 30, 2006

SIXTH SUPPLEMENTAL INDENTURE, dated as of February 1, 2007 (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, WILMINGTON TRUST COMPANY, a Delaware banking corporation, as successor Trustee (hereinafter called the “Trustee”) and U.S. Bank National Association, as Securities Registrar and Paying Agent.

RECITALS

WHEREAS, the Company and 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”) have entered into that certain Junior Subordinated Indenture, dated as of April 28, 2005 (the “Base Indenture”), which was amended and supplemented by the First Supplemental Indenture, dated as of August 3, 2005 (the “First Supplemental Indenture”), which was further amended and supplemented by the Second Supplemental Indenture, dated as of December 29, 2005, among the Company, the Original Trustee and the Trustee (the “Second Supplemental Indenture”), which was further amended and supplemented by the Third Supplemental Indenture, dated as of March 17, 2006, (the “Third Supplemental Indenture”), which was further amended and supplemented by the Fourth Supplemental Indenture, dated as of April 12, 2006 (the “Fourth Supplemental Indenture”), and which was further amended and supplemented by the Fifth Supplemental Indenture, dated as of August 30, 2006 (the “Fifth Supplemental Indenture” and, together with the Junior Subordinated Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, and the Third Supplemental Indenture, the “Indenture”); providing for the issuance from time to time of Securities;

 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 6.30% Income Capital Obligation NotesSM due February 15, 2067, 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 and the 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 Commencement Date” means, with respect to any Deferral Period, the earlier of (i) the Date on which the Company elects to pay any current interest on the ICONs, and (ii) the fifth anniversary of the commencement of such Deferral Period.

“APM Period” means, with respect to any Deferral Period, a period commencing on an APM Commencement Date and ending on the next Interest Payment Date on which the Company has raised an amount of Eligible Proceeds at least equal to the aggregate amount of Deferred Interest, including Additional Interest thereon, on the ICONs.

“Bankruptcy Event” means any of the events set forth in Section 5.1(4), (5), (6) or (7) of the Indenture.

“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.

“Current Stock Market Price” of the Common Stock on any date shall mean (a) the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions by the New York Stock Exchange or, if the Common Stock is not then listed on the New York Stock Exchange, as reported by the principal U.S. securities exchange or The Nasdaq National Market on which the Common Stock is traded or quoted, (b) if the Common Stock is not either listed on any U.S. securities exchange or quoted on The Nasdaq National Market on the relevant date, the last quoted bid price for the Common Stock in the over-the-counter market on the relevant date as reported by the National Quotation Bureau or similar organization, or (c) if the Common Stock is not so quoted, the average of the mid-point of the last bid and ask prices for the Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

“Deferral Period” means each period beginning on an Interest Payment Date with respect to which the Company elects pursuant to Section 2.1(g) to defer all or part of any interest

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payable on such date and ending on the earlier of (a) the tenth anniversary of such Interest Payment Date and (b) the next Interest Payment Date on which the Company has paid all Deferred Interest (including Additional Interest thereon).

“Deferred Interest” means, as of any particular time, accrued interest that was not paid on the applicable Interest Payment Date or at any time thereafter.

“Eligible Equity” means (a) Qualifying Warrants and 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 (b) shares of the Company’s Perpetual Non-Cumulative Preferred Stock.

“Eligible Equity Proceeds” means, with respect to any 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 any combination of Eligible Equity (subject to the Warrant and Common Stock Issuance Cap and the Preferred Stock Issuance Cap) 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.

“Guarantee” has the meaning set forth in Section 2.1(a).

“ICONs” has the meaning set forth in Section 2.1(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.

“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, futures or options exchange or over-the-counter market on which the Company’s Eligible Equity is then listed or traded shall have been suspended or the settlement of such trading activity generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or market by the Securities and Exchange Commission, by the relevant exchange or by another regulatory body or governmental authority having jurisdiction, and the establishment of such

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minimum prices materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of the Company’s Eligible Equity;

(b)           the Company would be required to obtain the consent or approval of the Company’s shareholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue or sell 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, (1) 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 Deferral Period and sought such approval in accordance with Section 2.1(h)(iii) hereof or (2) failing to obtain approval of the FRB for the use of the proceeds of such issuance to pay Deferred Interest);

(c)           a banking moratorium shall have been declared by the federal or state authorities of the United States such that market trading in the Eligible Equity of the Company has been materially disrupted;

(d)           a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States such that market trading in the Eligible Equity of the Company has been materially disrupted;

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

(f)            there shall have occurred such a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities, such that market trading in the Eligible Equity of the Company has been materially disrupted;

(g)           the Company reasonably believes that the offering document for the offer and sale of the Eligible Equity of the Company would not be in compliance with a rule or regulation of the Securities and Exchange Commission and the Company is unable to comply with such rule or regulation or such compliance is unduly burdensome, provided that no single suspension period described in this subsection shall constitute a Market Disruption Event with respect to more than one Interest Payment Date; or

(h)           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 (1) 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 (2) the disclosure relates to

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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 after the immediately 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.

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

“Pari Passu Securities” means (a) indebtedness (1) the terms of which provide that such indebtedness ranks equally with the Company’s 6.35% Income Capital Obligation Notes  underlying the trust preferred securities issued by USB Capital VIII, the Company’s Junior Subordinated Notes underlying the 6.189% Fixed-to-Floating Rate Normal Income Trust Securities issued by USB Capital IX, the Company’s 6.50% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital X, the Company’s 6.60% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital XI and the ICONs and (2) that qualifies as, or is issued to financing vehicles issuing securities that qualify as, Tier 1 capital of the Company at the time of issuance under the capital guidelines of the FRB; and (b) guarantees of indebtedness described in clause (i) or securities issued by one or more financing vehicles described in clause (a)(2).

“Perpetual Non-Cumulative Preferred Stock” means shares of the Company’s perpetual non-cumulative preferred stock that (a) are subject to a replacement capital covenant similar to the Replacement Capital Covenant and/or (b) contain  provisions which would oblige the Company upon the occurrence of certain events to defer dividends.

“Preferred Stock Issuance Cap” has the meaning set forth in Section 2.1(h)(i).

“Qualifying Warrants” means net share settled warrants to purchase Common Stock that (a) have an exercise price per share greater than the Current Stock Market Price as of the date of issuance thereof and (b) the Company is not entitled to redeem for cash and the holders of which are not entitled to require the Company to repurchase for cash in any circumstance.

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“Replacement Capital Covenant” means the Replacement Capital Covenant, dated as of February 1, 2007, of the Company, as the same may be amended or supplemented from time to time in accordance with the provisions thereof.

“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 that is enacted or becomes effective after the initial issuance of the Capital Securities; or (2) any official or administrative pronouncement or action or judicial decision for interpreting or applying such laws or regulations, which is effective or announced on or after the initial 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.

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

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

“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 tax matters stating 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 affecting taxation that is enacted or becomes effective after the initial issuance of the Capital Securities; or interpretation or application of such laws or regulations by any court, governmental agency or regulatory authority that is announced after the initial issuance of the Capital Securities, 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 interest 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 minimal amount of other taxes, duties, assessments or other governmental charges.

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

“Trust” has the meaning set forth in Section 2.1(a) hereof.

“Trust Agreement” has the meaning set forth in Section 2.1(a) hereof.

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

“Warrant and Common Stock Issuance Cap” has the meaning set forth in Section 2.1(h)(i).

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ARTICLE II

 TERMS OF SERIES OF SECURITIES

Section 2.1.   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 “6.30% Income Capital Obligation NotesSM due February 15, 2067” of the Company (the “ICONs”). The ICONs initially shall be issued to USB Capital XII, a Delaware statutory trust (the “Trust”).  The Trust Agreement for the Trust shall be the Amended and Restated Trust Agreement, dated as of February 1, 2007, 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 February 1, 2007 (the “Guarantee”), between the Company and Wilmington Trust Company, as Guarantee Trustee.

(b)  Aggregate Principal Amount.  The maximum aggregate principal amount of the ICONs which may be authenticated and delivered under the Indenture and this Supplemental Indenture is $576,000,000 (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.

(d)  Maturity.  The principal amount of the ICONs shall be payable in full on February 15, 2067 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 6.30% per annum; the date from which such interest shall accrue is February 1, 2007; the Interest Payment Dates (as defined in the Indenture) on which such interest shall be payable are February 15, May 15, August 15 and November 15 of each year, commencing May 15, 2007.  Interest payments not paid when due will themselves accrue Additional Interest at the annual rate of 6.30% 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.

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

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(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.  Section 3.11 of the Indenture shall not apply to the ICONS, which shall be governed by the following provisions.

(i)            The Company shall have the right, at any time and from time to time prior to the Stated Maturity of the ICONs, to defer the payment of interest thereon for one or more Deferral Periods consisting of no more than 20 consecutive quarters without becoming subject to the obligations to issue Eligible Equity and pay Deferred Interest pursuant to Section 2.1(h) of this Supplemental Indenture. The Company shall also have the right, at any time and from time to time prior to the Stated Maturity of the ICONs, to defer payment of interest thereon for one or more Deferral Periods consisting of no more than 40 consecutive quarters without giving rise to an Event of Default under Section 2.1(i).   The Company may elect to so defer payment of interest by delivering to the Trustee written notice of such election at least ten and not more than 60 Business Days prior to the applicable Interest Payment Date.  Notwithstanding the foregoing, no Deferral Period shall extend beyond the Stated Maturity of the ICONs.

(ii)           During any Deferral Period, the Company shall not, and shall not permit any Subsidiary of the Company to, (1) 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), (2) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including the Company’s 6.35% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital VIII, the Company’s Junior Subordinated Notes underlying the 6.189% Fixed-to-Floating Rate Normal Income Trust Securities issued by USB Capital IX, the Company’s 6.50% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital X, the Company’s 6.60% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital XI)that rank pari passu with or junior in interest to the ICONs other than pro rata payments of accrued and unpaid interest on Pari Passu Securities except and to the extent the terms of any Pari Passu Securities would prohibit the Company from making such pro rata payment; or (3) 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 pro rata payments of accrued and unpaid amounts on the Guarantee and any other Guarantees of the Company of debt securities of the Company’s subsidiaries that rank equally with Guarantee except and to the extent that terms of any such debt securities would prohibit from making such pro rata payment, other than in the case of each of clauses (1), (2) and (3):  (A) any dividends or distributions in

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additional shares of the Company’s capital stock (which includes common and preferred stock), (B) any payments under the Guarantee with respect to the Capital Securities and common securities of the Trust, (C) any declaration or payment of a dividend in connection with the implementation of a stockholders’ rights plan, or any issuance of stock under any such plan in the future or the redemption or repurchase of any such rights pursuant thereto, and (D) any 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.

(iii) Upon the payment of all Deferred Interest (including any Additional Interest thereon) then due on the ICONs (that has not been cancelled), the Company may elect to begin a new Deferral Period, which shall not extend beyond the Stated Maturity of the ICONs.  At the end of ten consecutive years of a Deferral Period, the Company shall pay all Deferred Interest (including Additional Interest thereon) on the ICONs to the extent permitted by applicable law, to the Persons in whose names the ICONs are registered at the close of business on the Regular Record Date with respect to the Interest Payment Date at the end of such Deferral Period.

(iv) Subject to Section 2.1(h)(vi), in the case of any Deferral Period that does not terminate on or prior to the first anniversary of the commencement of such Deferral Period, the restrictions set forth in Section 2.1(g)(ii) shall continue in effect in respect of any redemption, purchase or repurchase, acquisition or liquidation payment of the Company’s securities that rank pari passu with or junior in interest to the ICONs until the first anniversary of the termination of such Deferral Period.

(h)  Alternative Payment Mechanism; Payment of Deferred Interest.  With regard to each Interest Payment Date during any APM Period subsequent to the APM Commencement Date, except for any Interest Payment Date for which the Company has delivered a timely MDE Certification pursuant to Section 2.1(h)(ii) below or as otherwise provided below in this Section 2.1(h), the Company covenants to issue and sell on or immediately following an APM Commencement Date, Eligible Equity until the Company has raised an amount of Eligible Equity Proceeds at least equal to the aggregate amount of Deferred Interest (including Additional Interest thereon) on the ICONs that will be accrued and unpaid as of the next Interest Payment Date, and the Company shall apply such Eligible Equity Proceeds to pay such Deferred Interest on or before the next Interest Payment Date in accordance with Section 2.1(h)(iv) and, if applicable, Section 2.1(p) of this Supplemental Indenture.  Except as provided below in this Section 2.1(h), during any APM Period and on any date of redemption or repurchase, the Company covenants not to pay any Deferred Interest (including Additional Interest thereon) from any source other than Eligible Equity Proceeds.  For the avoidance of doubt, the Company may pay current interest at all times from any available funds.  If, due to a Market Disruption Event, the Company is able to raise some but not all, Eligible Equity Proceeds in respect of an Interest Payment Date, the Company will apply any available Eligible Equity Proceeds to pay Deferred Interest on or before the such Interest Payment Date; provided, however, that if the Company has outstanding securities in addition to the ICONs under

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which the Company is obligated to sell Eligible Equity and apply the net proceeds to the payment of Deferred Interest, then on any date and for any period the amount of net proceeds received by the Company from such sales and available for the payment of Deferred Interest shall be applied to the ICONs and those other securities on a pro rata basis, or on such other basis as the FRB may approve.

(i)  The Company shall not be required to issue Eligible Equity pursuant to this Section 2.1(h) to the extent that:

(1) with respect to Deferred Interest attributable to the first 20 consecutive quarters of any Deferral Period (including Additional Interest thereon), the net proceeds of any issuance of Qualifying Warrants and shares of Common Stock applied to pay interest on the ICONs pursuant to this Section 2.1(h), together with the net proceeds of all prior issuances in connection with such Deferral Period of Qualifying Warrants or shares of Common Stock so applied, would exceed an aggregate amount equal to 2% of the product of the average of the Current Stock Market Prices of the Common Stock on the ten consecutive trading days ending on the fourth trading day immediately preceding the date of issuance multiplied by the total number of issued and outstanding shares of Common Stock as of the date of the most recent publicly available consolidated financial statements of the Company (the “Warrant and Common Stock Issuance Cap”); provided that once the Company reaches the Warrant and Common Stock Issuance Cap, the Company shall not be required to issue more Qualifying Warrants or Common Stock with respect to Deferred Interest attributable to the first twenty consecutive quarters of any Deferral Period (including Additional Interest thereon) even if the amount referred to in this clause (1) subsequently increases because of a subsequent increase in the sale price of Common Stock or the number of outstanding shares of Common Stock, or

(2) the net proceeds of any issuance of Perpetual Non-Cumulative Preferred Stock applied to pay interest on the ICONs pursuant to this Section 2.1(h), together with the net proceeds of all prior issuances of Perpetual Non-Cumulative Preferred Stock so applied, would exceed 25% of the aggregate principal amount of the ICONs initially issued under the Indenture (the “Preferred Stock Issuance Cap”).

(3) if the Company elects to satisfy its obligation to pay deferred interest pursuant to this Section 2.1(h) by issuing Qualifying Warrants, the Company will only do so if the total number of shares of Common Stock underlying such Qualifying Warrants applied to pay interest on the ICONs pursuant to this Section 2.1(h), together with the total number of shares of Common stock underlying all prior issuances of Qualifying Warrants so applied, does not exceed an amount equal to 15% of the total number of the Company’s issued and outstanding Common Stock as of the date of any proposed issuance.

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(ii) On or after an APM Commencement Date during any Deferral Period, the Company shall have the right to defer payment of interest due on the next Interest Payment Date and not be subject to the requirements to issue Eligible Equity and apply Eligible Equity Proceeds to pay Deferred Interest pursuant to Section 2.1(h), 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 ten Business Days in advance thereof, provided that the Company may not defer interest pursuant to this clause (ii) on or after the Stated Maturity or redemption of 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.

(iii) During any Deferral Period, the Company shall notify the FRB prior to or promptly after an APM Commencement Date and shall seek the approval of the FRB if and when required from time to time for the issuance, offer or sale of Eligible Equity and the application of the Eligible Equity Proceeds to pay Deferred Interest.  In the event the FRB shall have disapproved of the sale of Eligible Equity pursuant to this Section 2.1(h), the Company shall be permitted to pay Deferred Interest from any source.  In the event the FRB shall not disapprove of the sale of Eligible Equity, but shall have nonetheless disapproved of the use of the Eligible Equity Proceeds to pay Deferred Interest, the Company may use such Eligible Equity Proceeds for other purposes and shall be permitted to pay Deferred Interest from any source.

(iv)    To the extent that the Company applies Eligible Equity Proceeds to pay Deferred Interest pursuant to this Section 2.1(h), such Eligible Equity Proceeds shall be allocated first to payments of Deferred Interest (including Additional Interest thereon) in chronological order based on the date each such interest payment was first deferred.  The payment of interest from any other source shall be applied to current interest as notified to the Trustee prior to the applicable Interest Payment Date.  To the extent any payment made by the Company with respect to any Deferred Interest (including Additional Interest thereon) is insufficient to pay Deferred Interest (including Additional Interest thereon) in full, such payment shall be applied pro rata to the outstanding ICONs.

(v)  If on any date or for any period the Company pays interest on any class of Pari Passu Securities that is less than the full amount of accrued but unpaid interest, the Company shall make payments on all outstanding classes of Pari Passu Securities on the same date for the corresponding period on a pro rata basis (based on the total amount then due), except and to the extent the terms of any such Pari Passu Securities would prohibit the Company from making any such pro rata payment.

(vi)  If the Company engages in any transaction that is subject to Section 8.1 of the Indenture, where immediately after the consummation of such transaction more than 50% of the voting stock of the Person formed by such transaction, or the Person that is the surviving entity of such transaction, or the

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Person to whom such properties and assets are conveyed, transferred or leased in such transaction, is owned by the shareholders of the other party to such transaction, then, with respect to any Deferral Period that is terminated on the earlier of (a) the second Interest Payment Date and (b) 90 days, in each case following the date of consummation of such transaction, Section 2.1(g)(iv) shall not apply.

(vii) At any time during a Deferral Period prior to an APM Commencement Date, the Company may elect to pay all or any portion of the Deferred Interest (including Additional Interest thereon), by notifying the Trustee in writing at least ten days prior to the proposed payment date of the amount of Deferred Interest proposed to be paid and of the proposed payment date, provided that the Company makes such payment of Deferred Interest pursuant to and in accordance with Section 2.1(h), provided further that prior to making any such payment of Deferred Interest (including Additional Interest thereon) the Company shall have deposited with the Trustee an amount of money from any source equal to the amount of current interest that will be accrued and payable on the next Interest Payment Date or shall make arrangements satisfactory to the Trustee for such deposit prior to such Interest Payment Date; such money when deposited to be held in trust for the benefit of the Persons entitled to such payment of current interest as provided herein.  For purposes of determining the APM Commencement Date with respect to the applicable Deferral Period, the date on which such written notice is given shall constitute the APM Commencement Date.

(i)  Events of Default.  (i) Solely for purposes of the ICONs, Section 5.1(1) of the Indenture shall be replaced by the following:

“(1)         default in the payment of interest, including any Additional Interest in respect thereof, in full on any ICONs for a period of 30 days after the conclusion of a period consisting of forty consecutive quarters commencing with the quarter following the earliest quarter for which interest has not been paid in full.”

(ii)           Solely for purposes of the ICONs, Section 5.2 of the Indenture shall be replaced by the following:

“If an Event of Default specified in Section 5.1(1) with respect to Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have the right to declare the principal amount of, and accrued interest (including any Additional Interest) on, all the ICONs to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), provided that if the Trustee or the Holders of not less than 25% in principal amount of the Outstanding ICONs fail to declare the principal of, and accrued interest (including any Additional Interest) on, all the Securities of that series to be immediately due and payable, then the holders of at least 25% in aggregate liquidation amount of the

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corresponding series of Capital Securities then outstanding shall have such right by a notice in writing to the Company and the Trustee; and upon any such declaration such principal amount (or specified portion thereof) of, and the accrued interest (including any Additional Interest) on, all the ICONs shall become immediately due and payable. Payment of principal and interest (including any Additional Interest) on the ICONs shall remain subordinated to the extent provided in Article XIII notwithstanding that such amount shall become immediately due and payable as herein provided. If an Event of Default specified in Section 5.1(4), (5), (6) or (7) with respect to the ICONs at the time Outstanding occurs, the principal amount of all the ICONs shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.”

(iii)          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, the failure to comply with the provisions of Section 2.1(g) and Section 2.1(h) of this Supplemental Indenture), except those that are specifically identified as an Event of Default under the Indenture.

(j)  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 Paying Agent, 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 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 of the Paying Agent.

(k)  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 February 15, 2012, 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.

(l)  Limitation on Claims in the Event of Bankruptcy, Insolvency or Receivership.  Each Holder, by such Holder’s acceptance of the ICONs, consents to and agrees that if a

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Bankruptcy Event shall occur prior to the redemption or repayment of the ICONs, such Holder shall have no claim for, and thus no right to receive, any Deferred Interest (including any Additional Interest thereon) to the extent it exceeds an amount equal to the Deferred Interest for the first eight quarters of the applicable Deferral Period (including Additional Interest on such eight quarter’s worth of Deferred Interest) on such Holder’s ICONs, and the obligation of the Company to pay any Deferred Interest exceeding such amount shall be permanently cancelled.

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

(n)  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.

(o)  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 or the Company’s trade account payables and accrued liabilities arising in the ordinary course of business.”

(p) Special Record Date for the Payment of Deferred Interest.  The Company may elect to make a payment of any Deferred Interest on a date that is not an Interest Payment Date to the Persons in whose names the ICONs are registered at the close of business on a Special Record Date for the payment of such Deferred Interest, which shall be fixed in the following manner.  The Company shall notify the Trustee and the Paying Agent in writing of the amount of Deferred Interest proposed to be paid on the ICONs and the date of the proposed payment, and at the same time the Company shall deposit with the Paying Agent an amount of money equal to the aggregate amount proposed to be paid in respect of such Deferred Interest or shall make arrangements satisfactory to the Paying Agent for such deposit prior to the date of the proposed payment, such money when

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deposited to be held in trust for the benefit of the Persons entitled to such Deferred Interest as provided herein.  Thereupon, the Trustee shall fix a Special Record Date for the payment of such Deferred Interest which shall be not more than 15 days and not less than ten days prior to the date of the proposed payment and not less than ten days after the receipt by the Trustee of the notice of the proposed payment.  The Trustee shall promptly notify the Company and the Paying Agent of such Special Record Date and, in the name and at the expense of the Company, the Paying Agent shall cause notice of the proposed payment of such Deferred Interest and the Special Record Date therefor to be mailed, first-class, postage prepaid, to each Holder of ICONs at the address of such Holder as it appears in the Securities Register not less than ten days prior to such Special Record Date.  Notice of the proposed payment of the Deferred Interest and the Special Record Date therefor having been mailed as aforesaid, such Deferred Interest shall be paid to the persons in whose names the ICONs are registered on such Special Record Date.

ARTICLE III

MISCELLANEOUS

Section 3.1.  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 3.2. The Article headings herein are for convenience only and shall not effect the construction hereof.

Section 3.3.  All covenants and agreements in this Supplemental Indenture by the Company shall bind its successors and assigns, whether so expressed or not.

 Section 3.4.  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 3.5.  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 3.6.  THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.

 Section 3.7. 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:	/s/ Andrew Cecere
		Its:	Vice Chairman
Attest:
By	/s/ Laura Bednarski
Its	Assistant Secretary
		WILMINGTON TRUST COMPANY,
		as Trustee
		By:	/s/ Denise Geran
		Its:	Vice President
Attest:
By	/s/ Kristen L. Moore
Its	Senior Financial Services Officer
		U.S. BANK NATIONAL ASSOCIATION,
		as Securities Registrar and Paying Agent
		By:	/s/ Patrick Crowley
		Its:	Vice President

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Annex A
Form of ICONS

U.S. BANCORP

6.30% Income Capital Obligations NotesSM due February 15, 2067

No. •

$          

CUSIP No.   902973AR7

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 to Wilmington Trust Company, the Property Trustee of USB CAPITAL XII, or registered assigns, the principal sum of            dollars ($         ) on February 15, 2067.  The Company is authorized to direct payments to U.S. Bank National Association, in its capacity as paying agent under the Trust Agreement (as defined below), or any other paying agent appointed under the terms of the Trust Agreement.  The Company further promises to pay interest on said principal sum from February 1, 2007 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 February 15, May 15, August 15 and November 15 of each year, commencing May 15, 2007, at the rate of 6.30% 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 XII, 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

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

Holder on such Regular Record Date and may either be paid to the Person in whose name this 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 the Securities of this series not fewer than ten 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.

The Company shall have the right, at any time and from time to time prior to the Stated Maturity of this Security, to defer the payment of interest thereon for one or more Deferral Periods consisting of no more than 20 consecutive quarters without becoming subject to the obligations to issue Eligible Equity and pay Deferred Interest pursuant to Section 2.1(h) of the Sixth Supplemental Indenture. The Company shall also have the right, at any time and from time to time prior to the Stated Maturity of this Security, to defer payment of interest thereon for one or more Deferral Periods consisting of no more than 40 consecutive quarters without giving rise to an Event of Default.  The Company may elect to so defer payment of interest by delivering to the Trustee written notice of such election at least ten and not more than 60 Business Days prior to the applicable Interest Payment Date.  Notwithstanding the foregoing, no Deferral Period shall extend beyond the Stated Maturity of this Security.

During any Deferral Period, the Company shall not, and shall not permit any Subsidiary of the Company to, (1) 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), (2) make any payment of principal of or interest or premium, if any, on or repay, repurchase or redeem any debt securities of the Company (including the Company’s 6.35% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital VIII, the Company’s Junior Subordinated Notes underlying the 6.189% Fixed-to-Floating Rate Normal Income Trust Securities issued by USB Capital IX, the Company’s 6.50% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital X, the Company’s 6.60% Income Capital Obligation Notes underlying the trust preferred securities issued by USB Capital XI)that rank pari passu with or junior in interest to the ICONs other than pro rata payment of accrued and unpaid interest on Pari Passu Securities except and to the extent the terms of any Pari Passu Securities would prohibit the Company from making such pro rata payment; or (3) 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 pro rata payments of accrued and unpaid amounts on the guarantee and any other guarantees of the Company of debt securities of the Company’s subsidiaries that rank equally with guarantee except and to the extent that terms of any such debt securities would prohibit from making such pro rata payment, other than in the case of each of clauses (1), (2) and (3):  (A) any dividends or distributions in additional shares of the Company’s capital stock (which includes common and preferred stock), (B) any payments under the Guarantee with respect to the Capital Securities and common securities of the Trust, (C) any declaration or payment of a dividend in connection with the implementation of a stockholders’ rights plan, or any issuance of stock under any such plan in the future or the redemption or repurchase of any such rights pursuant thereto, and (D) any

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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 Fifth 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:
[SEAL]	Name:
	Title:
Attest:
Assistant Secretary

Dated:  February 1, 2007

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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, the Second Supplemental Indenture, dated as of December 29, 2005, the Third Supplemental Indenture, dated as of March 17, 2006, and the Fourth Supplemental Indenture, dated as of April 12, 2006, the Fifth Supplemental Indenture, dated as of August 30, 2006 and the Sixth Supplemental Indenture, dated as of February 1, 2007 (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 $576,000,000, issuable on one or more occasions.

All terms used in this Security that are defined in the Indenture or in the Amended and Restated Trust Agreement, dated as of  February 1, 2007 (the “Trust Agreement”), for USB CAPITAL XII, 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 February 15, 2012 and subject to the terms and conditions of Article XI of the Indenture and Section 2.1(k) of the Sixth 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.

With regard to each Interest Payment Date during any APM Period (defined in the Sixth Supplemental Indenture) subsequent to the APM Commencement Date (defined in the Sixth Supplemental Indenture), except for any Interest Payment Date for which the Company has delivered a timely MDE Certification (defined in the Sixth Supplemental Indenture), subject to certain exceptions, the Company shall issue and sell on or immediately following an APM Commencement Date, Eligible Equity (defined in the Sixth Supplemental Indenture) until the Company has raised an amount of Eligible Equity Proceeds (defined in the Sixth Supplemental Indenture) at least equal to the aggregate amount of Deferred Interest (including Additional Interest thereon) on the Securities of this series that will be accrued and unpaid as of the next Interest Payment Date, and the Company shall apply such Eligible Equity Proceeds to pay such Deferred Interest on or before the next Interest Payment Date.  Subject to certain exceptions, during any APM Period, the Company shall not to pay Deferred Interest (including Additional Interest thereon) from any source other than Eligible Equity Proceeds.  If, due to a Market

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Disruption Event, the Company is able to raise some but not all, Eligible Equity Proceeds in respect of an Interest Payment Date, the Company will apply any available Eligible Equity Proceeds to pay Deferred Interest on or before the such Interest Payment Date provided, however, that if the Company has outstanding securities in addition to the ICONs under which the Company is obligated to sell Eligible Equity and apply the net proceeds to the payment of Deferred Interest, then on any date and for any period the amount of net proceeds received by the Company from such sales and available for the payment of Deferred Interest shall be applied to the ICONs and those other securities on a pro rata basis, or on such other basis as the FRB may approve.

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 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 under the Sixth Supplemental Indenture, 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

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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 2.1(o) of the Sixth 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 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 a beneficial interest in, this Security agree to treat the Trust as a grantor trust and beneficial owners of interests in the Trust as owning an undivided beneficial interest in the Security and to treat the Security as indebtedness for all United States federal, state and local tax purposes.

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

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

WILMINGTON TRUST COMPANY,
as Trustee
By:
	Authorized Signatory

Dated:   February 1, 2007

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Annex B
Trust Agreement

B-1

Annex C
Guarantee Agreement

C-1

EX-4.4

Exhibit 4.4

AMENDED AND RESTATED TRUST AGREEMENT

By and Among

U.S. BANCORP,
as Sponsor

WILMINGTON TRUST COMPANY,
as Property Trustee

WILMINGTON TRUST COMPANY,
as Delaware Trustee

And

THE ADMINISTRATIVE TRUSTEES NAMED HEREIN

Dated as of February 1, 2007

USB CAPITAL XII

CROSS REFERENCE TABLE (1)

Section of Trust Indenture Act of 1939, as amended	Section of Agreement
310(a)	6.3
310(b)	6.3(c); 6.3(d)
310(c)	Inapplicable
311(a)	2.2(b)
311(b)	2.2(b)
311(c)	Inapplicable
312(a)	2.2(a)
312(b)	2.2(b)
312(c)	Inapplicable
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)	3.9(b); 3.10(a)
315(b)	2.7(a)
315(c)	3.9(a)
315(d)	3.9(b)
316(a)	2.6; 7.5(b); 7.6(c)
316(b)	Inapplicable
316(c)	Inapplicable
317(a)	3.16
317(b)	Inapplicable
318(a)	2.1(c)

(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.

ii

TABLE OF CONTENTS

		Page
ARTICLE 1 INTERPRETATION AND DEFINITIONS		2
SECTION 1.1.          Interpretation and Definitions		2
	Administrative Trustee	2
	Affiliate	2
	Authorized Officer	2
	Beneficial Owners	2
	Business Day	3
	Capital Security	3
	Capital Security Certificate	3
	Certificate	3
	Certificate of Trust	3
	Closing Date	3
	Code	3
	Commission	3
	Common Securities Holder	3
	Common Security	3
	Common Security Certificate	3
	Corporate Trust Office	3
	Covered Person	3
	Deferral Period	3
	Delaware Statutory Trust Act	4
	Delaware Trustee	4
	Depositary	4
	Depositary Participant	4
	Direct Action	4
	Distribution	4
	Exchange Act	4
	Federal Reserve	4
	Fiduciary Indemnified Person	4
	Fiscal Year	4
	Global Security	4
	Guarantee	4
	Holder	4
	ICON Issuer	4
	ICON Issuer Indemnified Person	4
	ICON Trustee	4
	ICONs	5
	Indemnified Person	5
	Indenture	5
	Indenture Event of Default	5
	Investment Company	5

iii

	Investment Company Act	5
	Investment Company Event	5
	Legal Action	5
	List of Holders	5
	Majority in Liquidation Amount	5
	Market Disruption Event	6
	New York Stock Exchange	6
	Officers’ Certificate	6
	Paying Agent	6
	Payment Amount	6
	Person	6
	Property Account	6
	Property Trustee	6
	Pro Rata	7
	Quorum	7
	Redemption/Distribution Notice	7
	Redemption Price	7
	Regulatory Capital Event	7
	Related Party	7
	Resigning Administrative Trustee	7
	Responsible Officer	7
	Securities	7
	Securities Act	7
	Special Event	7
	Sponsor	8
	Successor Delaware Trustee	8
	Successor Entity	8
	Successor Property Trustee	8
	Successor Security	8
	Super Majority	8
	Tax Event	8
	10% in Liquidation Amount	8
	Treasury Regulations	8
	Trust	8
	Trust Enforcement Event	8
	Trust Indenture Act	9
	Trustee\ or \Trustees	9
ARTICLE 2 TRUST INDENTURE ACT		9
SECTION 2.1.          Trust Indenture Act; Application		9
SECTION 2.2.          Lists of Holders of Securities		9
SECTION 2.3.          Reports by the Property Trustee		10
SECTION 2.4.          Periodic Reports to the Property Trustee		10
SECTION 2.5.          Evidence of Compliance with Conditions Precedent		10
SECTION 2.6.          Trust Enforcement Events; Waiver		10
SECTION 2.7.          Trust Enforcement Event; Notice		12

iv

ARTICLE 3 ORGANIZATION	12
SECTION 3.1.          Name and Organization	12
SECTION 3.2.          Office	12
SECTION 3.3.          Purpose	13
SECTION 3.4.          Authority	13
SECTION 3.5.          Title to Property of the Trust	14
SECTION 3.6.          Powers and Duties of the Administrative Trustees	14
SECTION 3.7.          Prohibition of Actions by the Trust and the Trustees	16
SECTION 3.8.          Powers and Duties of the Property Trustee	17
SECTION 3.9.          Certain Duties and Responsibilities of the Property Trustee	19
SECTION 3.10.        Certain Rights of Property Trustee	20
SECTION 3.11.        Delaware Trustee	23
SECTION 3.12.        Execution of Documents	23
SECTION 3.13.        Not Responsible for Recitals or Issuance of Securities	23
SECTION 3.14.        Duration of Trust	23
SECTION 3.15.        Mergers	24
SECTION 3.16.        Property Trustee May File Proofs of Claim	25
ARTICLE 4 SPONSOR	26
SECTION 4.1.          Responsibilities of the Sponsor	26
SECTION 4.2.          Indemnification and Fees and Expenses of the Trustees	27
SECTION 4.3.          Compensation of the Trustees	27
ARTICLE 5 TRUST COMMON SECURITIES HOLDER	27
SECTION 5.1.          ICON Issuer’s Receipt of Common Securities	27
SECTION 5.2.          Covenants of the Common Securities Holder	27
ARTICLE 6 TRUSTEES	28
SECTION 6.1.          Number of Trustees	28
SECTION 6.2.          Delaware Trustee; Eligibility	28
SECTION 6.3.          Property Trustee; Eligibility	29
SECTION 6.4.          Qualifications of Administrative Trustees and Delaware Trustee Generally	29
SECTION 6.5.          Initial Administrative Trustees	29
SECTION 6.6.          Appointment, Removal and Resignation of Trustees	30
SECTION 6.7.          Vacancies among Trustees	31
SECTION 6.8.          Effect of Vacancies	31
SECTION 6.9.          Meetings	31
SECTION 6.10.        Delegation of Power	32
SECTION 6.11.        Merger, Conversion, Consolidation or Succession to Business	32
ARTICLE 7 TERMS OF SECURITIES	33
SECTION 7.1.          General Provisions Regarding Securities	33

v

SECTION 7.2.          Distributions		35
SECTION 7.3.          Redemption of Securities		36
SECTION 7.4.          Redemption Procedures		36
SECTION 7.5.          Voting Rights of Capital Securities		38
SECTION 7.6.          Voting Rights of Common Securities		40
SECTION 7.7.          Paying Agent		41
SECTION 7.8.          Listing		42
SECTION 7.9.          Transfer of Securities		42
SECTION 7.10.        Mutilated, Destroyed, Lost or Stolen Certificates		43
SECTION 7.11.        Deemed Security Holders		43
SECTION 7.12.        Global Securities		43
ARTICLE 8 DISSOLUTION AND TERMINATION OF TRUST		46
SECTION 8.1.          Dissolution and Termination of Trust		46
SECTION 8.2.          Liquidation Distribution Upon Dissolution of the Trust		46
ARTICLE 9 LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE TRUSTEES		47
	OR OTHERS
SECTION 9.1.          Liability		47
SECTION 9.2.          Exculpation		48
SECTION 9.3.          Fiduciary Duty		48
SECTION 9.4.          Indemnification		49
SECTION 9.5.          Outside Businesses		51
ARTICLE 10 ACCOUNTING		52
SECTION 10.1.        Fiscal Year		52
SECTION 10.2.        Certain Accounting Matters		52
SECTION 10.3.        Banking		52
SECTION 10.4.        Withholding		53
ARTICLE 11 AMENDMENTS AND MEETINGS		53
SECTION 11.1.        Amendments		53
SECTION 11.2.        Meetings of the Holders of Securities; Action by Written Consent		55
ARTICLE 12 REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE		57
SECTION 12.1.        Representations and Warranties of the Property Trustee		57
SECTION 12.2.        Representations and Warranties of the Delaware Trustee		57
ARTICLE 13 MISCELLANEOUS		58
SECTION 13.1.        Notices		58
SECTION 13.2.        Governing Law		59

vi

SECTION 13.3.        Intention of the Parties	59
SECTION 13.4.        Headings	59
SECTION 13.5.        Successors and Assigns	59
SECTION 13.6.        Partial Enforceability	60
SECTION 13.7.        Counterparts	60
ARTICLE 14 RESIGNATION	60
SECTION 14.1.        Resignation of Resigning Administrative Trustee	60

EXHIBITS
Exhibit A	Form of Capital Security Certificate
Exhibit B	Form of Common Security Certificate

vii

AMENDED AND RESTATED TRUST AGREEMENT

This AMENDED AND RESTATED TRUST AGREEMENT (this “Trust Agreement”), dated as of February 1, 2007 is entered into by and among (i) U.S. BANCORP, a Delaware corporation (the “Sponsor”), (ii) WILMINGTON TRUST COMPANY, a Delaware banking corporation, as property trustee (in each such capacity, the “Property Trustee”), (iii) WILMINGTON TRUST COMPANY, as Delaware trustee (the “Delaware Trustee”), (iv) ANDREW CECERE, an individual, DARYL N. BIBLE, an individual, and LEE R. MITAU, an individual, each of whose address is c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402 (each an “Administrative Trustee” and collectively the “Administrative Trustees”) (the Property Trustee, the Delaware Trustee and the Administrative Trustees referred to collectively as the “Trustees”) and (v) the several Holders, as hereinafter defined.

RECITALS

WHEREAS, the Sponsor, Daryl N. Bible, as Administrative Trustee, Lee R. Mitau, as Administrative Trustee and David M. Moffett, as Administrative Trustee (the “Resigning Administrative Trustee”), and Delaware Trust Company, National Association (the “Original Trustee”), have heretofore established USB Capital XII (the “Trust”), a statutory trust under the Delaware Statutory Trust Act (as defined, together with other capitalized terms, herein) pursuant to a Trust Agreement dated as of April 27, 2005 (the “Original Trust Agreement”) and a Certificate of Trust (the “Original Certificate of Trust”), filed with the Secretary of State of the State of Delaware on April 27, 2005;

WHEREAS, pursuant to an Omnibus Appointment and Resignation Agreement, dated as of January 18, 2006, the Original Trustee resigned and Wilmington Trust Company was appointed by the Sponsor as successor trustee under the Original Trust Agreement, and a Restated Certificate of Trust (the “Restated Certificate of Trust” and, together with the Original Certificate of Trust, the “Certificate of Trust”) was filed with the Secretary of the State of Delaware on January 18, 2006;

WHEREAS, the Resigning Administrative Trustee desires to resign and the Sponsor desires to appoint Andrew Cecere as an Administrative Trustee, to succeed the Resigning Administrative Trustee, and such appointment is hereby accepted as of the date hereof;

WHEREAS, the sole purpose of the Trust shall be to issue and sell certain securities representing undivided beneficial interests in the assets of the Trust and invest the gross proceeds thereof in the ICONs issued by the ICON Issuer and to engage in only those activities necessary or incidental thereto; and

WHEREAS, the parties hereto, by this Trust Agreement, amend and restate each and every term and provision of the Original Trust Agreement;

NOW, THEREFORE, it being the intention of the parties hereto to continue the Trust as a statutory trust under the Delaware Statutory Trust Act and that this Trust Agreement constitute the governing instrument of such statutory trust, the Trustees hereby declare that all

assets contributed to the Trust be held in trust for the benefit of the Holders of the Securities representing undivided beneficial interests in the assets of the Trust issued hereunder, subject to the provisions of this Trust Agreement.

ARTICLE 1

INTERPRETATION AND DEFINITIONS

SECTION 1.1.                Interpretation and Definitions.

Unless the context otherwise requires:

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

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

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

(d)           all references in this Trust Agreement to Articles, Sections, Recitals and Exhibits are to Articles and Sections of, or Recitals and Exhibits to, this Trust Agreement unless otherwise specified;

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

(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:

“Administrative Trustee” means any Trustee other than the Property Trustee and the Delaware Trustee.

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

“Authorized Officer” of a Person means any Person that is authorized to bind such Person.

“Beneficial Owners” means, for Capital Securities represented by a Global Security, the Person who acquires an interest in the Capital Securities which is reflected on the records of the Depositary through the Depositary Participants.

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“Business Day” means any day other than (i) a Saturday or Sunday, (ii) a day on which banking institutions in the Borough of Manhattan, 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 ICON Trustee, or, with respect to the Securities of a series initially issued to a Trust, the principal office of the Property Trustee under the related Trust Agreement, is closed for business.

“Capital Security” has the meaning specified in Section 7.1.

“Capital Security Certificate” means a definitive certificate in fully registered form representing a Capital Security, substantially in the form of Exhibit A.

“Certificate” means a Common Security Certificate or a Capital Security Certificate.

“Certificate of Trust” has the meaning specified in the Recitals hereto.

“Closing Date” means the date on which the Capital Securities are issued and sold.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor legislation.  A reference to a specific section of the Code refers not only to such specific section but also to any corresponding provision of any federal tax statute enacted after the date of this Trust Agreement, as such specific section or corresponding provision is in effect on the date of application of the provisions of this Trust Agreement containing such reference.

“Commission” means the Securities and Exchange Commission or any successor thereto.

“Common Securities Holder” means U.S. Bancorp, or any successor thereto, in its capacity as purchaser and holder of all of the Common Securities issued by the Trust.

“Common Security” has the meaning specified in Section 7.1.

“Common Security Certificate” means a definitive certificate in fully registered form representing a Common Security, substantially in the form of Exhibit B hereto.

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

“Covered Person” means (a) any officer, director, shareholder, partner, member, representative, employee or agent of (i) the Trust or (ii) the Trust’s Affiliates; and (b) any Holder.

“Deferral Period”  has the meaning specified in the Indenture.

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“Delaware Statutory Trust Act” means Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time to time, or any successor legislation.

“Delaware Trustee” means the Trustee meeting the eligibility requirements set forth in Section 6.2.

“Depositary” means, with respect to Securities issuable in whole or in part in the form of one or more Global Securities, a clearing agency registered under the Exchange Act that is designated to act as Depositary for such Securities.

“Depositary Participant” means a member of, or participant in, the Depositary.

“Direct Action” has the meaning specified in Section 3.8(e).

“Distribution” means a distribution payable to Holders of Securities in accordance with Section 7.2.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor legislation.

“Federal Reserve” means the Board of Governors of the Federal Reserve System, or any successor thereto.

“Fiduciary Indemnified Person” has the meaning set forth in Section 9.4(b).

“Fiscal Year” has the meaning specified in Section 10.1.

“Global Security” means a fully registered, global Capital Security Certificate.

“Guarantee” means the Guarantee Agreement, dated the date hereof, of the Sponsor in respect of the Securities.

“Holder” means any holder of Securities, as registered on the books and records of the Trust.

“ICON Issuer” means U.S. Bancorp, or any successor thereto under the Indenture, in its capacity as issuer of the ICONs under the Indenture.

“ICON Issuer Indemnified Person” means (a) any Administrative Trustee; (b) any Affiliate of any Administrative Trustee; (c) any officers, directors, shareholders, members, partners, employees, representatives or agents of any Administrative Trustee or any Affiliate thereof; or (d) any officer, employee or agent of the Trust or its Affiliates.

“ICON Trustee” means Wilmington Trust Company, in its capacity as trustee under the Indenture until a successor is appointed thereunder, and thereafter means such successor trustee.

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“ICONs” means the series of 6.30% Income Capital Obligation Notes due 2067 to be issued by the ICON Issuer under the Indenture and held by the Property Trustee.

“Indemnified Person” means an ICON Issuer Indemnified Person or a Fiduciary Indemnified Person.

“Indenture” means the Junior Subordinated Indenture, dated as of April 28, 2005, between the ICON Issuer and Delaware Trust Company, National Association (the “Original Indenture Trustee”), as supplemented by the First Supplemental Indenture dated as of August 3, 2005, between the ICON Issuer and the Original Indenture Trustee, as further supplemented by the Second Supplemental Indenture dated as of December 29, 2005, between the ICON Issuer, the Original Indenture Trustee, and the ICON Trustee, as successor trustee, as further supplemented by the Third Supplemental Indenture dated as of March 17, 2006, between the ICON Issuer and the ICON Trustee, as further supplemented by the Fourth Supplemental Indenture dated as of April 12, 2006, between the ICON Issuer and the ICON Trustee, as further supplemented by the Fifth Supplemental Indenture dated as of August 30, 2006, between the ICON Issuer and the ICON Trustee, and as further supplemented by the Sixth Supplemental Indenture dated as of February 1, 2007, between the ICON Issuer and the ICON Trustee pursuant to which the ICONs are to be issued.

“Indenture Event of Default” has the meaning given to the term “Event of Default” in the Indenture.

“Investment Company” means an investment company as defined in the Investment Company Act and the regulations promulgated thereunder.

“Investment Company Act” means the Investment Company Act of 1940, as amended from time to time, or any successor legislation.

“Investment Company Event” means the receipt by the Sponsor 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 the occurrence of 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 (a “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, which Change in 1940 Act Law becomes effective on or after the Closing Date.

“Legal Action” has the meaning specified in Section 3.6(g).

“List of Holders” has the meaning specified in Section 2.2(a).

“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

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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.

“Market Disruption Event”  has the meaning specified in the Indenture.

“New York Stock Exchange” means the New York Stock Exchange, Inc. or any successor thereto.

“Officers’ Certificate” means, with respect to any Person, a certificate signed on behalf of such Person by two Authorized Officers of such Person.  Any Officers’ Certificate delivered with respect to compliance with a condition or covenant provided for in this Trust Agreement 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; provided, that the term “Officers’ Certificate”, when used with reference to Administrative Trustees who are natural persons shall mean a certificate signed by two or more of the Administrative Trustees which otherwise satisfies the foregoing requirements.

“Paying Agent” has the meaning specified in Section 7.7.

“Payment Amount” has the meaning specified in Section 7.2(c).

“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.

“Property Account” has the meaning specified in Section 3.8(c).

“Property Trustee” means the Trustee meeting the eligibility requirements set forth in Section 6.3.

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“Pro Rata” means pro rata to each Holder of Securities according to the aggregate liquidation amount of the Securities held by the relevant Holder in relation to the aggregate liquidation amount of all Securities outstanding.

“Quorum” means a majority of the Administrative Trustees or, if there are only two Administrative Trustees, both of them.

“Redemption/Distribution Notice” has the meaning specified in Section 7.4(a).

“Redemption Price” means the amount for which the Securities will be redeemed, which amount will equal (i) the redemption price paid by the ICON Issuer to repay or redeem, in whole or in part, the ICONs held by the Trust, which shall include accumulated and unpaid Distributions on such Securities through the date of their redemption or (ii) such lesser amount as will be received by the Trust in respect of the ICONs so repaid or redeemed.

“Regulatory Capital Event” means the reasonable determination by the Sponsor that, as a result of (a) 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 that is enacted or becomes effective after the initial issuance of the Capital Securities; or (b) any official or administrative pronouncement or action or judicial decision for interpreting or applying such laws or regulations, which is effective or announced on or after the initial issuance of the Capital Securities, there is more than an insubstantial risk of impairment of the Sponsor’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 Federal Reserve in effect and applicable to the Sponsor.

“Related Party” means, with respect to the Sponsor, any direct or wholly owned subsidiary of the Sponsor or any Person that owns, directly or indirectly, 100% of the outstanding voting securities of the Sponsor.

“Resigning Administrative Trustee”  has the meaning specified in the Recitals hereto.

“Responsible Officer” means, with respect to the Property Trustee, any officer with direct responsibility for the administration of this Trust Agreement 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” means the Common Securities and the Capital Securities.

“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor legislation.

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

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“Sponsor” means U.S. Bancorp, a Delaware corporation, or any successor entity in a merger, consolidation, amalgamation or replacement by or conveyance, transfer or lease of its properties substantially as an entirety, in its capacity as sponsor of the Trust.

“Successor Delaware Trustee” has the meaning specified in Section 6.6(b).

“Successor Entity” has the meaning specified in Section 3.15(b)(i).

“Successor Property Trustee” has the meaning specified in Section 6.6(b).

“Successor Security” has the meaning specified in Section 3.15(b)(i)b.

“Super Majority” has the meaning specified in Section 2.6(a)(ii).

“Tax Event” means the receipt by the Sponsor or the Trust of an opinion of tax counsel (which may be the Sponsor’s counsel or counsel of an Affiliate but not an employee and which must be reasonably acceptable to the Property Trustee) experienced in tax matters stating 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 affecting taxation that is enacted or becomes effective after the initial issuance of the Capital Securities; or interpretation or application of such laws or regulations by any court, governmental agency or regulatory authority that is announced after the initial issuance of the Capital Securities, there is more than an insubstantial risk that (i) 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 interest received or accrued on the ICONs, (ii) interest payable by the ICON Issuer 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 ICON Issuer for United States federal income tax purposes, or (iii) the Trust is, or will be within 90 days of the date of such opinion, subject to more than a minimal amount of other taxes, duties, assessments or other governmental charges.

“10% 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 10% or more 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.

“Treasury Regulations” means the income tax regulations, including temporary and proposed regulations, promulgated under the Code by the United States Treasury, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“Trust” has the meaning specified in the Recitals.

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

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

“Trustee” or “Trustees” means each Person who has signed this Trust Agreement as a trustee, so long as such Person shall continue as a trustee in accordance with the terms hereof, and all other Persons who may from time to time be duly appointed, qualified and serving as Trustees in accordance with the provisions hereof, and references herein to a Trustee or the Trustees shall refer to such Person or Persons solely in their capacity as trustees hereunder.

ARTICLE 2

TRUST INDENTURE ACT

SECTION 2.1.                Trust Indenture Act; Application.

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

(b)           The Property Trustee shall be the only Trustee which is a Trustee for the purposes of the Trust Indenture Act.

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

(d)           The application of the Trust Indenture Act to this Trust Agreement shall not affect the Trust’s classification as a grantor trust for United States federal income tax purposes.

SECTION 2.2.                Lists of Holders of Securities.

(a)           Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide the Property Trustee (i), except while the Capital Securities are represented by one or more Global Securities, at least five Business Days prior to the date for payment of Distributions, a list, in such form as the Property 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 Trust of a written request from the Property Trustee for a List of Holders, as of a date no more than 15 days before such List of Holders is given to the Property Trustee; provided that neither the Sponsor nor the Administrative Trustees on behalf of the Trust shall 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 Property Trustee by the Sponsor and the Administrative Trustees on behalf of the Trust.  The Property Trustee shall preserve, in as current a form as is reasonably practicable, all information contained in Lists of Holders given to it or which it receives in the capacity as Paying Agent (if acting in such capacity), provided that the Property Trustee may destroy any List of Holders previously given to it on receipt of a new List of Holders.

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(b)           The Property Trustee shall comply with its obligations under, and shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.

SECTION 2.3.                Reports by the Property Trustee.

Within 60 days after May 15 of each year (commencing with the year of the first anniversary of the issuance of the Capital Securities), the Property Trustee shall provide to the Holders of the Capital 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 Property Trustee shall also comply with the requirements of Section 313(d) of the Trust Indenture Act.

SECTION 2.4.                Periodic Reports to the Property Trustee.

Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such documents, reports and information as required by Section 314 of the Trust Indenture Act (if any) and the compliance certificate required by Section 314 of the Trust Indenture Act in the form, in the manner and at the times required by Section 314 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.

Each of the Sponsor and the Administrative Trustees on behalf of the Trust shall provide to the Property Trustee such evidence of compliance with any conditions precedent, if any, provided for in this Trust Agreement that relate to any of the matters set forth in 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.                Trust Enforcement Events; Waiver.

(a)           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 Capital Securities, waive any past Trust Enforcement Event in respect of the Capital Securities and its consequences, provided that, if the underlying Indenture Event of Default:

(i)            is not waivable under the Indenture, the Trust Enforcement Event under the Trust Agreement shall also not be waivable; or

(ii)           requires the consent or vote of the Holders of greater than a majority in principal amount of the ICONs (a “Super Majority”) to be waived under the Indenture, the related Trust Enforcement Event under the Trust Agreement may only be waived by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Capital Securities that the relevant Super Majority represents of the aggregate principal amount of the ICONs outstanding.

The foregoing provisions of this Section 2.6(a) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act

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is hereby expressly excluded from this Trust Agreement and the Securities, as permitted by the Trust Indenture Act.  Upon such waiver, any such default shall cease to exist, and any Trust Enforcement Event with respect to the Capital Securities arising therefrom shall be deemed to have been cured, for every purpose of this Trust Agreement and the Capital Securities, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Capital Securities or impair any right consequent thereon.  Any waiver by the Holders of the Capital Securities of a Trust Enforcement Event with respect to the Capital Securities shall also be deemed to constitute a waiver by the Holders of the Common Securities of any such Trust Enforcement Event with respect to the Common Securities for all purposes of this Trust Agreement without any further act, vote, or consent of the Holders of the Common Securities.

(b)           The Holders of a Majority in Liquidation Amount of the Common Securities may, by vote or written consent, on behalf of the Holders of all of the Common Securities, waive any past Trust Enforcement Event in respect of the Common Securities and its consequences, provided that, if the underlying Indenture Event of Default:

(i)            is not waivable under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under the Trust Agreement as provided below in this Section 2.6(b), the Trust Enforcement Event under the Trust Agreement shall also not be waivable; or

(ii)           requires the consent or vote of a Super Majority to be waived under the Indenture, except where the Holders of the Common Securities are deemed to have waived such Trust Enforcement Event under the Trust Agreement as provided below in this Section 2.6(b), the Trust Enforcement Event under the Trust Agreement may only be waived by the vote or written consent of the Holders of at least the proportion in liquidation amount of the Common Securities that the relevant Super Majority represents of the aggregate principal amount of the ICONs outstanding;

provided further, each Holder of Common Securities will be deemed to have waived any Trust Enforcement Event and all Trust Enforcement Events with respect to the Common Securities and the consequences thereof until all Trust Enforcement Events with respect to the Capital Securities have been cured, waived or otherwise eliminated, and until such Trust Enforcement Events with respect to the Capital Securities have been so cured, waived or otherwise eliminated, the Property Trustee will be deemed to be acting solely on behalf of the Holders of the Capital Securities and only the Holders of the Capital Securities will have the right to direct the Property Trustee in accordance with the terms of the Securities.  The foregoing provisions of this Section 2.6(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from this Trust Agreement and the Securities, as permitted by the Trust Indenture Act.  Subject to the foregoing provisions of this Section 2.6(b), upon such cure, waiver or other elimination, any such default shall cease to exist and any Trust Enforcement Event with respect to the Common Securities arising therefrom shall be deemed to have been cured for every purpose of this Trust Agreement, but no such waiver shall extend to any subsequent or other Trust Enforcement Event with respect to the Common Securities or impair any right consequent thereon.

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(c)           A waiver of an Indenture Event of Default by the Property Trustee at the direction of the Holders of the Capital Securities constitutes a waiver of the corresponding Trust Enforcement Event with respect to the Capital Securities under this Trust Agreement.  The foregoing provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this Trust Agreement and the Securities, as permitted by the Trust Indenture Act.

SECTION 2.7.                Trust Enforcement Event; Notice.

(a)           The Property Trustee shall, within 90 days after the occurrence of a Trust Enforcement Event actually known to a Responsible Officer of the Property Trustee, transmit by mail, first class postage prepaid, to the Holders of the Securities, notices of all such defaults with respect to the Securities, unless such defaults have been cured before the giving of such notice (the term “defaults” for the purposes of this Section 2.7(a) being hereby defined to be an Indenture Event of Default, not including any periods of grace provided for therein and irrespective of the giving of any notice provided therein); provided that, except for a default in the payment of principal of (or premium, if any) or interest on any of the ICONs, the Property Trustee shall be protected fully in withholding such notice if and so long as a Responsible Officer of the Property Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities.

(b)           The Property Trustee shall not be deemed to have knowledge of any default except:

(i)            a default under Sections 5.1(1) and 5.1(2) of the Indenture; or

(ii)           any default as to which the Property Trustee shall have received written notice or of which a Responsible Officer of the Property Trustee charged with the administration of this Trust Agreement shall have actual knowledge.

ARTICLE 3

ORGANIZATION

SECTION 3.1.                Name and Organization.

The Trust hereby continued is named “USB Capital XII” as such name may be modified from time to time by the Administrative Trustees following written notice to the Holders of Securities, the Property Trustee and the Delaware Trustee.  The Trust’s activities may be conducted under the name of the Trust or any other name deemed advisable by the Administrative Trustees.

SECTION 3.2.                Office.

The address of the principal office of the Trust is c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota 55402.  On ten Business Days’ written notice to the Holders of

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Securities, each of the Property Trustee, the Delaware Trustee and the Administrative Trustees may designate another principal office.

SECTION 3.3.                Purpose.

The exclusive purposes and functions of the Trust are (a) to issue and sell Securities and invest the gross proceeds thereof in the ICONs, and (b) except as otherwise limited herein, to engage in only those other activities necessary or incidental thereto.  The Trust shall not borrow money, issue debt or reinvest proceeds derived from investments, pledge any of its assets or otherwise undertake (or permit to be undertaken) any activity that would cause the Trust to be classified as other than a grantor trust for United States federal income tax purposes.

By the acceptance of this Trust, the Trustees, the Sponsor, the Holders of the Capital Securities and Common Securities and the Capital Securities Beneficial Owners will agree to treat the Trust as a grantor trust for United States federal income tax purposes and not to take any position which is contrary to such classification.

SECTION 3.4.                Authority.

Subject to the limitations provided in this Trust Agreement and to the specific duties of the Property Trustee, the Administrative Trustees shall have exclusive authority to carry out the purposes of the Trust.  An action taken by the Administrative Trustees in accordance with their powers shall constitute the act of and serve to bind the Trust and an action taken by the Property Trustee on behalf of the Trust in accordance with its powers shall constitute the act of and serve to bind the Trust.  In dealing with the Trustees acting on behalf of the Trust, no Person shall be required to inquire into the authority of the Trustees to bind the Trust.  Persons dealing with the Trust are entitled to rely conclusively on the power and authority of the Trustees as set forth in this Trust Agreement.

(a)           Except as expressly set forth in this Trust Agreement and except if a meeting of the Administrative Trustees is called with respect to any matter over which the Administrative Trustees have power to act, any power of the Administrative Trustees may be exercised by, or with the consent of, any one such Administrative Trustee.

(b)           Except as otherwise required by the Delaware Statutory Trust Act or applicable law, any Administrative Trustee is authorized to execute on behalf of the Trust any documents which the Administrative Trustees have the power and authority to cause the Trust to execute pursuant to Section 3.6(b).

(c)           An Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any other natural person over the age of 21 his or her power for the purposes of signing any documents which the Administrative Trustees have power and authority to cause the Trust to execute pursuant to Section 3.6; provided that such person is a United States Person as defined in Section 7701(a)(30) of the Code.

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SECTION 3.5.                Title to Property of the Trust.

Except as provided in Section 3.8 with respect to the ICONs and the Property Account or as otherwise provided in this Trust Agreement, legal title to all assets of the Trust shall be vested in the Trust.  The Holders shall not have legal title to any part of the assets of the Trust, but shall have an undivided beneficial ownership interest in the assets of the Trust.

SECTION 3.6.                Powers and Duties of the Administrative Trustees.

The Administrative Trustees shall have the exclusive power, duty and authority, and are hereby authorized and directed, to cause the Trust to engage in the following activities:

(a)           to establish the terms and form of the Capital Securities and the Common Securities in the manner specified in Section 7.1 and issue and sell the Capital Securities and the Common Securities in accordance with this Trust Agreement; provided, however, that the Trust may issue no more than one series of Capital Securities and no more than one series of Common Securities, and, provided further, that there shall be no interests in the Trust other than the Securities, and the issuance of Securities shall be limited to a simultaneous issuance of both Capital Securities and Common Securities on the Closing Date;

(b)           in connection with the issuance of the Capital Securities, at the direction of the Sponsor, to execute and file any documents prepared by the Sponsor, or take any acts as determined by the Sponsor to be necessary, in order to qualify or register all or part of the Capital Securities in any State in which the Sponsor has determined to qualify or register such Capital Securities for sale;

(c)           to purchase the ICONs with the gross proceeds from the issuance and sale of the Capital Securities and in exchange for the Common Securities; provided, however, that the Administrative Trustees shall cause legal title to the ICONs to be held of record in the name of the Property Trustee for the benefit of the Holders of the Capital Securities and the Holders of the Common Securities;

(d)           to give the Sponsor and the Property Trustee prompt written notice of the occurrence of a Special Event; provided that the Administrative Trustees shall consult with the Sponsor and the Property Trustee before taking or refraining from taking any action in relation to any such Special Event;

(e)           to establish a record date with respect to all actions to be taken hereunder that require a record date be established, including and with respect to, for the purposes of Section 316(c) of the Trust Indenture Act, Distributions, voting rights, redemptions and exchanges, and to issue relevant notices to the Holders of Capital Securities and Holders of Common Securities as to such actions and applicable record dates;

(f)            to take all actions and perform such duties as may be required of the Administrative Trustees pursuant to the terms of this Trust Agreement and the Securities;

(g)           to bring or defend, pay, collect, compromise, arbitrate, resort to legal action or otherwise adjust claims or demands of or against the Trust (“Legal Action”), unless, pursuant to Section 3.8(e), the Property Trustee has the exclusive power to bring such Legal Action;

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(h)           to employ or otherwise engage employees and agents (who may be designated as officers with titles) and managers, contractors, advisors and consultants to conduct only those services that the Administrative Trustees have authority to conduct directly, and to pay reasonable compensation for such services, provided that such person is a United States Person as defined in Section 7701(a)(30) of the Code;

(i)            to cause the Trust to comply with the Trust’s obligations under the Trust Indenture Act;

(j)            to give the certificate required by Section 314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate may be executed by any Administrative Trustee;

(k)           to incur expenses that are necessary or incidental to carry out any of the purposes of the Trust;

(l)            to act as, or appoint another Person to act as, registrar and transfer agent for the Securities;

(m)          to give prompt written notice to the Holders of the Securities of any notice received from the ICON Issuer of its election to defer payments of interest on the ICONs as authorized by the Indenture;

(n)           to give prompt written notice to the Holders of the Securities of any certification of a Market Disruption Event received from the ICON Issuer under the ICONs as authorized by the Indenture;

(o)           to take all action that may be necessary or appropriate for the preservation and the continuation of the Trust’s valid existence, rights, franchises and privileges as a statutory trust under the laws of the State of Delaware and of each other jurisdiction in which such existence is necessary to protect the limited liability of the Holders of the Capital Securities and the Holders of the Common Securities or to enable the Trust to effect the purposes for which the Trust was created;

(p)           to take any action, not inconsistent with applicable law, that the Administrative Trustees determine in their discretion to be necessary or desirable in carrying out the purposes and functions of the Trust as set out in Section 3.3 or the activities of the Trust as set out in this Section 3.6, including, but not limited to:

(i)            causing the Trust not to be deemed to be an Investment Company required to be registered under the Investment Company Act;

(ii)           causing the Trust to be classified as a grantor trust for United States federal income tax purposes; and

(iii)          cooperating with the ICON Issuer to ensure that the ICONs will be treated as indebtedness of the ICON Issuer for United States federal income tax purposes.

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(q)           to take all action necessary to cause all applicable tax returns and tax information reports that are required to be filed with respect to the Trust to be duly prepared and filed by the Administrative Trustees, on behalf of the Trust; and

(r)            to execute and deliver all documents or instruments, perform all duties and powers, and do all things for and on behalf of the Trust in all matters necessary or incidental to the foregoing.

The Administrative Trustees shall exercise the powers set forth in this Section 3.6 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Administrative Trustees shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Trust set forth in Section 3.3.

Subject to this Section 3.6, the Administrative Trustees shall have none of the powers or the authority of the Property Trustee set forth in Section 3.8.

Any expenses incurred by the Administrative Trustees pursuant to this Section 3.6 shall be reimbursed by the ICON Issuer.

SECTION 3.7.                Prohibition of Actions by the Trust and the Trustees.

(a)           The Trust shall not, and none of the Trustees (including the Property Trustee) shall cause the Trust to, engage in any activity other than as required or authorized by this Trust Agreement.  In particular, the Trust shall not and none of the Trustees (including the Property Trustee) shall cause the Trust to:

(i)            invest any proceeds received by the Trust from holding the ICONs, but shall distribute all such proceeds to Holders of Securities pursuant to the terms of this Trust Agreement and of the Securities;

(ii)           acquire any assets other than as expressly provided herein;

(iii)          possess Trust property for other than a Trust purpose;

(iv)          make any loans (other than those represented by the ICONs) or incur any indebtedness;

(v)           possess any power or otherwise act in such a way as to vary the Trust assets;

(vi)          possess any power or otherwise act in such a way as to vary the terms of the Securities in any way whatsoever (except to the extent expressly authorized in this Trust Agreement or by the terms of the Securities);

(vii)         issue any securities or other evidences of beneficial ownership of, or beneficial interest in, the Trust other than the Securities;

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(viii)        other than as provided in this Trust Agreement or by the terms of the Securities, (A) direct the time, method and place of exercising any trust or power conferred upon the ICON Trustee with respect to the ICONs, (B) waive any past default that is waivable under the Indenture, (C) exercise any right to rescind or annul any declaration that the principal of all the ICONs shall be due and payable, or (D) consent to any amendment, modification or termination of the Indenture or the ICONs where such consent shall be required, unless the Trust shall have received an opinion of counsel to the effect that such modification will not cause more than an insubstantial risk that the Trust will be deemed an Investment Company required to be registered under the Investment Company Act, or the Trust will be classified as other than a grantor trust for United States federal income tax purposes;

(ix)           take any action inconsistent with the status of the Trust as a grantor trust for United States federal income tax purposes; or

(x)            revoke any action previously authorized or approved by vote of the Holders of the Capital Securities.

SECTION 3.8.                Powers and Duties of the Property Trustee.

(a)           The legal title to the ICONs shall be owned by and held of record in the name of the Property Trustee for the benefit of the Trust and the Holders of the Securities.  The right, title and interest of the Property Trustee to the ICONs shall vest automatically in each Person who may hereafter be appointed as Property Trustee in accordance with Section 6.6.  Such vesting and cessation of title shall be effective whether or not conveyancing documents with regard to the ICONs have been executed and delivered.

(b)           The Property Trustee shall not transfer its right, title and interest in the ICONs to the Administrative Trustees or to the Delaware Trustee (if the Property Trustee does not also act as Delaware Trustee).

(c)           The Property Trustee shall:

(i)            establish and maintain a segregated non-interest bearing trust account (the “Property Account”) in the name of and under the exclusive control of the Property Trustee on behalf of the Holders of the Securities and, upon the receipt of payments of funds made in respect of the ICONs held by the Property Trustee, deposit such funds into the Property Account and make payments to the Holders of the Capital Securities and Holders of the Common Securities from the Property Account in accordance with Section 7.2.  Funds in the Property Account shall be held uninvested until disbursed in accordance with this Trust Agreement.  The Property Account shall be an account that is maintained with a banking institution the rating on whose long-term unsecured indebtedness is at least equal to the rating assigned to the Capital Securities by a “nationally recognized statistical rating organization”, within the meaning of Rule 436(g)(2) under the Securities Act;

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(ii)           engage in such ministerial activities as shall be necessary or appropriate to effect the redemption of the Capital Securities and the Common Securities to the extent the ICONs are redeemed or mature; and

(iii)          upon written notice of distribution issued by the Administrative Trustees in accordance with the terms of the Securities, engage in such ministerial activities as so directed and as shall be necessary or appropriate to effect the distribution of the ICONs to Holders of Securities upon the occurrence of a Special Event.

(d)           The Property Trustee shall take all actions and perform such duties as may be specifically required of the Property Trustee pursuant to the terms of this Trust Agreement and the Securities.

(e)           The Property Trustee shall take any Legal Action which arises out of or in connection with a Trust Enforcement Event of which a Responsible Officer of the Property Trustee has actual knowledge or the Property Trustee’s duties and obligations under this Trust Agreement or the Trust Indenture Act.  Notwithstanding the foregoing, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the ICON Issuer to pay interest in full on the ICONs for a period of 30 days after a Deferral Period has continued for 40 consecutive quarters, then a Holder of Capital Securities may directly institute a proceeding against the ICON Issuer for enforcement of payment to such Holder of the principal of or interest on ICONs having a principal amount equal to the aggregate liquidation amount of the Capital Securities of such Holder (a “Direct Action”) on or after the respective due date specified in the ICONs.  Notwithstanding anything to the contrary in this Trust Agreement or the Indenture, the ICON Issuer shall have the right to set-off any payment it is otherwise required to make under the Indenture in respect of any Capital Security to the extent the ICON Issuer has heretofore made, or is currently on the date of such payment making, a payment under the Guarantee relating to such Capital Security or under Section 5.8 of the Indenture.

(f)            The Property Trustee shall continue to serve as a Trustee until either:

(i)            the Trust has been completely liquidated and the proceeds of the liquidation distributed to the Holders of Securities pursuant to the terms of the Securities; or

(ii)           a Successor Property Trustee has been appointed and has accepted that appointment in accordance with Section 6.6.

(g)           The Property Trustee shall have the legal power to exercise all of the rights, powers and privileges of a holder of ICONs under the Indenture and, if a Trust Enforcement Event actually known to a Responsible Officer of the Property Trustee occurs and is continuing, the Property Trustee shall, for the benefit of Holders of the Securities, enforce its rights as holder of the ICONs subject to the rights of the Holders pursuant to the terms of such Securities.

(h)           [Reserved]

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(i)            Subject to this Section 3.8, the Property Trustee shall have none of the duties, liabilities, powers or the authority of the Administrative Trustees set forth in Section 3.6.

The Property Trustee shall exercise the powers set forth in this Section 3.8 in a manner that is consistent with the purposes and functions of the Trust set out in Section 3.3, and the Property Trustee shall have no power to, and shall not, take any action that is inconsistent with the purposes and functions of the Trust set out in Section 3.3.

SECTION 3.9.                Certain Duties and Responsibilities of the Property Trustee.

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

(b)           No provision of this Trust Agreement shall be construed to relieve the Property 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 a Trust Enforcement Event and after the curing or waiving of all such Trust Enforcement Events that may have occurred:

a.the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Trust Agreement and the Property Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Trust Agreement, and no implied covenants or obligations shall be read into this Trust Agreement against the Property Trustee; and

b.in the absence of bad faith on the part of the Property Trustee, the Property 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 Property Trustee and conforming to the requirements of this Trust Agreement; but in the case of any such certificates or opinions that by any provision hereof are specifically required to be furnished to the Property Trustee, the Property Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Trust Agreement;

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

(iii)          the Property Trustee shall not be liable with respect to any action taken or omitted to be taken by it without negligence, 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 Property Trustee, or exercising any trust or power conferred upon the Property Trustee under this Trust Agreement;

(iv)          no provision of this Trust Agreement shall require the Property 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 it 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 Trust Agreement or indemnity reasonably satisfactory to the Property Trustee against such risk or liability is not reasonably assured to it;

(v)           the Property Trustee’s sole duty with respect to the custody, safe-keeping and physical preservation of the ICONs and the Property Account shall be to deal with such property in a similar manner as the Property Trustee deals with similar property for its own account, subject to the protections and limitations on liability afforded to the Property Trustee under this Trust Agreement and the Trust Indenture Act;

(vi)          the Property Trustee shall have no duty or liability for or with respect to the value, genuineness, existence or sufficiency of the ICONs or the payment of any taxes or assessments levied thereon or in connection therewith;

(vii)         the Property Trustee shall not be liable for any interest on any money received by it except as it may otherwise agree with the Sponsor.  Money held by the Property Trustee need not be segregated from other funds held by it except in relation to the Property Account maintained by the Property Trustee pursuant to Section 3.8(c)(i) and except to the extent otherwise required by law; and

(viii)        the Property Trustee shall not be responsible for monitoring the compliance by the Administrative Trustees or the Sponsor with their respective duties under this Trust Agreement, nor shall the Property Trustee be liable for any default or misconduct of the Administrative Trustees or the Sponsor.

SECTION 3.10.              Certain Rights of Property Trustee.

(a)           Subject to the provisions of Section 3.9:

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(i)            the Property 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, ICON, 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 Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate;

(iii)          whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property 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 Sponsor or the Administrative Trustees;

(iv)          the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any rerecording, refiling or registration thereof;

(v)           the Property Trustee may consult with counsel of its choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise 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 Sponsor or any of its Affiliates, and may include any of its employees.  The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction;

(vi)          the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Holder, unless such Holder shall have provided to the Property Trustee security and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ fees and expenses and the expenses of the Property 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 Property Trustee; provided that, nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement;

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(vii)         the Property 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, ICON, note, other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit;

(viii)        the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, custodians, nominees or attorneys and the Property 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, provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code;

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

(x)            whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Securities, which instructions may only be given by the Holders of the same proportion in liquidation amount of the Securities as would be entitled to direct the Property Trustee under the terms of the Securities in respect of such remedy, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii)  shall be protected in conclusively relying on or acting in or accordance with such instructions;

(xi)           except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;

(xii)          the Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence or willful misconduct, in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Trust Agreement;

(xiii)         without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a bankruptcy, such expenses (including the fees and expenses of its counsel) and the compensation for such services are

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intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and

(xiv)        the Property Trustee shall not be charged with knowledge of a Trust Enforcement Event unless a Responsible Officer of the Property Trustee obtains actual knowledge of such event or the Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Capital Securities;

(b)           No provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property 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 Property Trustee shall be unqualified or incompetent 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 Property Trustee shall be construed to be a duty.

SECTION 3.11.              Delaware Trustee.

Notwithstanding any other provision of this Trust Agreement other than Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers, nor shall the Delaware Trustee have any of the duties and responsibilities of the Administrative Trustees or the Property Trustee described in this Trust Agreement.  Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for the sole and limited purpose of fulfilling the requirements of Section 3807(a) of the Delaware Statutory Trust Act.  In the event the Delaware Trustee shall at any time be required to take any action or perform any duty hereunder with respect to the Trust, the Delaware Trustee shall be entitled to all of the same rights as the Property Trustee listed in Section 3.9(b) and Section 3.10.

SECTION 3.12.              Execution of Documents.

Except as otherwise required by the Delaware Statutory Trust Act or applicable law, any Administrative Trustee is authorized to execute on behalf of the Trust any documents that the Administrative Trustees have the power and authority to execute pursuant to Section 3.6.

SECTION 3.13.              Not Responsible for Recitals or Issuance of Securities.

The recitals contained in this Trust Agreement and the Securities shall be taken as the statements of the Sponsor, and the Trustees do not assume any responsibility for their correctness.  The Trustees make no representations as to the value or condition of the property of the Trust or any part thereof.  The Trustees make no representations as to the validity or sufficiency of this Trust Agreement, the Securities, the ICONs or the Indenture.

SECTION 3.14.              Duration of Trust.

The Trust shall exist until dissolved and terminated pursuant to the provisions of Article 8 hereof.

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SECTION 3.15.              Mergers.

(a)           The Trust may not consolidate, amalgamate, merge with or into, or be replaced by, or convey, transfer or lease its properties and assets substantially as an entirety to any Person, except as described in Section 3.15(b) and (c) or Section 8.2.

(b)           The Trust may, at the request of the Sponsor and with the consent of the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees and without the consent of the Holders of the Securities, the Delaware Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties substantially as an entirety to a trust organized as such under the laws of any State; provided, that:

(i)            if the Trust is not the successor, such successor entity (the “Successor Entity”) either:

a.expressly assumes all of the obligations of the Trust with respect to the Securities; or

b.substitutes for the Capital Securities other securities having substantially the same terms as the Capital Securities (the “Successor Securities”) so long as the Successor Securities rank the same as the Capital Securities rank in priority with respect to Distributions and payments upon liquidation, redemption and otherwise;

(ii)           the ICON Issuer expressly appoints a trustee of such Successor Entity that possesses the same powers and duties as the Property Trustee as the holder of the ICONs;

(iii)          the Capital Securities or any Successor Securities are listed, or any Successor Securities will be listed upon notification of issuance, on any national securities exchange or with any other or organization on which the Capital Securities are then listed or quoted;

(iv)          such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not cause the Capital Securities (including any Successor Securities) to be downgraded by any nationally recognized statistical rating organization;

(v)           such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Capital Securities (including any Successor Securities) in any material respect;

(vi)          such Successor Entity has a purpose substantially identical to that of the Trust;

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(vii)         prior to such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease the Sponsor has received an opinion of independent counsel to the Trust experienced in such matters to the effect that:

a.such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease does not adversely affect the rights, preferences and privileges of the Holders of the Capital Securities (including any Successor Securities) in any material respect;

b.following such merger, consolidation, amalgamation, replacement, conveyance, transfer or lease neither the Trust nor the Successor Entity will be required to register as an Investment Company; and

c.following such merger, consolidation, amalgamation or replacement, the Trust (or the Successor Entity) will continue to be classified as a grantor trust for United States federal income tax purposes;

(viii)        the Sponsor or any permitted successor or assignee owns all of the common securities and guarantees the obligations of such Successor Entity under the Successor Securities at least to the extent provided by the Securities Guarantee and such Successor Entity expressly assumes all of the obligations of the Trust with respect to the Trustees.

(c)           Notwithstanding Section 3.15(b), the Trust shall not, except with the consent of Holders of 100% in aggregate liquidation amount of the Securities, consolidate, amalgamate, merge with or into, or be replaced by or convey, transfer or lease its properties and assets substantially as an entirety to, any other entity or permit any other entity to consolidate, amalgamate, merge with or into, or replace it, if such consolidation, amalgamation, merger, replacement, conveyance, transfer or lease would cause the Trust or Successor Entity to be classified as other than a grantor trust for United States federal income tax purposes and each Holder of the Securities not to be treated as owning an undivided interest in the ICONs.

SECTION 3.16.              Property Trustee May File Proofs of Claim.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other similar judicial proceeding relative to the Trust or any other obligor upon the Securities or the property of the Trust or of such other obligor or their creditors, the Property Trustee (irrespective of whether any Distributions on the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Property Trustee shall have made any demand on the Trust for the payment of any past due Distributions) shall be entitled and empowered, to the fullest extent permitted by law, by intervention in such proceeding or otherwise:

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(a)           to file and prove a claim for the whole amount of any Distributions owing and unpaid in respect of the Securities (or, if the Securities are original issue discount Securities, such portion of the liquidation amount as may be specified in the terms of such Securities) and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Property Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its and counsel) and of the Holders allowed in such judicial proceeding, and

(b)           to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Property Trustee and, in the event the Property Trustee shall consent to the making of such payments directly to the Holders, to pay to the Property Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Property Trustee, its agents and counsel, and any other amounts due the Property Trustee.

Nothing herein contained shall be deemed to authorize the Property Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement adjustment or compensation affecting the Securities or the rights of any Holder thereof or to authorize the Property Trustee to vote in respect of the claim of any Holder in any such proceeding.

ARTICLE 4

SPONSOR

SECTION 4.1.             Responsibilities of the Sponsor.

In connection with the issue of the Capital Securities, the Sponsor shall have the exclusive right and responsibility to engage in the following activities:

(a)           to prepare for filing by the Trust with the Commission under the Securities Act or the Exchange Act, and execute on behalf of the Trust, one or more registration statements on the applicable forms, including any amendments thereto, pertaining to the Capital Securities, the Guarantee and the ICONs;

(b)           to determine the States in which to take appropriate action to qualify or register for sale all or part of the Capital Securities and to do any and all such acts, other than actions which must be taken by the Trust, and advise the Trust of actions it must take, and prepare for execution and filing any documents to be executed and filed by the Trust, as the Sponsor deems necessary or advisable in order to comply with the applicable laws of any such States; and

(c)           to negotiate the terms of, and execute, an underwriting agreement and other related agreements providing for the sale of the Capital Securities.

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SECTION 4.2.                Indemnification and Fees and Expenses of the Trustees.

The Sponsor, in its capacity as ICON Issuer, agrees to indemnify the Property Trustee and the Delaware Trustee for, and to hold each of them harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Property Trustee or the Delaware Trustee, as the case may be, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending either of them against any claim or liability in connection with the exercise or performance of any of their respective powers or duties hereunder; the provisions of this Section 4.2 shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this Trust Agreement.

SECTION 4.3.                Compensation of the Trustees.

The Sponsor agrees to pay the Property Trustee and the Delaware Trustee from time to time such compensation for all services rendered by the Property Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in writing by the Sponsor and the Property Trustee or the Delaware Trustee, as the case may be, and, except as otherwise expressly provided herein, to reimburse the Property Trustee and the Delaware Trustee upon its or their request for all reasonable expenses, disbursements and advances incurred or made by the Property Trustee or the Delaware Trustee, as the case may be, in accordance with the provisions of this Trust Agreement, except any such expense, disbursement or advance as may be attributable to its or their negligence or bad faith.

ARTICLE 5

TRUST COMMON SECURITIES HOLDER

SECTION 5.1.                ICON Issuer’s Receipt of Common Securities.

On the Closing Date, the ICON Issuer will receive all of the Common Securities issued by the Trust on the same date in exchange for ICONs issued to the Trust by the ICON Issuer.  The Common Securities will be issued in a total liquidation amount of $1,000,000.

The aggregate stated liquidation amount of Common Securities outstanding at any time shall not be less than $1,000,000.

SECTION 5.2.                Covenants of the Common Securities Holder.

For so long as the Capital Securities remain outstanding, the Common Securities Holder will covenant (i) to maintain directly 100% ownership of the Common Securities, (ii) to cause the Trust to remain a statutory trust and not to voluntarily dissolve, wind up, liquidate or be terminated, except as permitted by this Trust Agreement, (iii) to use its commercially reasonable efforts to ensure that the Trust will not be an investment company for purposes of the Investment Company Act, and (iv) to take no action which would be reasonably likely to cause the Trust to be classified as other than a grantor trust for United States federal income tax purposes.

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ARTICLE 6

TRUSTEES

SECTION 6.1.                Number of Trustees.

The number of Trustees initially shall be five, and:

(a)           at any time before the issuance of any Securities, the Sponsor may, by written instrument, increase or decrease the number of Trustees;

(b)           after the issuance of any Securities, the number of Trustees may be increased or decreased by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities or by written consent in lieu of such meeting; provided that the number of Trustees shall be at least three; and provided further that (1) the Delaware Trustee, in the case of a natural person, shall be a person who is a resident of the State of Delaware or that, if not a natural person, is an entity which has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law; (2) at least one Administrative Trustee is an employee or officer of, or is affiliated with, the Sponsor; and (3) one Trustee shall be the Property Trustee for so long as this Trust Agreement is required to qualify as an indenture under the Trust Indenture Act, and such Trustee may also serve as Delaware Trustee if it meets the applicable requirements;

(c)           at all times, the Property Trustee must be (i) a bank as defined in Section 581 of the Code or (ii) a U.S. government-owned agency or U.S. government sponsored enterprise; and

(d)           at all times, each Trustee must be a United States Person as defined in Section 7701(a)(30) of the Code.

SECTION 6.2.                Delaware Trustee; Eligibility.

If required by the Delaware Statutory Trust Act, one Trustee (which may be the Property Trustee) (the “Delaware Trustee”) shall be:

(a)           a natural person who is a resident of the State of Delaware; or

(b)           if not a natural person, an entity which has its principal place of business in the State of Delaware, and otherwise meets the requirements of applicable law,

provided that, if the Property Trustee has its principal place of business in the State of Delaware and otherwise meets the requirements of applicable law, then the Property Trustee shall also be the Delaware Trustee and Section 3.11 shall have no application.

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SECTION 6.3.                Property Trustee; Eligibility.

(a)           There shall at all times be one Trustee (which may be the Delaware Trustee) which shall act as Property Trustee which shall:

(i)            not be an Affiliate of the Sponsor; 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 Commission to act as an institutional trustee under the Trust Indenture Act, authorized under such laws to exercise corporate trust owners, 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 6.3(a)(ii), the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.

(b)           If at any time the Property Trustee shall cease to be eligible to so act under Section 6.3(a), the Property Trustee shall immediately resign in the manner and with the effect set forth in Section 6.6(c).

(c)           If the Property Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and the Holder of the Common Securities (as if it were the obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.

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

SECTION 6.4.                Qualifications of Administrative Trustees and Delaware Trustee Generally.

Each Administrative Trustee and the Delaware Trustee (unless the Property Trustee also acts as Delaware Trustee) shall be either a natural person who is at least 21 years of age or a legal entity that shall act through one or more Authorized Officers.

SECTION 6.5.                Initial Administrative Trustees.

The initial Administrative Trustees shall be:

Andrew Cecere, Daryl N. Bible and Lee R. Mitau, the business address of all of whom is c/o U.S. Bancorp, 800 Nicollet Mall, Minneapolis, Minnesota  55402.

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SECTION 6.6.                Appointment, Removal and Resignation of Trustees.

(a)           Subject to Section 6.6(b), Trustees may be appointed or removed without cause at any time:

(i)            until the issuance of any Securities, by written instrument executed by the Sponsor;

(ii)           after the issuance of any Securities (but prior to the occurrence of an Indenture Event of Default), by vote of the Holders of a Majority in Liquidation Amount of the Common Securities voting as a class at a meeting of the Holders of the Common Securities; and

(iii)          after the issuance of the Capital Securities and the occurrence of  an Indenture Event of Default, and only with respect to each of the Property Trustee and Delaware Trustee, by vote of the Holders of a Majority in Liquidation Amount of the Capital Securities.

(b)           The Trustee that acts as Property Trustee shall not be removed in accordance with Section 6.6(a) until a successor Trustee possessing the qualifications to act as Property Trustee under Section 6.3(a) (a “Successor Property Trustee”) has been appointed and has accepted such appointment by written instrument executed by such Successor Property Trustee and delivered to the Administrative Trustees and the Sponsor.  The Trustee that acts as Delaware Trustee shall not be removed in accordance with Section 6.6(a) until a successor Trustee possessing the qualifications to act as Delaware Trustee under Sections 6.2 and 6.4 (a “Successor Delaware Trustee”) has been appointed and has accepted such appointment by written instrument executed by such Successor Delaware Trustee and delivered to the Administrative Trustees and the Sponsor.

(c)           A Trustee appointed to office shall hold office until his or its successor shall have been appointed, until his death or its dissolution or until his or its removal or resignation.  Any Trustee may resign from office (without need for prior or subsequent accounting) by an instrument in writing signed by the Trustee and delivered to the Sponsor and the Trust, which resignation shall take effect upon such delivery or upon such later date as is specified therein; provided, however, that:

(i)            no such resignation of the Trustee that acts as the Property Trustee shall be effective:

a.until a Successor Property Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Property Trustee and delivered to the Trust, the Sponsor and the resigning Property Trustee; or

b.until the assets of the Trust have been completely liquidated and the proceeds thereof distributed to the holders of the Securities; and

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(ii)           no such resignation of the Trustee that acts as the Delaware Trustee shall be effective until a Successor Delaware Trustee has been appointed and has accepted such appointment by instrument executed by such Successor Delaware Trustee and delivered to the Trust, the Sponsor and the resigning Delaware Trustee.

(d)           The Holders of the Common Securities shall use their best efforts to promptly appoint a Successor Delaware Trustee or Successor Property Trustee, as the case may be, if the Property Trustee or the Delaware Trustee delivers an instrument of resignation in accordance with this Section 6.6.

(e)           If no Successor Property Trustee or Successor Delaware Trustee, as the case may be, shall have been appointed and accepted appointment as provided in this Section 6.6 within 60 days after delivery to the Sponsor and the Trust of an instrument of resignation or removal, the resigning or removed Property Trustee or Delaware Trustee, as applicable, may petition any court of competent jurisdiction in the U.S. for appointment of a Successor Property Trustee or Successor Delaware Trustee, as applicable.  Such court may thereupon, after prescribing such notice, if any, as it may deem proper, appoint a Successor Property Trustee or Successor Delaware Trustee, as the case may be.

(f)            No Property Trustee or Delaware Trustee shall be liable for the acts or omissions to act of any Successor Property Trustee or Successor Delaware Trustee, as the case may be.

SECTION 6.7.                Vacancies among Trustees.

If a Trustee ceases to hold office for any reason and the number of Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is increased pursuant to Section 6.1, a vacancy shall occur.  A resolution certifying the existence of such vacancy by the Administrative Trustees or, if there are more than two, a majority of the Administrative Trustees shall be conclusive evidence of the existence of such vacancy.  The vacancy shall be filled with a Trustee appointed in accordance with Section 6.6.

SECTION 6.8.                Effect of Vacancies.

The death, resignation, retirement, removal, bankruptcy, dissolution, liquidation, incompetence or incapacity to perform the duties of a Trustee shall not operate to annul, dissolve or terminate the Trust.  Whenever a vacancy in the number of Administrative Trustees shall occur, until such vacancy is filled by the appointment of an Administrative Trustee in accordance with Section 6.6, the Administrative Trustees in office, regardless of their number, shall have all the powers granted to the Administrative Trustees and shall discharge all the duties imposed upon the Administrative Trustees by this Trust Agreement.

SECTION 6.9.                Meetings.

If there is more than one Administrative Trustee, meetings of the Administrative Trustees shall be held from time to time upon the call of any Administrative Trustee.  Regular meetings of the Administrative Trustees may be held at a time and place fixed by resolution of the

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Administrative Trustees.  Notice of any in-person meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 48 hours before such meeting.  Notice of any telephonic meetings of the Administrative Trustees shall be hand delivered or otherwise delivered in writing (including by facsimile, with a hard copy by overnight courier) not less than 24 hours before a meeting.  Notices shall contain a brief statement of the time, place and anticipated purposes of the meeting.  The presence (whether in person or by telephone) of an Administrative Trustee at a meeting shall constitute a waiver of notice of such meeting except where an Administrative Trustee attends a meeting for the express purpose of objecting to the transaction of any activity on the ground that the meeting has not been lawfully called or convened.  Unless provided otherwise in this Trust Agreement, any action of the Administrative Trustees may be taken at a meeting by vote of a majority of the Administrative Trustees present (whether in person or by telephone) and eligible to vote with respect to such matter, provided that a Quorum is present, or without a meeting by the unanimous written consent of the Administrative Trustees.  In the event there is only one Administrative Trustee, any and all action of such Administrative Trustee shall be evidenced by a written consent of such Administrative Trustee.

SECTION 6.10.              Delegation of Power.

(a)           Any Administrative Trustee may, by power of attorney consistent with applicable law, delegate to any natural person over the age of 21 his, her or its power for the purpose of executing any documents contemplated in Section 3.6 or making any governmental filing; provided that such person is a United States Person as defined in Section 7701(a)(30) of the Code.

(b)           The Administrative Trustees shall have power to delegate from time to time to such of their number or to officers of the Trust the doing of such things and the execution of such instruments either in the name of the Trust or the names of the Administrative Trustees or otherwise as the Administrative Trustees may deem expedient, to the extent such delegation is not prohibited by applicable law or contrary to the provisions of the Trust, as set forth herein; provided, that such person is a United States Person as defined in Section 7701(a)(30) of the Code.

SECTION 6.11.              Merger, Conversion, Consolidation or Succession to Business.

Any corporation into which the Property Trustee, the Delaware Trustee or any Administrative Trustee that is not a natural person may be merged or converted or with such Trustee may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of such Trustee shall be the successor of such Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.

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ARTICLE 7

TERMS OF SECURITIES

SECTION 7.1.                General Provisions Regarding Securities.

(a)           The Administrative Trustees shall on behalf of the Trust issue one class of capital securities representing undivided beneficial interests in the assets of the Trust and one class of common securities representing undivided beneficial interests in the assets of the Trust.

(i)            Capital Securities.  The Capital Securities of the Trust have an aggregate liquidation amount with respect to the assets of the Trust of up to five hundred seventy five million dollars ($575,000,000) with respect to the closing of the sale of Capital Securities on one or more occasions.  The Capital Securities are hereby designated for identification purposes only as “6.30% Trust Preferred Securities” (the “Capital Securities”).  The Capital Security Certificates evidencing the Capital Securities shall be substantially in the form of Exhibit A to this Trust Agreement, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice or to conform to the rules of any stock exchange on which the Capital Securities are listed or quoted.

(ii)           Common Securities.  The Common Securities of the Trust have an aggregate liquidation amount with respect to the assets of the Trust of up to one million dollars ($1,000,000) with respect to the closing of the sale of Common Securities on one or more occasions.  The Common Securities are hereby designated for identification purposes only as “6.30% Common Securities” (the “Common Securities” and, together with the Capital Securities, the “Securities”).  The Common Security Certificates evidencing the Common Securities shall be substantially in the form of Exhibit B to this Trust Agreement, with such changes and additions thereto or deletions therefrom as may be required by ordinary usage, custom or practice.

(b)           Payment of Distributions on, and payment of the Redemption Price upon a redemption of, the Capital Securities and the Common Securities, as applicable, shall be made Pro Rata based on the liquidation amount of such Capital Securities and Common Securities; provided, however, that if on any date on which amounts payable on distribution or redemption, an Indenture Event of Default shall have occurred and be continuing, no payment of any Distribution on, or Redemption Price of, any of the Common Securities, and no other payment on account of the redemption, liquidation or other acquisition of such Common Securities, shall be made unless payment in full in cash of all accumulated and unpaid Distributions on all of the outstanding Capital Securities for all Distribution periods terminating on or prior thereto, or, in the case of amounts payable on redemption, the full amount of the Redemption Price for all of the outstanding Capital Securities then called for redemption, shall have been made or provided for, and all funds available to the Property Trustee shall first be applied to the payment in full in cash of all Distributions on, or the Redemption Price of, the Capital Securities then due and

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payable.  The Trust shall issue no securities or other interests in the assets of the Trust other than the Capital Securities and the Common Securities.

(c)           The Certificates shall be signed on behalf of the Trust by an Administrative Trustee.  Such signature shall be the manual or facsimile signature of any present or any future Administrative Trustee.  In case an Administrative Trustee of the Trust who shall have signed any of the Certificates shall cease to be such Administrative Trustee before the Certificates so signed shall be delivered by the Trust, such Certificates nevertheless may be delivered as though the person who signed such Certificates had not ceased to be such Administrative Trustee; and any Certificate may be signed on behalf of the Trust by such persons who, at the actual date of execution of such Certificate, shall be the Administrative Trustees of the Trust, although at the date of the execution and delivery of the Trust Agreement any such person was not such an Administrative Trustee.  Certificates shall be printed, lithographed or engraved or may be produced in any other manner as is reasonably acceptable to the Administrative Trustees, as evidenced by their execution thereof, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements as the Administrative Trustees may deem appropriate, or as may be required to comply with any law or with any rule or regulation of any stock exchange on which Securities may be listed, or to conform to usage.

A Certificate representing Capital Securities shall not be valid until authenticated by the manual signature of an authorized officer of the Property Trustee.  Such signature shall be conclusive evidence that such Certificate has been authenticated under this Trust Agreement.

Upon a written order of the Trust signed by one Administrative Trustee, the Property Trustee shall authenticate the Certificates representing Capital Securities for original issue.  The aggregate amount of Capital Securities outstanding at any time shall not exceed the liquidation amount set forth in Section 7.1(a)(i).

The Property Trustee may appoint an authenticating agent acceptable to the Trust to authenticate Certificates.  An authenticating agent may authenticate Certificates whenever the Property Trustee may do so.  Each reference in this Trust Agreement to authentication by the Property Trustee includes authentication by such agent.  An authenticating agent has the same rights as the Property Trustee to deal with the Sponsor or an Affiliate of the Sponsor.

(d)           The consideration received by the Trust for the issuance of the Securities shall constitute a contribution to the capital of the Trust and shall not constitute a loan to the Trust.

(e)           Upon issuance of the Securities as provided in this Trust Agreement, the Securities so issued shall be deemed to be validly issued, fully paid and non-assessable undivided beneficial interests in the assets of the Trust.

(f)            Every Person, by virtue of having become a Holder or a Capital Security Beneficial Owner in accordance with the terms of this Trust Agreement, shall be deemed to have expressly assented and agreed to the terms of, and shall be bound by, this Trust Agreement and the terms of the Securities.

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(g)           The holders of the Securities shall have no preemptive or similar rights.

SECTION 7.2.                Distributions.

(a)           As owners of undivided beneficial ownership interests in the ICONs, holders of Securities shall be entitled (subject to the last sentence of this Section 2.2(a)) to receive cumulative cash Distributions at the rate per annum of 6.30% of the stated liquidation amount of $25.00 per Security.  Pursuant to the Indenture, the amount of interest on the ICONs payable for any period shorter than a full quarterly interest period, and, as a result, Distributions on the Securities payable for any period shorter than a full quarterly distribution period shall 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.  Subject to Section 7.1(b), Distributions shall be made on the Capital Securities and the Common Securities on a Pro Rata basis.  Pursuant to the Indenture, interest on the ICONs shall, from the date of original issue, accrue and be cumulative, and, as a result Distributions on the Securities shall, from the date of original issue, accumulate and be cumulative.  Distributions shall be payable quarterly in arrears on each February 15, May 15, August 15 and November 15 of each year, commencing May 15, 2007, when, as and if available for payment, by the Property Trustee, except as otherwise described below.  Distributions are payable only to the extent that payments are made by the ICON Issuer in respect of the ICONs held by the Property Trustee and to the extent that the Trust has funds available for the payment of such Distributions in the Property Account.

(b)           Pursuant to the Indenture, interest not paid on the scheduled payment date will accrue and compound quarterly at the rate of 6.30% per annum, and, as a result, interest on the ICONs not paid on the scheduled payment date will accrue and compound quarterly at the rate of 6.30% per annum (and, as a result) the Distributions on the Securities will accumulate and compound at the rate of 6.30% per annum (“Compounded Distributions”).  “Distributions” shall mean ordinary cumulative distributions together with any Compounded Distributions.

(c)           If and to the extent that the ICON Issuer makes a payment of interest, premium and/or principal on the ICONs held by the Property Trustee (the amount of any such payment being a “Payment Amount”), the Property Trustee shall and is directed, to the extent funds are available for that purpose, make a Pro Rata distribution of the Payment Amount to Holders, subject to Section 7.1(b).

(d)           Distributions on the Securities shall be payable to the Holders thereof as they appear on the register of the Trust as of the close of business on the relevant record dates.  While the Capital Securities are represented by one or more Global Securities, the relevant record dates shall be the close of business the Business Day preceding such Distribution payment date; otherwise the relevant record date shall be the fifteenth day (whether or not a Business Day) preceding such Distribution payment date.  At all times, the Distribution payment dates shall correspond to the interest payment dates on the ICONs.  Distributions payable on any Securities that are not punctually paid on any Distribution payment date, as a result of the ICON Issuer having failed to make a payment under the ICONs, shall cease to be payable to the Person in whose name such Securities are registered on the relevant record date, and such defaulted

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Distribution will instead be payable to the Person in whose name such Securities are registered on the special record date or other specified date determined in accordance with this Trust Agreement.  If any date on which Distributions are payable on the Securities is not a Business Day, then payment of the Distribution payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay), with the same force and effect as if made on such payment date.

(e)           In the event that there is any money or other property held by or for the Trust that is not accounted for hereunder, such property shall be distributed Pro Rata among the Holders of the Securities except as provided in Section 7.1(b).

SECTION 7.3.                Redemption of Securities.

(a)           Upon the repayment or redemption, in whole or in part, of the ICONs held by the Trust, whether at the stated maturity of the ICONs or upon earlier redemption as provided in the Indenture, the proceeds from such repayment or redemption shall be simultaneously applied Pro Rata (subject to Section 7.1(b)) to redeem Securities having an aggregate liquidation amount equal to the aggregate principal amount of the ICONs so repaid or redeemed at the Redemption Price.  Holders shall be given not fewer than 30 nor more than 60 days notice of such redemption in accordance with Section 7.4.

(b)           On the date fixed for any distribution of ICONs, upon dissolution of the Trust, (i) the Securities will no longer be deemed to be outstanding and (ii) certificates representing Securities will be deemed to represent the ICONs having an aggregate principal amount equal to the stated liquidation amount of, and bearing accrued and unpaid interest equal to accumulated and unpaid distributions on, such Securities until such certificates are presented to the Sponsor or its agent for transfer or reissuance.

SECTION 7.4.                Redemption Procedures.

(a)           Notice of any redemption of, or notice of distribution of ICONs in exchange for, the Securities (a “Redemption/Distribution Notice”), which notice shall be irrevocable, will be given by the Trust by mail to each Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than 60 days before the date fixed for redemption or exchange thereof which, in the case of a redemption, will be the date fixed for redemption of the ICONs.  For purposes of the calculation of the date of redemption or exchange and the dates on which notices are given pursuant to this Section 7.4(a), a Redemption/Distribution Notice shall be deemed to be given on the day such notice is first mailed by first-class mail, postage prepaid, to Holders of Securities.  Each Redemption/Distribution Notice shall be addressed to the Holders of Securities at the address of each such Holder appearing in the register of the Trust.  No defect in the Redemption/Distribution Notice or in the mailing of either thereof with respect to any Holder shall affect the validity of the redemption or exchange proceedings with respect to any other Holder.

(b)           If fewer than all the outstanding Securities are to be so redeemed, the Common Securities and the Capital Securities will be redeemed Pro Rata (subject to Section 7.1(b)) and the Capital Securities to be redeemed will be redeemed as described in Section 7.4(c)

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below.  The particular Capital Securities to be redeemed will be selected on a Pro Rata basis by the Property Trustee from the outstanding Capital Securities not previously called for redemption, by such method (including, without limitation, by lot) as the Property Trustee shall deem fair and appropriate.  The Trust may not redeem the Securities in part unless all accumulated and unpaid Distributions to the date of redemption have been paid in full on all Securities then outstanding.  For all purposes of this Trust Agreement, unless the context otherwise requires, all provisions relating to the redemption of Capital Securities shall relate, in the case of any Capital Security redeemed or to be redeemed only in part, to the portion of the aggregate liquidation amount of Capital Securities which has been or is to be redeemed.

(c)           Subject to the Trust’s fulfillment of the notice requirements set forth in Section 7.4(a) above, if Securities are to be redeemed, then (i) with respect to Capital Securities represented by one or more Global Securities, by 12:00 noon, New York City time, on the redemption date, provided that the ICON Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the ICONs, the Property Trustee will deposit irrevocably with the Depositary or its nominee (or successor Clearing Agency or its nominee) funds sufficient to pay the applicable Redemption Price with respect to the Capital Securities and will give the Depositary irrevocable instructions and authority to pay the Redemption Price to the Holders of the Capital Securities and (ii) with respect to Securities not represented by one or more Global Securities, provided that the ICON Issuer has paid the Property Trustee a sufficient amount of cash in connection with the related redemption or maturity of the ICONs, the Property Trustee will give the Paying Agent irrevocable instructions and authority to pay the relevant Redemption Price to the Holders of such Securities upon surrender of their certificates evidencing the Capital Securities.  Payment of the Redemption Price on the Capital Securities will be made to the recordholders thereof as they appear on the register of the Trust on the relevant record date, which shall be one Business Day prior to the relevant redemption date; provided, however, that with respect to the Capital Securities not represented by one or more Global Securities, the relevant record date shall be the date fifteen days prior to the relevant redemption date.  If any date fixed for redemption of Securities is not a Business Day, then payment of the Redemption Price payable on such date will be made on the next succeeding day that is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on such date fixed for redemption.  If, however, the Business Day falls in the next calendar year, then payment of the Redemption Price will be made on the immediately preceding Business Day with the same force and effect as if made on such date fixed for redemption.  If payment of the Redemption Price in respect of any Securities is not paid because the payment of the Redemption Price on the ICONs is not made, interest will continue to accrue on the ICONs, and, as a result, Distributions on such Securities will continue to accumulate at the then applicable rate from the original redemption date to the actual date of payment, in which case the actual payment date will be considered the date fixed for redemption for purposes of calculating the Redemption Price.  For these purposes, the applicable Redemption Price shall not include Distributions which are being paid to Holders who were Holders on a relevant record date.  If a Redemption/Distribution Notice shall have been given and funds deposited or paid as required, then immediately prior to the close of business on the date of such deposit or payment, Distributions will cease to accumulate on the Securities called for redemption and all rights of Holders of such Securities so called for redemption will cease, except the right of the Holders to receive the Redemption Price, but without interest on

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such Redemption Price, and from and after the date fixed for redemption, such Securities will cease to be outstanding.

Neither the Administrative Trustees nor the Trust shall be required to register or cause to be registered the transfer of any Securities that have been called for redemption, except in the case of any Securities being redeemed in part, any portion thereof not to be redeemed.

(d)           Subject to the foregoing and applicable law (including, without limitation, United States federal securities laws), the ICON Issuer or its subsidiaries may at any time and from time to time purchase outstanding Capital Securities by tender, in the open market or by private agreement.

SECTION 7.5.                Voting Rights of Capital Securities.

(a)           Except as provided under Section 6.6, Section 11.1 and this Article 7 and as otherwise required by the Delaware Statutory Trust Act, the Trust Indenture Act and other applicable law, the Holders of the Capital Securities shall have no voting rights.

(b)           Subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in Section 7.5(d) below, the Holders of a Majority in Liquidation Amount of the Capital Securities voting separately as a class have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or to direct the exercise of any trust or power conferred upon the Property Trustee under the Trust Agreement, including the right to direct the Property Trustee, as Holder of the ICONs, to (i) exercise the remedies available to it under the Indenture as a Holder of the ICONs; (ii) consent to any amendment or modification of the Indenture or the ICONs where such consent shall be required or (iii) waive any past default and its consequences that is waivable under Section 5.13 of the Indenture; provided, however, that if an Indenture Event of Default has occurred and is continuing, then the Holders of 25% of the aggregate liquidation amount of the Capital Securities may direct the Property Trustee to declare the principal of and interest on the ICONs due and payable; provided, further, that where a consent or action under the Indenture would require the consent or act of the Holders of more than a majority of the aggregate principal amount of ICONs affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount of the Capital Securities which is at least equal to the percentage required under the Indenture may direct the Property Trustee to give such consent to take such action.

(c)           If the Property Trustee fails to enforce its rights under the ICONs after a Holder of Capital Securities has made a written request, such Holder of Capital Securities may, to the extent permitted by applicable law, institute a legal proceeding directly against the ICON Issuer to enforce the Property Trustee’s rights under the Indenture without first instituting any legal proceeding against the Property Trustee or any other Person.  In addition, if a Trust Enforcement Event has occurred and is continuing and such event is attributable to the failure of the ICON Issuer to pay interest in full on the ICONs for a period of 30 days after a Deferral Period has continued for 40 consecutive quarters, then a Holder of Capital Securities may directly institute a Direct Action against the ICON Issuer on or after the respective due date specified in the ICONs;

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(d)           The Property Trustee shall notify all Holders of the Capital Securities of any notice of any Indenture Event of Default received from the ICON Issuer with respect to the ICONs.  Such notice shall state that such Indenture Event of Default also constitutes a Trust Enforcement Event.  Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 7.5(b)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not be classified as an association or publicly traded partnership taxable as a corporation for United States federal income tax purposes as a result of such action.

(e)           In the event the consent of the Property Trustee, as the Holder of the ICONs, is required under the Indenture with respect to any amendment or modification of the Indenture, the Property Trustee shall request the direction of the Holders of the Capital Securities with respect to such amendment or modification and shall vote with respect to such amendment or modification as directed by not less than a majority in liquidation amount of the Capital Securities voting together as a single class; provided, however, that where a consent under the Indenture would require the consent of the Holders of more than a majority of the aggregate principal amount of the ICONs, the Property Trustee may only give such consent at the direction of the Holders of at least the same proportion in aggregate stated liquidation amount of the Securities.  The Property Trustee shall not take any such action in accordance with the directions of the Holders of the Securities unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that the Trust will not be classified as an association or publicly traded partnership taxable as a corporation for United States federal income tax purposes as a result of such action.

(f)            A waiver of an Indenture Event of Default with respect to the ICONs will constitute a waiver of the corresponding Trust Enforcement Event.

(g)           Any required approval or direction of Holders of Capital Securities may be given at a separate meeting of Holders of Capital Securities convened for such purpose, at a meeting of all of the Holders of Securities or pursuant to written consent.  The Administrative Trustees will cause a notice of any meeting at which Holders of Capital Securities are entitled to vote to be mailed to each Holder of record of Capital Securities.  Each such notice will include a statement setting forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote and (iii) instructions for the delivery of proxies.

(h)           No vote or consent of the Holders of Capital Securities shall be required for the Trust to redeem and cancel Capital Securities or distribute ICONs in accordance with this Trust Agreement and the terms of the Securities.

(i)            Notwithstanding that Holders of Capital Securities are entitled to vote or consent under any of the circumstances described above, any of the Securities that are owned at such time by the ICON Issuer, any Administrative Trustee or any entity directly or indirectly controlled by, or under direct or indirect common control with, the ICON Issuer or any Administrative Trustee, shall not be entitled to vote or consent and shall, for purposes of such vote or consent, be treated as if such Securities were not outstanding; provided, however, that

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Persons otherwise eligible to vote to whom the ICON Issuer or any of its subsidiaries have pledged Capital Securities may vote or consent with respect to such pledged Capital Securities under any of the circumstances described herein.

(j)            Subject to Sections 6.6(a) and 7.5(k), Holders of the Capital Securities shall have no rights to appoint or remove the Trustees, who may be appointed, removed or replaced solely by the Common Securities Holder.

(k)           If an Indenture Event of Default has occurred and is continuing, the Property Trustee and the Delaware Trustee may be removed at such time only by a Majority in Liquidation Amount of the Capital Securities.

(l)            The Trustees shall not revoke any action previously authorized or approved by a vote of the Holders of the Securities, except by a subsequent vote of the Holders of the Securities.

SECTION 7.6.                Voting Rights of Common Securities.

(a)           Except as provided under Section 6.1(b), this Section 7.6 or Section 11.1 or as otherwise required by the Delaware Statutory Trust Act, the Trust Indenture Act or other applicable law or provided by the Trust Agreement, the Holders of the Common Securities will have no voting rights.

(b)           Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common Securities shall be entitled, in accordance with Article VI of this Trust Agreement, to vote to appoint, remove or replace any Trustee or to increase or decrease the number of Trustees.

(c)           Subject to Section 2.6 and only after all Trust Enforcement Events with respect to the Capital Securities have been cured, waived, or otherwise eliminated and subject to the requirement of the Property Trustee obtaining a tax opinion in certain circumstances set forth in this paragraph (c), the Holders of a Majority in Liquidation Amount of the Common Securities have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Property Trustee, or direct the exercise of any trust or power conferred upon the Property Trustee under this Trust Agreement, including the right to direct the Property Trustee, as Holder of the ICONs, to (i) exercise the remedies available to it under the Indenture as a Holder of the ICONs, (ii) consent to any amendment or modification of the Indenture or the ICONs where such consent shall be required or (iii) waive any past default and its consequences that is waivable under Section 5.13 of the Indenture; provided, however, that where a consent or action under the Indenture would require the consent or act of the Holders of more than a majority of the aggregate principal amount of ICONs affected thereby, only the Holders of the percentage of the aggregate stated liquidation amount of the Common Securities which is at least equal to the percentage required under the Indenture may direct the Property Trustee to have such consent or take such action.  Except with respect to directing the time, method, and place of conducting a proceeding for a remedy, the Property Trustee shall be under no obligation to take any of the actions described in clause 7.6(c)(i) and (ii) above unless the Property Trustee has obtained an opinion of independent tax counsel to the effect that, as a result of such action, for

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United States federal income tax purposes the Trust will not be classified as other than a grantor trust.

(d)           If the Property Trustee fails to enforce its rights under the ICONs after a Holder of Common Securities has made a written request, such Holder of Common Securities may, to the extent permitted by applicable law, directly institute a legal proceeding directly against the ICON Issuer to enforce the Property Trustee’s rights under the ICONs without first instituting any legal proceeding against the Property Trustee or any other Person.

(e)           A waiver of an Indenture Event of Default with respect to the ICONs will constitute a waiver of the corresponding Trust Enforcement Event.

(f)            Any required approval or direction of Holders of Common Securities may be given at a separate meeting of Holders of Common Securities convened for such purpose, at a meeting of all of the Holders of Securities or pursuant to written consent.  The Administrative Trustees will cause a notice of any meeting at which Holders of Common Securities are entitled to vote to be mailed to each Holder of record of Common Securities.  Each such notice will include a statement setting forth (i) the date of such meeting, (ii) a description of any resolution proposed for adoption at such meeting on which such Holders are entitled to vote and (iii) instructions for the delivery of proxies.

(g)           No vote or consent of the Holders of the Common Securities will be required for the Trust to redeem and cancel Common Securities or to distribute ICONs in accordance with the Trust Agreement and the terms of the Securities.

SECTION 7.7.                Paying Agent.

The Trust shall maintain in the Borough of Manhattan, City of New York, State of New York, an office or agency where the Capital Securities may be presented for payment (“Paying Agent”) and to pay Distributions, redemption payments or liquidation payments on behalf of the Trust with respect to all Securities and any such Paying Agent shall comply with Section 317(b) of the Trust Indenture Act.  The Trust may appoint the paying agent and may appoint one or more additional paying agents in such other locations as it shall determine.  The term “Paying Agent” includes any additional paying agent.  The Trust may change any Paying Agent without prior notice to the Holders.  The Trust shall notify the Property Trustee of the name and address of any Paying Agent not a party to this Trust Agreement.  If the Trust fails to appoint or maintain another entity as Paying Agent, the Property Trustee shall act as such.  The Trust or any of its Affiliates may act as Paying Agent.  U.S. Bank National Association shall initially act as Paying Agent for the Securities and the initial office of the Paying Agent shall be U.S. Bank National Association, 100 Wall Street, 16th Floor, New York, New York 10005 Attention: Corporate Trust Services.  In the event U.S. Bank National Association shall no longer be the Paying Agent, the Administrative Trustees shall appoint a successor (which shall be a bank or trust company acceptable to the ICON Issuer) to act as Paying Agent.  The Paying Agent shall be permitted to resign as Paying Agent upon 30 days’ written notice to the Property Trustee and the ICON Issuer.

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SECTION 7.8.                Listing.

The Sponsor shall use its best efforts to cause the Capital Securities to be listed for quotation on the New York Stock Exchange.

SECTION 7.9.                Transfer of Securities.

(a)           Securities may only be transferred, in whole or in part, in accordance with the terms and conditions set forth in this Trust Agreement and in the terms of the Securities.  To the fullest extent permitted by law, any transfer or purported transfer of any Security not made in accordance with this Trust Agreement shall be null and void.

(b)           (i)            Subject to this Article 7, Capital Securities shall be freely transferable.

(ii)           The Holder of the Common Securities may not transfer the Common Securities except (A) in compliance with a consolidation, merger, sale, conveyance or lease of the Sponsor in compliance with Article VIII of the Indenture or (B) to the Sponsor or an Affiliate thereof in compliance with applicable law, including the Securities Act and applicable state securities and blue sky laws.  To the fullest extent permitted by law, any attempted transfer of the Common Securities other than as set forth in the immediately preceding sentence shall be null and void.

(c)           The Trust shall cause to be kept at an office or offices designated by the Trust a register (the register maintained in such office being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Capital Securities and of transfers of Capital Securities.  The Trust initially designates U.S. Bank National Association, 100 Wall Street, 16th Floor, New York, New York 10005 Attention: Corporate Trust Services, as its office for the purpose of registering Capital Securities and transfers of Capital Securities, and hereby initially appoints U.S. Bank National Association as “Security Registrar” for such purposes.

(d)           Upon surrender for registration of transfer of any Security at an office or agency of the Trust designated for such purpose, the Trust shall execute, and the Property Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of any authorized denominations and of a like aggregate principal amount.

(e)           At the option of the Holder, Securities may be exchanged for other Securities of any authorized denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency.  Whenever any Securities are so surrendered for exchange, the Trust shall execute, and in the case of Capital Securities the Property Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.

(f)            Every Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Trust or the Property Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Trust and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.

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(g)           No service charge shall be made for any registration of transfer or exchange of Securities, but the Trust may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities.

(h)           If the Securities are to be redeemed in part, the Trust shall not be required (A) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of any such Securities selected for redemption under Section 7.4 and ending at the close of business on the day of such mailing, or (B) to register the transfer or exchange of any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.

SECTION 7.10.              Mutilated, Destroyed, Lost or Stolen Certificates.

If:

(a)           any mutilated Certificates should be surrendered to the Administrative Trustees, or if the Administrative Trustees shall receive evidence to their satisfaction of the destruction, loss or theft of any Certificate; and

(b)           there shall be delivered to the Administrative Trustees such security or indemnity as may be required by them to keep each of the Trustees, the Sponsor and the Trust harmless,

then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, any Administrative Trustee on behalf of the Trust shall execute and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of like denomination.  In connection with the issuance of any new Certificate under this Section 7.10, the Administrative Trustees may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.  Any duplicate Certificate issued pursuant to this Section shall constitute conclusive evidence of an ownership interest in the relevant Securities, as if originally issued, whether or not the lost, stolen or destroyed Certificate shall be found at any time.

SECTION 7.11.              Deemed Security Holders.

The Trustees may treat the Person in whose name any Certificate shall be registered on the register of the Trust as the sole holder of such Certificate and of the Securities represented by such Certificate for purposes of receiving Distributions and for all other purposes whatsoever and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such Certificate or in the Securities represented by such Certificate on the part of any Person, whether or not the Trust shall have actual or other notice thereof.

SECTION 7.12.              Global Securities.

On initial issuance, the Capital Securities shall be issued in definitive form to the Sponsor.  Upon transfer by the Sponsor of the Capital Securities, the Capital Securities may be

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issued in the form of one or more Global Securities.  If the Capital Securities are to be issued in the form of one or more Global Securities, then an Administrative Trustee on behalf of the Trust shall execute and the Property Trustee shall authenticate and deliver one or more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate liquidation amount of all of the Capital Securities to be issued in the form of Global Securities and not yet cancelled, (ii) shall be registered in the name of the Depositary for such Global Security or the nominee of such Depositary, and (iii) shall be delivered by the Property Trustee to such Depositary or pursuant to such Depositary’s instructions.  Global Securities shall bear a legend substantially to the following effect:

“This Capital Security is a Global Security within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of The Depository Trust Company, a New York corporation (the “Depositary”), or a nominee of the Depositary.  This Capital Security is exchangeable for Capital Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Trust Agreement and no transfer of this Capital Security (other than a transfer of this Capital Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances.

Unless this Capital Security Certificate is presented by an authorized representative of the Depositary to USB Capital XII or its agent for registration of transfer, exchange or payment, and any Capital Security Certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.”

Capital Securities not represented by a Global Security issued in exchange for all or a part of a Global Security pursuant to this Section 7.12 shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Property Trustee.  Upon execution and authentication, the Property Trustee shall deliver such Capital Securities not represented by a Global Security to the Persons in whose names such definitive Capital Securities are so registered.

At such time as all interests in Global Securities have been redeemed, repurchased or cancelled, such Global Securities shall be, upon receipt thereof, cancelled by the Property Trustee in accordance with standing procedures of the Depositary.  At any time prior to such cancellation, if any interest in Global Securities is exchanged for Capital Securities not represented by a Global Security, redeemed, cancelled or transferred to a transferee who receives Capital Securities not represented by a Global Security therefor or any Capital Security not represented by a Global Security is exchanged or transferred for part of Global Securities, the principal amount of such Global Securities shall, in accordance with the standing procedures of

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the Depositary, be reduced or increased, as the case may be, and an endorsement shall be made on such Global Securities by the Property Trustee to reflect such reduction or increase.

The Trust and the Property Trustee may for all purposes, including the making of payments due on the Capital Securities, deal with the Depositary as the authorized representative of the Holders for the purposes of exercising the rights of Holders hereunder.  The rights of the owner of any beneficial interest in a Global Security shall be limited to those established by law and agreements between such owners and depository participants provided, that no such agreement shall give any rights to any Person against the Trust or the Property Trustee without the written consent of the parties so affected.  Multiple requests and directions from and votes of the Depositary as holder of Capital Securities in global form with respect to any particular matter shall not be deemed inconsistent to the extent they do not represent an amount of Capital Securities in excess of those held in the name of the Depositary or its nominee.

If at any time the Depositary for any Capital Securities represented by one or more Global Securities notifies the Trust that it is unwilling or unable to continue as Depositary for such Capital Securities or if at any time the Depositary for such Capital Securities shall no longer be eligible under this Section 7.12, the Trust shall appoint a successor Depositary with respect to such Capital Securities.  If a successor Depositary for such Capital Securities is not appointed by the Trust within 90 days after the Trust receives such notice or becomes aware of such ineligibility, the Trust’s election that such Capital Securities be represented by one or more Global Securities shall no longer be effective and the Trust shall execute, and the Property Trustee will authenticate and deliver, Capital Securities in definitive registered form, in any authorized denominations, in an aggregate liquidation amount equal to the principal amount of the Global Security or Capital Securities representing such Capital Securities in exchange for such Global Security or Capital Securities.

The Trust may at any time and in its sole discretion determine that the Capital Securities issued in the form of one or more Global Securities shall no longer be represented by a Global Security or Capital Securities.  In such event the Trust shall execute, and the Property Trustee, shall authenticate and deliver, Capital Securities in definitive registered form, in any authorized denominations, in an aggregate liquidation amount equal to the principal amount of the Global Security or Capital Securities representing such Capital Securities, in exchange for such Global Security or Capital Securities.

Notwithstanding any other provisions of this Trust Agreement (other than the provisions set forth in Section 7.9), Global Securities may not be transferred as a whole except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.

Interests of beneficial owners in a Global Security may be transferred or exchanged for Capital Securities not represented by a Global Security and Capital Securities not represented by a Global Security may be transferred or exchange for Global Securities in accordance with rules of the Depositary and the provisions of Section 7.9.

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ARTICLE 8

DISSOLUTION AND TERMINATION OF TRUST

SECTION 8.1.                Dissolution and Termination of Trust.

(a)           The Trust shall dissolve upon the earliest of:

(i)            the bankruptcy of the Holder of the Common Securities or the Sponsor;

(ii)           the filing of a certificate of dissolution or its equivalent with respect to the Sponsor or the revocation of the Sponsor’s charter and the expiration of 90 days after the revocation without a reinstatement thereof;

(iii)          the entry of a decree of judicial dissolution of the Sponsor or the Trust;

(iv)          the time when all of the Securities shall have been called for redemption and the amounts then due shall have been paid to the Holders in accordance with the terms of the Securities;

(v)           at the Sponsor’s election by notice and direction to the Property Trustee to distribute the ICONs to the Holders of the Securities in exchange for all of the Securities, subject to the receipt of any necessary approvals by the Federal Reserve that may then be required under the applicable capital guidelines or policies of the Federal Reserve; provided that the Sponsor will be required to obtain an opinion of an independent counsel that the distribution of the ICONs will not be taxable to the Holders of the Capital Securities for United States federal income tax purposes; or

(vi)          the time when all of the Administrative Trustees and the Sponsor shall have consented to dissolution of the Trust provided such action is taken before the issuance of any Securities.

(b)           As soon as is practicable after the occurrence of an event referred to in Section 8.1(a) and upon completion of the winding up and liquidation of the Trust, the Trustees shall terminate the Trust by filing a certificate of cancellation with the Secretary of State of the State of Delaware.

(c)           The provisions of Section 4.2 and Article 9 shall survive the termination of the Trust.

SECTION 8.2.                Liquidation Distribution Upon Dissolution of the Trust.

(a)           In the event of any voluntary or involuntary liquidation, dissolution, or winding-up of the Trust (each a “Liquidation”), the Holders of the Securities on the date of the Liquidation will be entitled to receive, out of the assets of the Trust available for distribution to

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Holders of Securities after satisfaction of the Trust’s liabilities to creditors, if any, distributions in cash or other immediately available funds in an amount equal to the aggregate of the stated liquidation amount of $25.00 per Security plus accumulated and unpaid Distributions thereon to the date of payment (such amount being the “Liquidation Distribution”), unless, in connection with such Liquidation, ICONs in an aggregate stated principal amount equal to the aggregate stated liquidation amount of, with an interest rate identical to the distribution rate of, and accumulated and unpaid interest equal to accrued and unpaid Distributions on, such Securities shall be distributed on a Pro Rata basis to the Holders of the Securities in exchange for such Securities.

(b)           If, upon any such Liquidation, the Liquidation Distribution can be paid only in part because the Trust has insufficient assets available to pay in full the aggregate Liquidation Distribution, then the amounts payable directly by the Trust on the Securities shall be paid on a Pro Rata basis.  The Holders of the Common Securities will be entitled to receive distributions upon any such Liquidation Pro Rata with the Holders of the Capital Securities except that if an Indenture Event of Default has occurred and is continuing, the Capital Securities shall have a preference over the Common Securities with regard to such distributions as provided for in Section 7.1(b).

ARTICLE 9

LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, DELAWARE

TRUSTEES OR OTHERS

SECTION 9.1.                Liability.

(a)           Except as expressly set forth in this Trust Agreement, the Guarantee and the terms of the Securities, the Sponsor:

(i)            shall not be personally liable for the return of any portion of the capital contributions (or any return thereon) of the Holders of the Securities which shall be made solely from assets of the Trust; and

(ii)           shall not be required to pay to the Trust or to any Holder of Securities any deficit upon dissolution of the Trust or otherwise.

(b)           Pursuant to Section 3803(a) of the Delaware Statutory Trust Act, the Holder of the Common Securities shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware; provided, however, the Holders of the Common Securities shall be liable for all of the debts and obligations of the Trust (other than with respect to the Securities) to the extent not satisfied out of the Trust’s assets.

(c)           Pursuant to Section 3803(a) of the Delaware Statutory Trust Act, the Holders of the Capital Securities shall be entitled to the same limitation of personal liability

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extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.

SECTION 9.2.                Exculpation.

(a)           No Indemnified Person shall be liable, responsible or accountable in damages or otherwise to the Trust or any Covered Person for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Indemnified Person in good faith on behalf of the Trust and in a manner such Indemnified Person reasonably believed to be within the scope of the authority conferred on such Indemnified Person by this Trust Agreement or by law, except that an Indemnified Person shall be liable for any such loss, damage or claim incurred by reason of such Indemnified Person’s negligence or willful misconduct with respect to such acts or omissions.

(b)           An Indemnified Person shall be fully protected in relying in good faith upon the records of the Trust and upon such information, opinions, reports or statements presented to the Trust by any Person as to matters the Indemnified Person reasonably believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Trust, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which Distributions to Holders of Securities might properly be paid.

SECTION 9.3.                Fiduciary Duty.

(a)           To the extent that, at law or in equity, an Indemnified Person has duties (including fiduciary duties) and liabilities relating thereto to the Trust or to any other Covered Person, an Indemnified Person acting under this Trust Agreement shall not be liable to the Trust or to another Covered Person for its good faith reliance on the provisions of this Trust Agreement.  The provisions of this Trust Agreement, to the extent that they restrict the duties and liabilities of an Indemnified Person otherwise existing at law or in equity (other than the duties imposed on the Property Trustee under the Trust Indenture Act), are agreed by the parties hereto to replace such other duties and liabilities of such Indemnified Person.

(b)           Unless otherwise expressly provided herein:

(i)            whenever a conflict of interest exists or arises between any Covered Person and any Indemnified Person; or

(ii)           whenever this Trust Agreement or any other agreement contemplated herein or therein provides that an Indemnified Person shall act in a manner that is, or provides terms that are, fair and reasonable to the Trust or any Holder of Securities,

the Indemnified Person shall resolve such conflict of interest, take such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interests, any customary or accepted industry practices and any applicable generally accepted

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accounting practices or principles.  In the absence of bad faith by the Indemnified Person, the resolution, action or term so made, taken or provided by the Indemnified Person shall not constitute a breach of this Trust Agreement or any other agreement contemplated herein or of any duty or obligation of the Indemnified Person at law or in equity or otherwise.

(c)           Whenever in this Trust Agreement an Indemnified Person is permitted or required to make a decision:

(i)            in its “discretion” or under a grant of similar authority, the Indemnified Person shall be entitled to consider such interests and factors as it desires, including its own interests, and shall have no duty or obligation to give any consideration to any interest of or factors affecting the Trust or any other Person; or

(ii)           in its “good faith” or under another express standard, the Indemnified Person shall act under such express standard and shall not be subject to any other or different standard imposed by this Trust Agreement or by applicable law.

SECTION 9.4.                Indemnification.

(a)           The ICON Issuer shall indemnify, to the full extent permitted by law, any ICON Issuer Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Trust) by reason of the fact that he is or was an ICON Issuer Indemnified Person against expenses (including attorney fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.  The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the ICON Issuer Indemnified Person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Trust, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.

(b)           The ICON Issuer shall indemnify, to the full extent permitted by law, any ICON Issuer Indemnified Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Trust to procure a judgment in its favor by reason of the fact that he is or was an ICON Issuer Indemnified Person against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Trust and except that no such indemnification shall be made in respect of any claim, issue or matter as to which such ICON Issuer Indemnified Person shall have been adjudged to be liable to the Trust unless and only to the extent that the Court of Chancery of Delaware or the court in which such

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action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such Court of Chancery or such other court shall deem proper.

(c)           Any indemnification under paragraphs (a) and (b) of this Section 9.4 (unless ordered by a court) shall be made by the ICON Issuer only as authorized in the specific case upon a determination that indemnification of the ICON Issuer Indemnified Person is proper in the circumstances because he has met the applicable standard of conduct set forth in paragraphs (a) and (b).  Such determination shall be made (1) by the Administrative Trustees by a majority vote of a quorum consisting of such Administrative Trustees who were not parties to such action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion, or (3) by the Common Security Holder of the Trust.

(d)           Expenses (including attorneys’ fees) incurred by an ICON Issuer Indemnified Person in defending a civil, criminal, administrative or investigative action, suit or proceeding referred to in paragraphs (a) and (b) of this Section 9.4 shall be paid by the ICON Issuer in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such ICON Issuer Indemnified Person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the ICON Issuer as authorized in this Section 9.4.  Notwithstanding the foregoing, no advance shall be made by the ICON Issuer if a determination is reasonably and promptly made (1) by the Administrative Trustees by a majority vote of a quorum of disinterested Administrative Trustees, (2) if such a quorum is not obtainable, or, even if obtainable, if a quorum of disinterested Administrative Trustees so directs, by independent legal counsel in a written opinion or (3) the Common Security Holder of the Trust, that, based upon the facts known to the Administrative Trustees, counsel or the Common Security Holder at the time such determination is made, such ICON Issuer Indemnified Person acted in bad faith or in a manner that such person did not believe to be in or not opposed to the best interests of the Trust, or, with respect to any criminal proceeding, that such ICON Issuer Indemnified Person believed or had reasonable cause to believe his conduct was unlawful.  In no event shall any advance be made in instances where the Administrative Trustees, independent legal counsel or Common Security Holder reasonably determine that such person deliberately breached his duty to the Trust or its Common or Capital Security Holders.

(e)           The indemnification and advancement of expenses provided by, or granted pursuant to, the other paragraphs of this Section 9.4 shall not be deemed exclusive of any other rights to which those seeking indemnification and advancement of expenses may be entitled under any agreement, vote of stockholders or disinterested directors of the ICON Issuer or Capital Security Holders of the Trust or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office.  All rights to indemnification under this Section 9.4 shall be deemed to be provided by a contract between the ICON Issuer and each ICON Issuer Indemnified Person who serves in such capacity at any time while this Section 9.4 is in effect.  Any repeal or modification of this Section 9.4 shall not affect any rights or obligations then existing.

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(f)            The ICON Issuer or the Trust may purchase and maintain insurance on behalf of any person who is or was an ICON Issuer Indemnified Person against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the ICON Issuer would have the power to indemnify him against such liability under the provisions of this Section 9.4.

(g)           For purposes of this Section 9.4, references to “the Trust” shall include, in addition to the resulting or surviving entity, any constituent entity (including any constituent of a constituent) absorbed in a consolidation or merger, so that any person who is or was a director, trustee, officer or employee of such constituent entity, or is or was serving at the request of such constituent entity as a director, trustee, officer, employee or agent of another entity, shall stand in the same position under the provisions of this Section 9.4 with respect to the resulting or surviving entity as he would have with respect to such constituent entity if its separate existence had continued.

(h)           The indemnification and advancement of expenses provided by, or granted pursuant to, this Section 9.4 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be an ICON Issuer Indemnified Person and shall inure to the benefit of the heirs, executors and administrators of such a person.  The obligation to indemnify as set forth in this Section 9.4 shall survive the resignation or removal of the Delaware Trustee or the Property Trustee or the termination of this Trust Agreement.

SECTION 9.5.                Outside Businesses.

Subject to the provisions of Section 6.3, any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess an interest in other business ventures of any nature or description, independently or with others, similar or dissimilar to the activities of the Trust, and the Trust and the Holders of Securities shall have no rights by virtue of this Trust Agreement in and to such independent ventures or the income or profits derived therefrom, and the pursuit of any such venture, even if competitive with the activities of the Trust, shall not be deemed wrongful or improper.  No Covered Person, the Sponsor, the Delaware Trustee or the Property Trustee shall be obligated to present any particular investment or other opportunity to the Trust even if such opportunity is of a character that, if presented to the Trust, could be taken by the Trust, and any Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall have the right to take for its own account (individually or as a partner or fiduciary) or to recommend to others any such particular investment or other opportunity.  Any Covered Person, the Delaware Trustee and the Property Trustee may engage or be interested in any financial or other transaction with the Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or act on any committee or body of holders of, securities or other obligations of the Sponsor or its Affiliates.

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ARTICLE 10

ACCOUNTING

SECTION 10.1.              Fiscal Year.

The fiscal year (“Fiscal Year”) of the Trust shall be the calendar year, or such other year as is required by the Code.

SECTION 10.2.              Certain Accounting Matters.

(a)           At all times during the existence of the Trust, the Administrative Trustees shall keep, or cause to be kept, full books of account, records and supporting documents, which shall reflect in reasonable detail, each transaction of the Trust.  The books of account shall be maintained on the accrual method of accounting, in accordance with generally accepted accounting principles, consistently applied.  The Trust shall use the accrual method of accounting for United States federal income tax purposes.  The books of account and the records of the Trust shall be examined by and reported upon as of the end of each Fiscal Year of the Trust by a firm of independent certified public accountants selected by the Administrative Trustees.

(b)           The Administrative Trustees shall cause to be prepared and delivered to each of the Holders of Securities, within 90 days after the end of each Fiscal Year of the Trust, annual financial statements of the Trust, including a balance sheet of the Trust as of the end of such Fiscal Year, and the related statements of income or loss.

(c)           The Administrative Trustees shall cause to be duly prepared and delivered to each of the Holders of Securities, an annual United States federal income tax information statement, required by the Code, containing such information with regard to the Securities held by each Holder as is required by the Code and the Treasury Regulations.  Notwithstanding any right under the Code to deliver any such statement at a later date, the Administrative Trustees shall endeavor to deliver all such statements within 30 days after the end of each Fiscal Year of the Trust.

(d)           The Administrative Trustees shall cause to be duly prepared and filed with the appropriate taxing authority, an annual United States federal income tax return, on a Form 1041 or such other form required by United States federal income tax law, and any other annual income tax returns required to be filed by the Administrative Trustees on behalf of the Trust with any state or local taxing authority.

SECTION 10.3.              Banking.

The Trust shall maintain one or more bank accounts in the name and for the sole benefit of the Trust; provided, however, that all payments of funds in respect of the ICONs held by the Property Trustee shall be made directly to the Property Account and no other funds of the Trust shall be deposited in the Property Account.  The sole signatories for such accounts shall be designated by the Administrative Trustees; provided, however, that the Property Trustee shall designate the signatories for the Property Account.

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SECTION 10.4.              Withholding.

The Trust and the Administrative Trustees shall comply with all withholding requirements under United States federal, state and local law.  The Trust shall request, and the Holders shall provide to the Trust, such forms or certificates as are necessary to establish an exemption from withholding with respect to each Holder, and any representations and forms as shall reasonably be requested by the Trust to assist it in determining the extent of, and in fulfilling, its withholding obligations.  The Administrative Trustees shall file required forms with applicable jurisdictions and, unless an exemption from withholding is properly established by a Holder, shall remit amounts withheld with respect to the Holder to applicable jurisdictions.  To the extent that the Trust is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Holder, the amount withheld shall be deemed to be a distribution in the amount of the withholding to the Holder.  In the event of any claimed over withholding, Holders shall be limited to an action against the applicable jurisdiction.  If the amount required to be withheld was not withheld from actual Distributions made, the Trust may reduce subsequent Distributions by the amount of such withholding.

ARTICLE 11

AMENDMENTS AND MEETINGS

SECTION 11.1.              Amendments.

(a)           Except as otherwise provided in this Trust Agreement or by any applicable terms of the Securities, this Trust Agreement may only be amended by a written instrument approved and executed by the Sponsor and (i) the Administrative Trustees (or, if there are more than two Administrative Trustees, a majority of the Administrative Trustees) and (ii) the Property Trustee if the amendment affects the rights, powers, duties, obligations or immunities of the Property Trustee; and (iii) the Delaware Trustee if the amendment affects the rights, powers, duties, obligations or immunities of the Delaware Trustee.

(b)           No amendment shall be made, and any such purported amendment shall be void and ineffective:

(i)            unless, in the case of any proposed amendment, the Property Trustee shall have first received an Officers’ Certificate from each of the Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Trust Agreement (including the terms of the Securities);

(ii)           unless, in the case of any proposed amendment which affects the rights, powers, duties, obligations or immunities of the Property Trustee, the Property Trustee shall have first received:

a.an Officers’ Certificate from each of the Trust and the Sponsor that such amendment is permitted by, and conforms to, the terms of this Trust Agreement (including the terms of the Securities) and that all conditions

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precedent to the execution and delivery of such amendment have been satisfied; and

b.an opinion of counsel (who may be counsel to the Sponsor or the Trust) that such amendment is permitted by, and conforms to, the terms of this Trust Agreement (including the terms of the Securities) and that all conditions precedent to the execution and delivery of such amendment have been satisfied; and

(iii)          to the extent the result of such amendment would be to:

a.cause the Trust to be classified as other than a grantor trust for United States federal income tax purposes;

b.reduce or otherwise adversely affect the powers of the Property Trustee in contravention of the Trust Indenture Act; or

c.cause the Trust to be deemed to be an Investment Company required to be registered under the Investment Company Act.

(c)           If the Trust has issued any Securities that remain outstanding:

(i)            any amendment that would (a) change the amount or timing of any distribution of the Securities or otherwise adversely affect the amount of any distribution required to be made in respect of the Securities as of a specified date or (b) restrict the right of a Holder of Securities to institute suit for the enforcement of any such payment on or after such date, will entitle the Holders of such Securities, voting together as a single class, to vote on such amendment or proposal and such amendment or proposal shall not be effective except with the approval of each of the Holders of the Securities affected thereby; and

(ii)           Except as provided in Section 11.1(c)(i) hereof, any provision of this Trust Agreement may be amended by the Trustee and the Sponsor with (i) the consent of the Holders representing not less than a Majority in Liquidation Amount of the Securities outstanding and (ii) receipt by the Trustees of an opinion of counsel to the effect that such amendment or the exercise of any power granted to the Trustees in accordance with such amendment will not affect the Trust’s status as a grantor trust for United States federal income tax purposes or the Trust’s exemption from status of an Investment Company.

(d)           This Section 11.1 shall not be amended without the consent of all of the Holders of the Securities.

(e)           Article 4 shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities.

54

(f)            The rights of the Holders of the Common Securities under Article 5 to increase or decrease the number of, and appoint and remove Trustees shall not be amended without the consent of the Holders of a Majority in Liquidation Amount of the Common Securities.

(g)           Notwithstanding Section 11.1(c), this Trust Agreement may be amended without the consent of the Holders of the Securities, if such amendment does not adversely affect in any material respect the rights of the holders of the Securities,  to:

(i)            cure any ambiguity;

(ii)           correct or supplement any provision in this Trust Agreement that may be defective or inconsistent with any other provision of this Trust Agreement;

(iii)          add to the covenants, restrictions or obligations of the Sponsor;

(iv)          to conform to any change in Rule 3a-5 of the Investment Company Act or written change in interpretation or application of Rule 3a-5 of the Investment Company Act by any legislative body, court, government agency or regulatory authority; or

(v)           to modify, eliminate and add to any provision of this Trust Agreement to ensure that the Trust will be classified as a grantor trust for United States federal income tax purposes at all times that any Securities are outstanding or to ensure that the Trust will not be required to register as an Investment Company under the Investment Company Act.

SECTION 11.2.              Meetings of the Holders of Securities; Action by Written Consent.

(a)           Meetings of the Holders of any class of Securities may be called at any time by the Administrative Trustees (or as provided in the terms of the Securities) to consider and act on any matter on which Holders of such class of Securities are entitled to act under the terms of this Trust Agreement, the terms of the Securities or the rules of any stock exchange on which the Capital Securities are listed or admitted for trading.  The Administrative Trustees shall call a meeting of the Holders of such class if directed to do so by the Holders of at least 10% in Liquidation Amount of such class of Securities.  Such direction shall be given by delivering to the Administrative Trustees one or more calls in a writing stating that the signing Holders of Securities wish to call a meeting and indicating the general or specific purpose for which the meeting is to be called.  Any Holders of Securities calling a meeting shall specify in writing the Certificates held by the Holders of Securities exercising the right to call a meeting and only those Securities specified shall be counted for purposes of determining whether the required percentage set forth in the second sentence of this paragraph has been met.

(b)           Except to the extent otherwise provided in the terms of the Securities, the following provisions shall apply to meetings of Holders of Securities:

55

(i)            notice of any such meeting shall be given to all the Holders of Securities having a right to vote thereat at least seven days and not more than 60 days before the date of such meeting.  Whenever a vote, consent or approval of the Holders of Securities is permitted or required under this Trust Agreement or the rules of any stock exchange on which the Capital Securities are listed or admitted for trading, such vote, consent or approval may be given at a meeting of the Holders of Securities.  Any action that may be taken at a meeting of the Holders of Securities may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by the Holders of Securities owning not less than the minimum amount of Securities in liquidation amount that would be necessary to authorize or take such action at a meeting at which all Holders of Securities having a right to vote thereon were present and voting.  Prompt notice of the taking of action without a meeting shall be given to the Holders of Securities entitled to vote who have not consented in writing.  The Administrative Trustees may specify that any written ballot submitted to the Security Holders for the purpose of taking any action without a meeting shall be returned to the Trust within the time specified by the Administrative Trustees;

(ii)           each Holder of a Security may authorize any Person to act for it by proxy on all matters in which a Holder of Securities is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting.  No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy.  Every proxy shall be revocable at the pleasure of the Holder of Securities executing such proxy.  Except as otherwise provided herein, all matters relating to the giving, voting or validity of proxies shall be governed by the General Corporation Law of the State of Delaware relating to proxies, and judicial interpretations thereunder, as if the Trust were a Delaware corporation and the Holders of the Securities were stockholders of a Delaware corporation;

(iii)          each meeting of the Holders of the Securities shall be conducted by the Administrative Trustees or by such other Person that the Administrative Trustees may designate; and

(iv)          unless the Delaware Statutory Trust Act, this Trust Agreement, the terms of the Securities, the Trust Indenture Act or the listing rules of any stock exchange on which the Capital Securities are then listed for trading, otherwise provides, the Administrative Trustees, in their sole discretion, shall establish all other provisions relating to meetings of Holders of Securities, including notice of the time, place or purpose of any meeting at which any matter is to be voted on by any Holders of Securities, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.

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ARTICLE 12

REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE

SECTION 12.1.              Representations and Warranties of the Property Trustee.

The Trustee that acts as initial Property Trustee represents and warrants to the Trust and to the Sponsor at the date of this Trust Agreement, and each Successor Property Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Property Trustee’s acceptance of its appointment as Property Trustee that:

(a)           the Property Trustee is a company duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with trust power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Trust Agreement;

(b)           the Property Trustee satisfies the requirements set forth in Section 6.3(a);

(c)           the execution, delivery and performance by the Property Trustee of this Trust Agreement have been duly authorized by all necessary corporate action on the part of the Property Trustee.  This Trust Agreement has been duly executed and delivered by the Property Trustee, and it constitutes a legal, valid and binding obligation of the Property Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors’ rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law);

(d)           the execution, delivery and performance of this Trust Agreement by the Property Trustee do not conflict with or constitute a breach of the articles of association or incorporation, as the case may be, or the by-laws (or other similar organizational documents) of the Property Trustee; and

(e)           no consent, approval or authorization of, or registration with or notice to, any Delaware or federal banking authority is required for the execution, delivery or performance by the Property Trustee of this Trust Agreement.

SECTION 12.2.              Representations and Warranties of the Delaware Trustee.

The Trustee that acts as initial Delaware Trustee represents and warrants to the Trust and to the Sponsor at the date of this Trust Agreement, and each Successor Delaware Trustee represents and warrants to the Trust and the Sponsor at the time of the Successor Delaware Trustee’s acceptance of its appointment as Delaware Trustee that:

(a)           the Delaware Trustee satisfies the requirements set forth in Section 6.2, satisfies Trust Section 3807(a) of the Delaware Statutory Trust Act and has the power and authority to execute and deliver, and to carry out and perform its obligations under the terms of, this Trust Agreement and, if it is not a natural person, is duly organized, validly

57

existing and in good standing under the laws of its jurisdiction of incorporation or organization;

(b)           the Delaware Trustee has been authorized to perform its obligations under the Certificate of Trust and this Trust Agreement.  This Trust Agreement under Delaware law constitutes a legal, valid and binding obligation of the Delaware Trustee, enforceable against it in accordance with its terms, subject to applicable bankruptcy, reorganization, moratorium, insolvency and other similar laws affecting creditors’ rights generally and to general principles of equity and the discretion of the court (regardless of whether the enforcement of such remedies is considered in a proceeding in equity or at law); and

(c)           no consent, approval or authorization of, or registration with or notice to, any Delaware or federal banking authority is required for the execution, delivery or performance by the Delaware Trustee of this Trust Agreement.

ARTICLE 13

MISCELLANEOUS

SECTION 13.1.              Notices.

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

(a)           if given to the Trust, in care of the Administrative Trustees at the Trust’s mailing address set forth below (or such other address as the Trust may give notice of to the Property Trustee, the Delaware Trustee and the Holders of the Securities):

c/o  U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota  55402
Attention:  Treasury Department
Facsimile No: (612) 303-1338

(b)           if given to the Delaware Trustee, at the mailing address set forth below (or such other address as the Delaware Trustee may give notice of to the Administrative Trustees, the Property Trustee and the Holders of the Securities):

Wilmington Trust Company
1100 North Market Street
Wilmington, Delaware  19890
Attention: Corporate Trust Administration
Facsimile No.:  (302) 636-4145

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(c)           if given to the Property Trustee, at its Corporate Trust Office (or such other address as the Property Trustee may give notice of to the Administrative Trustees, the Delaware Trustee and the Holders of the Securities).

(d)           if given to the Holder of the Common Securities, at the mailing address of the Sponsor set forth below (or such other address as the Holder of the Common Securities may give notice of to the Property Trustee, the Delaware Trustee and the Trust):

c/o  U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota  55402
Attention:  Treasury Department
Facsimile No.: (612) 303-1338

(e)           if given to any other Holder, at the address set forth on the register 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 13.2.              Governing Law.

This Trust Agreement and the Securities and the rights of the parties hereunder and thereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware.

SECTION 13.3.              Intention of the Parties.

It is the intention of the parties hereto that the Trust be classified for United States federal income tax purposes as a grantor trust.  The provisions of this Trust Agreement shall be interpreted in a manner consistent with such classification.

SECTION 13.4.              Headings.

Headings contained in this Trust Agreement are inserted for convenience of reference only and do not affect the interpretation of this Trust Agreement or any provision hereof.

SECTION 13.5.              Successors and Assigns.

Whenever in this Trust Agreement any of the parties hereto is named or referred to, the successors and assigns of such party shall be deemed to be included, and all covenants and agreements in this Trust Agreement by the Sponsor and the Trustees shall bind and inure to the benefit of their respective successors and assigns, whether so expressed.

59

SECTION 13.6.              Partial Enforceability.

If any provision of this Trust Agreement, or the application of such provision to any Person or circumstance, shall be held invalid, the remainder of this Trust Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby.

SECTION 13.7.              Counterparts.

This Trust Agreement may contain more than one counterpart of the signature page and this Trust Agreement may be executed by the affixing of the signature of each of the Trustees to one of such counterpart signature pages.  All of such counterpart signature pages shall be read as though one, and they shall have the same force and effect as though all of the signers had signed a single signature page.

ARTICLE 14

RESIGNATION

SECTION 14.1.              Resignation of Resigning Administrative Trustee.

The Resigning Administrative Trustee hereby resigns as an administrative trustee of the Trust and such resignation is hereby accepted by the Sponsor.

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

60

IN WITNESS WHEREOF, the undersigned have caused these presents to be executed as of the day and year first above written.

U.S. BANCORP,
as Sponsor, as Common Securities Holder
and as ICON Issuer
By:	/s/ Daryl N. Bible
	Name:		Daryl N. Bible
	Title:		Executive Vice President and Treasurer
WILMINGTON TRUST COMPANY,
as Property Trustee
By:	/s/ Denise M. Geran
	Name:	Denise M. Geran
	Title:	Vice President
WILMINGTON TRUST COMPANY,
as Delaware Trustee
By:	/s/ Denise M. Geran
	Name:	Denise M. Geran
	Title:	Vice President
/s/ Andrew Cecere
ANDREW CECERE,
as Administrative Trustee
/s/ Daryl N. Bible
DARYL N. BIBLE,
as Administrative Trustee
/s/ Lee R. Mitau
LEE R. MITAU,
as Administrative Trustee

IN WITNESS WHEREOF, the undersigned has caused this Trust Agreement to be executed as of the day and year first above written solely with respect to Article 14 hereof.

/s/ David M. Moffett

   DAVID M. MOFFETT,

      as Resigning Administrative Trustee

EXHIBIT A

[IF THE CAPITAL SECURITY IS TO BE A GLOBAL CAPITAL SECURITY, INSERT THE FOLLOWING:  This Capital Security is a Global Security within the meaning of the Trust Agreement hereinafter referred to and is registered in the name of The Depository Trust Company, a New York corporation (the “Depositary”), or a nominee of the Depositary.  This Capital Security is exchangeable for Capital Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Trust Agreement and no transfer of this Capital Security (other than a transfer of this Security as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary) may be registered except in limited circumstances.

Unless this Capital Security Certificate is presented by an authorized representative of the Depositary to the issuer or its agent for registration of transfer, exchange or payment, and any Capital Security Certificate issued is registered in the name of Cede & Co. or such other name as registered by an authorized representative of the Depositary (and any payment hereon is made to Cede & Co. or to such other entity as is requested by an authorized representative of the Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]

Certificate No.	Number of Capital Securities:
CUSIP No. 903305 20 9

Certificate Evidencing 6.30% Trust Preferred Securities
of
USB Capital XII

6.30% Trust Preferred Securities
Fully and Unconditionally
Guaranteed by U.S. Bancorp

USB CAPITAL XII, a statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that                  (the “Holder”) is the registered owner of                  capital securities of the Trust representing undivided beneficial ownership interests in the assets of the Trust designated the “6.30% Trust Preferred Securities” (the “Capital Securities”).  The Capital Securities are transferable on the register of the Trust, in person or by a duly authorized attorney, upon surrender of this certificate duly endorsed and in proper form for transfer as provided in the Trust Agreement (as defined below).  The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Capital Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Trust Agreement of the Trust, dated as of February 1, 2007, as the same may be amended from time to time (the “Trust Agreement”), by and among U.S. BANCORP,

A-1

ANDREW CECERE, DARYL N. BIBLE and LEE R. MITAU, as Administrative Trustees, WILMINGTON TRUST COMPANY, as Property Trustee, and WILMINGTON TRUST COMPANY, as Delaware Trustee, and the holders of undivided beneficial ownership interests in the assets of the Trust.  Capitalized terms used herein but not defined shall have the meaning given them in the Trust Agreement.  The Holder is entitled to the benefits of the Guarantee to the extent described therein.  The Sponsor will provide a copy of the Trust Agreement, the Guarantee and the Indenture to a Holder without charge upon written request to the Sponsor at its principal place of business.

Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder.

By acceptance, the Holder agrees to treat, for United States federal, state and local income tax purposes, the ICONs as indebtedness and the Capital Securities as evidence of undivided beneficial ownership interests in the ICONs.

IN WITNESS WHEREOF, the Trust has executed this certificate this       day of [      ], 2007.

	USB CAPITAL XII
	By:
		Name:
		Title: Administrative Trustee
This is one of the Capital Securities referred to in the within-mentioned Trust Agreement.
	WILMINGTON TRUST COMPANY,
	not in its individual capacity but solely as
	Property Trustee
	By:		U.S. Bank National Association,
			as		Authenticating Agent
				By:
						Name:
						Authorized Officer

A-2

EXHIBIT B

TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET FORTH IN THE TRUST AGREEMENT
REFERRED TO BELOW.

Certificate No.                  Number of Capital Securities:                 

Certificate Evidencing Common Securities
of
USB Capital XII

6.30% Common Securities

USB CAPITAL XII, a statutory trust created under the laws of the State of Delaware (the “Trust”), hereby certifies that U.S. BANCORP (the “Holder”) is the registered owner of common securities of the Trust representing an undivided beneficial ownership interest in the assets of the Trust designated the “6.30% Common Securities” (the “Common Securities”).  The Common Securities are not transferable and any attempted transfer thereof shall be void except as permitted by applicable law and by Section 7.9(b)(ii) of the Trust Agreement (as defined below).  The designation, rights, privileges, restrictions, preferences and other terms and provisions of the Common Securities represented hereby are issued and shall in all respects be subject to the provisions of the Amended and Restated Trust Agreement of the Trust, dated as of February 1, 2007 (as the same may be amended from time to time, the “Trust Agreement”), by and among U.S. Bancorp, as Sponsor, ANDREW CECERE, DARYL N. BIBLE AND LEE R. MITAU, as Administrative Trustees, WILMINGTON TRUST COMPANY, as Property Trustee, and WILMINGTON TRUST COMPANY, as Delaware Trustee, and the holders of undivided beneficial ownership interests in the assets of the Trust.  The Holder is entitled to the benefits of the Guarantee to the extent described therein.  Capitalized terms used herein but not defined shall have the meaning given them in the Trust Agreement.  The Sponsor will provide a copy of the Trust Agreement, the Guarantee and the Indenture to the Holder without charge upon written request to the Sponsor at its principal place of business.

Upon receipt of this certificate, the Holder is bound by the Trust Agreement and is entitled to the benefits thereunder.

By acceptance, the Holder agrees to treat, for United States federal, state and local income tax purposes, the ICONs as indebtedness and the Common Securities as evidence of an undivided indirect beneficial ownership interest in the ICONs.

B-1

IN WITNESS WHEREOF, the Trust has executed this certificate this       day of                         , 2007.

USB CAPITAL XII
By:
	Name:
	Title:	Administrative Trustee

B-2

EX-4.5

Exhibit 4.5

GUARANTEE AGREEMENT

Dated as of February 1, 2007

By and Between

U.S. BANCORP,

as Guarantor

and

WILMINGTON TRUST COMPANY,

as Trustee

CROSS REFERENCE TABLE (1)

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.

ii

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
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

iii

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

iv

GUARANTEE AGREEMENT

This GUARANTEE AGREEMENT (the “Guarantee”), dated as of February 1, 2007, 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 XII, a Delaware statutory trust (the “Trust”).

RECITALS

WHEREAS, pursuant to the Trust Agreement (as defined herein), the Trust may issue up to $575,000,000aggregate liquidation amount of capital securities, having a liquidation amount of $25.00 per security and designated the “6.30% Trust Preferred Securities”of the Trust (the “Capital Securities”) and $1,000,000 aggregate liquidation amount of common securities, having a liquidation amount of $25.00 per security and designated the “6.30% 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;

1

(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.

“Deferral Period” has the meaning specified in the Indenture.

“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

2

connection with the distribution of ICONs to the Holders in exchange for Securities as provided 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 6.30% Income Capital Obligation Notes due 2067 designated the “6.30% Income Capital Obligation Notes due 2067”, held by the Property Trustee as defined in the Trust Agreement.

“Indenture” means the Junior Subordinated Indenture dated as of April 28, 2005, between U.S. Bancorp and Delaware Trust Company, National Association (the “Original Indenture Trustee”), as supplemented by the First Supplemental Indenture dated as of August 3, 2005, between U.S. Bancorp and the Original Indenture Trustee, as further supplemented by the Second Supplemental Indenture dated as of December 29, 2005, between U.S. Bancorp, the Original Indenture Trustee, and Wilmington Trust Company, as successor trustee (the “Successor Indenture Trustee”), as further supplemented by the Third Supplemental Indenture dated as of March 17, 2006, between U.S. Bancorp and the Successor Indenture Trustee, as further supplemented by the Fourth Supplemental Indenture dated as of April 12, 2006, between U.S. Bancorp and the Successor Indenture Trustee, as further supplemented by the Fifth Supplemental Indenture dated as of August 30, 2006, between U.S. Bancorp and the Successor Indenture Trustee and as further supplemented by the Sixth Supplemental Indenture dated as of February 1, 2007, between U.S. Bancorp and the Successor Indenture 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

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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 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 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.

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“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.

ARTICLE 2

TRUST INDENTURE ACT

SECTION 2.1Trust 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 2.2Lists 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 2.3Reports 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 2.4Periodic 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.

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SECTION 2.5Evidence 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 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 2.6Guarantee 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 2.7Guarantee 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 2.8Conflicting 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 2.9Disclosure 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 2.10Guarantee 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;

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(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;

(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

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

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(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 5.2.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);

(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

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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 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.

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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 Deferral 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, purchase or redeem any debt securities of the Guarantor that rank pari passu with or junior in interest to the ICONs, other than pro rata payments of accrued and unpaid interest on the ICONs and any other debt securities of the Guarantor that rank equally with the ICONs except and to the extent the terms of any such debt securities would prohibit the Guarantor from making such pro rata payment or (z) 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 this Guarantee, other than pro rata payments of accrued and unpaid amounts on this Guarantee and any other guarantees by the Guarantor of debt securities of any subsidiary of the Guarantor that rank equally with this Guarantee except and to the extent the terms of any such debt securities would prohibit the Guarantor from making such pro rata payment (other than (a)

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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 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(o) of the Sixth 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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EX-99.1

Exhibit 99.1

Replacement Capital Covenant, dated as of February 1, 2007 (this “Replacement Capital Covenant”), by U.S. Bancorp, a Delaware corporation (together with its successors and assigns, the “Corporation”), in favor of and for the benefit of each Covered Debtholder (as defined below).

Recitals

A.On the date hereof, the Corporation is issuing $501,000,000 aggregate principal amount of its 6.30% Income Capital Obligation Notes SM (ICONs) due February 15, 2067 (the “ICONs”) to USB Capital XII (the “Trust”).

B.On the date hereof, the Trust is issuing $500,000,000 aggregate liquidation amount of its 6.30% Trust Preferred Securities (the “Trust Preferred Securities” and together with the ICONs, the “Securities”) to investors.

C.This Replacement Capital Covenant is the “Replacement Capital Covenant” referred to in the Prospectus Supplement, dated January 25, 2007, relating to the Trust Preferred Securities (together with the accompanying Prospectus, dated August 3, 2005, the “Prospectus”).

D.The Corporation, in entering into and disclosing the content of this Replacement Capital Covenant in the manner provided below, is doing so with the intent that the covenants provided for in this Replacement Capital Covenant be enforceable by each Covered Debtholder and the Corporation be estopped from disregarding the covenants in this Replacement Capital Covenant, in each case to the fullest extent permitted by applicable law.

E. The Corporation acknowledges that reliance by each Covered Debtholder upon the covenants in this Replacement Capital Covenant is reasonable and foreseeable by the Corporation and that, were the Corporation to disregard its covenants in this Replacement Capital Covenant, each Covered Debtholder would have sustained an injury as a result of its reliance on such covenants.

NOW, THEREFORE, the Corporation hereby covenants and agrees as follows in favor of and for the benefit of each Covered Debtholder.

SECTION 1.Definitions.  Capitalized terms used in this Replacement Capital Covenant (including the Recitals) have the meanings set forth in Schedule I hereto.

SECTION 2.Limitations on Repayment, Redemption and Purchase of Securities.  The Corporation hereby promises and covenants to and for the benefit of each Covered Debtholder that neither the Corporation nor any Subsidiary of the Corporation (including the Trust) shall repay, redeem or purchase any of the Securities prior to the Termination Date except to the extent that (a) the Corporation has obtained the prior approval of the Federal Reserve if such approval is then required under the Federal Reserve’s capital guidelines applicable to bank holding companies and (b) the applicable repayment, redemption or purchase price does not exceed the sum of the following amounts:

(i)The Applicable Percentage of the aggregate amount of net cash proceeds received by the Corporation and its Subsidiaries since the most recent Measurement Date

(without double counting proceeds received in any prior Measurement Period) from the issuance and sale of Common Stock and rights to acquire Common Stock to Persons other than the Corporation and its Subsidiaries; plus

(ii) The Applicable Percentage of the aggregate amount of net cash proceeds received by the Corporation and its Subsidiaries since the most recent Measurement Date (without double counting proceeds received in any prior Measurement Period) from the sale of Mandatorily Convertible Preferred Stock, Debt Exchangeable for Equity or Qualifying Non-Cumulative Perpetual Preferred Stock to Persons other than the Corporation and its Subsidiaries; plus

(iii)The Applicable Percentage of the aggregate amount of net cash proceeds received by Subsidiaries of the Corporation since the most recent Measurement Date (without double counting proceeds received in any prior Measurement Period) from the sale of REIT Preferred Securities to Persons other than the Corporation and its Subsidiaries; plus

(iv) The Applicable Percentage of the aggregate amount of net cash proceeds received by the Corporation and its Subsidiaries since the most recent Measurement Date (without double counting proceeds received in any prior Measurement Period) from the sale of Qualifying Capital Securities to Persons other than the Corporation and its Subsidiaries.

SECTION 3.Covered Debt.

(a)  The Corporation represents and warrants that the Initial Covered Debt is Eligible Debt.

(b)On or during the 30-day period immediately preceding any Redesignation Date with respect to the Covered Debt then in effect, the Corporation shall identify the series of Eligible Debt that will become the Covered Debt on and after such Redesignation Date in accordance with the following procedures:

(i)the Corporation shall identify each series of its then outstanding long-term indebtedness for money borrowed that is Eligible Debt;

(ii)if only one series of the Corporation’s then outstanding long-term indebtedness for money borrowed is Eligible Debt, such series shall become the Covered Debt commencing on the related Redesignation Date;

(iii)if the Corporation has more than one outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, then the Corporation shall identify the series that has the latest occurring final maturity date as of the date the Corporation is applying the procedures in this Section 3(b) and such series shall become the Covered Debt on the related Redesignation Date;

(iv)if the Corporation has no outstanding series of long-term indebtedness for money borrowed that is Eligible Debt but U.S. Bank is a

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Subsidiary of the Corporation and U.S. Bank has only one outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, such series shall become the Covered Debt commencing on the related Redesignation Date;

(v)if the Corporation has no outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, but U.S. Bank is a Subsidiary of the Corporation and U.S. Bank has more than one outstanding series of long-term indebtedness for money borrowed that is Eligible Debt, then the Corporation shall identify the series that has the latest occurring final maturity date as of the date the Corporation is applying the procedures in this Section 3(b) and such series shall become the Covered Debt on the related Redesignation Date;

(vi)the series of outstanding long-term indebtedness for money borrowed that is determined to be Covered Debt pursuant to this Section 3(b) shall be the Covered Debt for purposes of this Replacement Capital Covenant for the period commencing on the related Redesignation Date and continuing to but not including the Redesignation Date as of which a new series of outstanding long-term indebtedness is next determined to be the Covered Debt pursuant to the procedures set forth in this Section 3(b); and

(vii)in connection with such identification of a new series of Covered Debt, the Corporation shall give the notice provided for in Section 3(d) within the time frame provided for in such section.

(c)Notwithstanding any other provisions of this Replacement Capital Covenant, if on any Redesignation Date the Corporation has then outstanding one or more series of Eligible Subordinated Debt, a series of Eligible Subordinated Debt shall be identified as Covered Debt in accordance with Section 3(b) and no Eligible Senior Debt shall then be Covered Debt.

(d)Notice.  In order to give effect to the intent of the Corporation described in Recital D, the Corporation covenants that

(i)simultaneously with the execution of this Replacement Capital Covenant or as soon as practicable after the date hereof, the Corporation shall (A) give notice to the Holders of the Initial Covered Debt, in the manner provided in the indenture relating to the Initial Covered Debt, of this Replacement Capital Covenant and the rights granted to such Holders hereunder and (B) file a copy of this Replacement Capital Covenant with the Commission as an exhibit to a current report on Form 8-K under the Securities Exchange Act;

(ii)so long as the Corporation is a reporting company under the Securities Exchange Act, the Corporation shall include in each annual report filed with the Commission on Form 10-K under the Securities Exchange Act a description of the covenant set forth in Section 2 and identify the series of long-term indebtedness for borrowed money that is Covered Debt as of the date such Form 10-K is filed with the Commission;

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(iii)if a series of the Corporation’s or U.S. Bank’s long-term indebtedness for money borrowed (A) becomes Covered Debt or (B) ceases to be Covered Debt, the Corporation shall give notice of such occurrence within 30 days to the holders of such long-term indebtedness for money borrowed in the manner provided for in the indenture, fiscal agency agreement or other instrument under which such long-term indebtedness for money borrowed was issued and report such change in a current report on Form 8-K including or incorporating by reference this Replacement Capital Covenant, and in the Corporation’s next quarterly report on Form 10-Q or annual report on Form 10-K, as applicable;

(iv)if, and only if, the Corporation ceases to be a reporting company under the Securities Exchange Act, the Corporation shall post on its website the information otherwise required to be included in Securities Exchange Act filings pursuant to clauses (ii) and (iii) of this Section 3(d); and

(v)promptly upon request by any Holder of Covered Debt, the Corporation shall provide such Holder with a conformed copy of this Replacement Capital Covenant.

SECTION 4.Termination, Amendment and Waiver.

(a)The obligations of the Corporation pursuant to this Replacement Capital Covenant shall remain in full force and effect until the earlier date (the “Termination Date”) to occur of (i) the date, if any, on which the Holders of a majority by principal amount of the then-effective series of Covered Debt consent or agree in writing to the termination of this Replacement Capital Covenant and the obligations of the Corporation hereunder, (ii) the date on which neither the Corporation nor U.S. Bank has any series of outstanding Eligible Senior Debt or Eligible Subordinated Debt (in each case without giving effect to the rating requirement in clause (ii) of the definition of each such term), and (iii) February 15, 2057 or, if earlier, when all of the ICONs have been paid, redeemed or purchased in full.  From and after the Termination Date, the obligations of the Corporation pursuant to this Replacement Capital Covenant shall be of no further force or effect.

(b)This Replacement Capital Covenant may be amended or supplemented from time to time by a written instrument signed by the Corporation with the consent of the Holders of a majority by principal amount of the then-effective series of Covered Debt, provided that this Replacement Capital Covenant may be amended or supplemented from time to time by a written instrument signed only by the Corporation (and without the consent of the Holders of the then-effective series of Covered Debt) if (i) the effect of such amendment or supplement is solely to impose additional restrictions on the ability of the Corporation or any Subsidiary of the Corporation to repay, redeem or purchase any Securities in any circumstance, (ii) such amendment or supplement is not adverse to the Holders of the then-effective series of Covered Debt and an officer of the Corporation has delivered, or caused to be delivered, to the Holders of the then-effective series of Covered Debt in the manner provided for in the indenture, fiscal agency agreement or other instrument with respect to such Covered Debt a written certificate

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stating that, in his or her determination, such amendment or supplement is not adverse to the Holders of the then-effective series of Covered Debt, or (iii) such amendment eliminates Common Stock or Mandatorily Convertible Preferred Stock as a security or securities covered by clause (i) or (ii) of Section 2(b) and the Corporation has been advised in writing by a nationally recognized independent accounting firm that there is more than an insubstantial risk that the failure to do so would result in a reduction in the Corporation’s earnings per share as calculated for financial reporting purposes.

(c)For purposes of Sections 4(a) and 4(b), the Holders whose consent or agreement is required to terminate, amend or supplement the obligations of the Corporation under this Replacement Capital Covenant shall be the Holders of the then-effective series of Covered Debt as of a record date established by the Corporation that is not more than 30 days prior to the date on which the Corporation proposes that such termination, amendment or supplement becomes effective.

SECTION 5.  Miscellaneous.

(a)  This Replacement Capital Covenant shall be governed by and construed in accordance with the laws of the State of New York.

(b)This Replacement Capital Covenant shall be binding upon the Corporation and its successors and assigns and shall inure to the benefit of the Covered Debtholders as they exist from time-to-time (it being understood and agreed by the Corporation that any Person who is a Covered Debtholder at the time such Person initiates a claim or proceeding to enforce its rights under this Replacement Capital Covenant after the Corporation has violated its covenants in Section 2 and before the series of long-term indebtedness for money borrowed held by such Person is no longer Covered Debt, such Person’s rights under this Replacement Capital Covenant shall not terminate prior to the Termination Date solely by reason of such series of long-term indebtedness for money borrowed no longer being Covered Debt).  Except as specifically provided herein, this Replacement Capital Covenant shall have no other beneficiaries and no other Persons are entitled to rely on this Replacement Capital Covenant.

(c)All demands, notices, requests and other communications to the Corporation under this Replacement Capital Covenant shall be deemed to have been duly given and made if in writing and (i) if served by personal delivery upon the Corporation, on the day so delivered (or, if such day is not a Business Day, the next succeeding Business Day), (ii) if delivered by registered post or certified mail, return receipt requested, or sent to the Corporation by a national or international courier service, on the date of receipt by the Corporation (or, if such date of receipt is not a Business Day, the next succeeding Business Day), or (iii) if sent by telecopier, on the day telecopied, or if not a Business Day, the next succeeding Business Day, provided that the telecopy is promptly confirmed by telephone confirmation thereof, and in each case to the Corporation at the address set forth below, or at such other address as the Corporation may thereafter notify the Covered Debtholders or post on its website as the address for notices under this Replacement Capital Covenant:

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U.S. Bancorp
800 Nicollet Mall
Minneapolis, Minnesota  55402
Attention:  Treasury Department
Facsimile No: (612) 303-1338

{remainder of page left intentionally blank; signature page follows}

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IN WITNESS WHEREOF, the Corporation has caused this Replacement Capital Covenant to be executed by its duly authorized officer, as of the day and year first above written.

U.S. Bancorp
By:	/s/ Daryl N. Bible
	Name: Daryl N. Bible
	Title:   Executive Vice President and Treasurer

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SCHEDULE I

DEFINITIONS

“Alternative Payment Mechanism” means, with respect to any securities or combination of securities (together in this definition, “such securities”), provisions in the related transaction documents requiring the Corporation to issue (or use commercially reasonable efforts to issue) one or more types of APM Qualifying Securities raising eligible proceeds at least equal to the deferred Distributions on such securities and apply the proceeds to pay unpaid Distributions on such securities, commencing on the earlier of (x) the first Distribution Date after commencement of a deferral period on which the Corporation pays current Distributions on such securities and (y) the fifth anniversary of the commencement of such deferral period, and that

(a)provide that “eligible proceeds” include, for purposes of such Alternative Payment Mechanism, the net proceeds (after underwriters’ or placement agents’ fees, commissions or discounts and other expenses relating to the issuance or sale of the relevant securities, where applicable, and including the fair market value of property received by the Corporation or any of its Subsidiaries as consideration for such securities) that the Corporation has received during the 180 days prior to the related Distribution Date from the issuance of APM Qualifying Securities, up to the Preferred Cap (as defined in paragraph (f), below) in the case of APM Qualifying Securities that are Qualifying Non-Cumulative Perpetual Preferred Stock;

(b)permit the Corporation to pay current Distributions on any Distribution Date out of any source of funds but (x) require the Corporation to pay deferred Distributions only out of eligible proceeds and (y) prohibit the Corporation from paying deferred Distributions out of any source of funds other than eligible proceeds, unless (if the Corporation elects to so provide in the terms of such securities) the Primary Federal Bank Regulatory Agency directs otherwise;

(c)if deferral of Distributions continues for more than one year, require the Corporation not to redeem or repurchase any securities of the Corporation that on a bankruptcy or liquidation of the Corporation rank pari passu with or junior to such securities until at least one year after all deferred Distributions have been paid;

(d)notwithstanding the foregoing provision, if the Primary Federal Bank Regulatory Agency disapproves the issuer’s sale of APM Qualifying Securities, may (if the Corporation elects to so provide in the term of such securities) permit the Corporation to pay deferred Distributions from any source without a breach of its obligations under the transaction documents;

(e)if the Primary Federal Bank Regulatory Agency does not disapprove the Corporation’s issuance and sale of APM Qualifying Securities but disapproves the use of the proceeds thereof to pay deferred Distributions, may (if the Corporation elects to so provide in the terms of such securities) permit the Corporation to use such proceeds for

I-1

other purposes and to continue to defer Distributions without a breach of its obligations under the transaction documents; and

(f)with respect to “caps” on the Corporation’s obligation or right to issue (or use commercially reasonable efforts to issue) APM Qualifying Securities to settle deferred Distributions:

(i)limit the obligation of the Corporation to issue Common Stock or rights to acquire Common Stock pursuant to the Alternative Payment Mechanism (including at any point in time from all prior issuances thereof pursuant to the Alternative Payment Mechanism for the relevant deferral period) to settle deferred Distributions attributable to the first five years of any deferral period to an amount not exceeding 2% of the product of the average of the current stock market prices of the Common Stock on the ten consecutive trading days ending on the fourth trading day immediately preceding the date of issuance multiplied by the total number of issued and outstanding shares of Common Stock as of the date of the Corporation’s most recent publicly available consolidated financial statements (the “Common Cap”), provided (and it being understood) that (x) once the Corporation reaches the Common Cap, until the Common Cap ceases to apply the Corporation will not be required to issue more Common Stock or rights to acquire Common Stock under the Alternative Payment Mechanism with respect to deferred Distributions attributable to the first five years of a deferral period even if the amount referred to in this subclause (i) subsequently increases because of a subsequent increase in the current market price of Common Stock or the number of outstanding shares of Common Stock, and (y) the Common Cap shall cease to apply to such deferral period by a date (as specified in the related transaction documents) which shall be not later than the ninth anniversary of the commencement of such deferral period; and

(ii)limit the obligation or right of the Corporation to issue Qualifying Non-Cumulative Perpetual Preferred Stock pursuant to the Alternative Payment Mechanism (including at any point in time from all prior issuances thereof pursuant to such Alternative Payment Mechanism) to settle deferred Distributions to an amount not exceeding 25% of the initial principal or stated amount of the securities that are the subject of the related Alternative Payment Mechanism (the “Preferred Cap”);

provided (and it being understood) that:

(A)the Corporation shall not be obligated to issue (or use commercially reasonable efforts to issue) APM Qualifying Securities for so long as a Market Disruption Event has occurred and is continuing;

(B)if, due to a Market Disruption Event or otherwise, the Corporation is able to raise and apply some, but not all, of the eligible proceeds necessary to pay all deferred Distributions on any Distribution Date, the Corporation will apply any available eligible proceeds to pay

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accrued and unpaid Distributions on the applicable Distribution Date in chronological order subject to the Common Cap and Preferred Cap, as applicable; and

(C)if the Corporation has outstanding more than one class or series of securities under which it is obligated to sell a type of APM Qualifying Securities and apply some part of the proceeds to the payment of deferred Distributions, then on any date and for any period the amount of net proceeds received by the Corporation from those sales and available for payment of deferred Distributions on such securities shall be applied to such securities on a pro rata basis in proportion to the total amounts that are due on such securities, or on such other basis as the Primary Federal Bank Regulatory Agency may approve.

“APM Qualifying Securities” means, with respect to an Alternative Payment Mechanism, one or more of the following (as designated in the transaction documents for the Qualifying Capital Securities that include an Alternative Payment Mechanism or Debt Exchangeable for Equity):

(a)Common Stock;

(b)rights to acquire Common Stock; or

(c)Qualifying Non-Cumulative Perpetual Preferred Stock;

provided (and it being understood) that if the APM Qualifying Securities for any Alternative Payment Mechanism include both Common Stock and rights to acquire Common Stock, such Alternative Payment Mechanism may permit, but need not require, the Corporation to issue rights to acquire Common Stock.

“Applicable Percentage” means

(a)in the case of any Common Stock or rights to acquire Common Stock, (i) 133.33% with respect to any repayment, redemption or purchase prior to February 15, 2017, and (ii) 200% with respect to any repayment, redemption or purchase on or after February 15, 2017;

(b)in the case of any Mandatorily Convertible Preferred Stock, Debt Exchangeable for Equity, or Qualifying Non-Cumulative Perpetual Preferred Stock, 100%;

(c) in the case of any Qualifying Capital Securities described in clause (a) of the definition of that term, 100%

(d) in the case of any Qualifying Capital Securities described in clause (b) of the definition of that term, 100%; and

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(e) in the case of any Qualifying Capital Securities described in clause (c)  of the definition of that term, 100%.

“Business Day” means each day other than (i) a Saturday or Sunday or (ii) a day on which banking institutions in the City of New York are authorized or obligated by law, regulation or executive order to close.

“Commission” means the United States Securities and Exchange Commission.

“Common Stock” means common stock of the Corporation (including treasury shares of common stock and shares of common stock issued pursuant to the Corporation’s dividend reinvestment plan and employee benefit plans).

“Corporation” has the meaning specified in the introduction to this instrument.

“Covered Debt” means (i) at the date of this Replacement Capital Covenant and continuing to but not including the first Redesignation Date, the Initial Covered Debt and (ii) thereafter, commencing with each Redesignation Date and continuing to but not including the next succeeding Redesignation Date, the Eligible Debt identified pursuant to Section 3(b) as the Covered Debt for such period.

“Covered Debtholder” means each Person (whether a Holder or a beneficial owner holding through a participant in a clearing agency) that buys, holds or sells long-term indebtedness for money borrowed of the Corporation or U.S. Bank during the period that such long-term indebtedness for money borrowed is Covered Debt; provided that a Person who has sold or disposed of all its right, title and interest in Covered Debt shall cease to be a Covered Debtholder at the time of such sale or disposition if, while such Person was an owner of Covered Debt, the Corporation has not breached or repudiated, or threatened to breach or repudiate, its obligations hereunder; and provided further that if the Corporation has breached or repudiated, or threatened to breach or repudiate, its obligation hereunder while such Person was an owner of Covered Debt, such Person shall continue to be a Covered Debtholder until the later of (i) one year after any such sale or other disposition or (ii) the termination of any legal proceeding brought by such Person before the date in clause (i) to enforce the obligations of the Corporation hereunder.

“Debt Exchangeable For Equity” means a security or combination of securities (together in this definition, “such securities”) that:

(a)gives the holder a beneficial interest in (i) subordinated debt securities of the Corporation that include a provision requiring the Corporation to issue (or use commercially reasonable efforts to issue) one or more types of APM Qualifying Securities raising proceeds at least equal to the deferred Distributions on such subordinated debt securities commencing not later than two years after initial issuance of such securities and that are the most junior subordinated debt of the Corporation (or rank pari passu with the most junior subordinated debt of the Corporation) and (ii) a fractional interest in a stock purchase contract for a share of Qualifying Non-Cumulative Perpetual Preferred Stock (in this definition, “preferred stock” of the Corporation);

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(b)provides that the investors directly or indirectly grant to the Corporation a security interest in such subordinated debt securities and their proceeds (including any substitute collateral permitted under the transaction documents) to secure the investors’ direct or indirect obligation to purchase preferred stock of the Corporation pursuant to such stock purchase contracts;

(c)includes a remarketing feature pursuant to which the subordinated debt of the Corporation is remarketed to new investors commencing not later than the first Distribution Date that is five years after the date of issuance of the security or earlier in the event of an early settlement event based on (i) the capital ratios of the Corporation, (ii) the capital ratios of the Corporation as anticipated by the Primary Federal Bank Regulatory Agency, (iii) the dissolution of the issuer of such Debt Exchangeable for Equity, or (iv) one or more financial tests set forth in the terms of such securities or the forward purchase contract or similar agreement;

(d)provides for the proceeds raised in the remarketing to be used to purchase preferred stock of the Corporation under the stock purchase contracts and, if there has not been a successful remarketing by the first Distribution Date that is six years after the date of issuance of such securities, provides that the stock purchase contracts will be settled by the Corporation foreclosing on its subordinated debt securities or other collateral directly or indirectly pledged by investors in the Debt Exchangeable for Equity;

(e)includes a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant that will apply to such securities and to the preferred stock of the Corporation, but will not include Debt Exchangeable for Equity in the definition of “Qualifying Capital Securities”; and

(f)after the issuance of such preferred stock of the Corporation, provides the holder of the security with a beneficial interest in such preferred stock of the Corporation.

“Depository Institution Subsidiary” means any Subsidiary of the Corporation that is a depository institution within the meaning of 12 C.F.R. § 204.2(m) and includes U.S. Bank.

“Distribution Date” means, as to any securities or combination of securities, the dates on which periodic Distributions on such securities are scheduled to be made.

“Distribution Period” means, as to any securities or combination of securities, each period from and including the later of the issue date and a Distribution Date for such securities to but not including the next succeeding Distribution Date for such securities.

“Distributions” means, as to a security or combination of securities, dividends, interest payments or other income distributions to the holders thereof that are not Subsidiaries of the Corporation.  For the avoidance of doubt, if the terms of any security or combination of securities provide for the accrual of declared but unpaid, or deferred,

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Distributions, such accrued amounts will be considered to be included within the term “Distributions”.

“Eligible Debt” means, at any time, Eligible Subordinated Debt or, if no Eligible Subordinated Debt is then outstanding, Eligible Senior Debt.

“Eligible Senior Debt” means, at any time in respect of any issuer, each series of outstanding long-term indebtedness for money borrowed of such issuer that (i) upon a bankruptcy, liquidation, dissolution or winding up of the issuer, ranks most senior among the issuer’s then outstanding classes of indebtedness for money borrowed, (ii) is then assigned a rating by at least one NRSRO (provided that this clause shall apply on a Redesignation Date only if on such date the issuer has outstanding senior long-term indebtedness for money borrowed that satisfies the requirements of clauses (i), (iii) and (iv) that is then assigned a rating by at least one NRSRO), (iii) has an outstanding aggregate principal amount of not less than $100,000,000, (iv) was issued through or with the assistance of a commercial or investment banking firm or firms acting as underwriters, initial purchasers or placement or distribution agents, and (v) if issued by U.S. Bank, is fully and unconditionally guaranteed by the Corporation on (A) a subordinated basis or (B) if on the relevant Redesignation Date there is no outstanding debt of U.S. Bank meeting the other requirements set forth above and guaranteed by the Corporation on a subordinated basis but there is outstanding debt of U.S. Bank meeting such requirements and guaranteed on a senior basis, a senior basis.  For purposes of this definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that has (or, if such indebtedness is held by a trust or other intermediate entity established directly or indirectly by the issuer, the securities of such intermediate entity have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term indebtedness for money borrowed that is separate from each other series of such indebtedness.

“Eligible Subordinated Debt” means, at any time in respect of any issuer, each series of the issuer’s then outstanding long-term indebtedness for money borrowed that (i) upon a bankruptcy, liquidation, dissolution or winding up of the issuer, ranks subordinate to the issuer’s then outstanding series of indebtedness for money borrowed that ranks most senior, (ii) is then assigned a rating by at least one NRSRO (provided that this clause (ii) shall apply on a Redesignation Date only if on such date the issuer has outstanding subordinated long-term indebtedness for money borrowed that satisfies the requirements in clauses (i), (iii) and (iv) that is then assigned a rating by at least one NRSRO), (iii) has an outstanding aggregate principal amount of not less than $100,000,000, and (iv) was issued through or with the assistance of a commercial or investment banking firm or firms acting as underwriters, initial purchasers or placement or distribution agents, and (v) if issued by U.S. Bank, is fully and unconditionally guaranteed by the Corporation on (A) a subordinated basis or (B) if on the relevant Redesignation Date there is no outstanding debt of U.S. Bank meeting the other requirements set forth above and guaranteed by the Corporation on a subordinated basis but there is outstanding debt of U.S. Bank meeting such requirements and guaranteed on a senior basis, a senior basis.  For purposes of this definition as applied to securities with a CUSIP number, each issuance of long-term indebtedness for money borrowed that has

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(or, if such indebtedness is held by a trust or other intermediate entity established directly or indirectly by the issuer, the securities of such intermediate entity have) a separate CUSIP number shall be deemed to be a series of the issuer’s long-term indebtedness for money borrowed that is separate from each other series of such indebtedness.

“Federal Reserve” means the Board of Governors of the Federal Reserve System, and any regional Federal Reserve Bank in which the Corporation owns stock.

“Holder” means, as to the Covered Debt then in effect, each holder of such Covered Debt as reflected on the securities register maintained by or on behalf of the issuer with respect to such Covered Debt.

“Initial Covered Debt” means 5.875% junior subordinated debentures due 2035, underlying the 5.875% trust preferred securities of USB Capital VII (CUSIP No. 903301208).

“Intent-Based Replacement Disclosure” means, as to any security or combination of securities that the issuer has publicly stated its intention, either in the prospectus or other offering document under which such securities were initially offered for sale or in filings with the Commission made by the issuer under the Securities Exchange Act prior to or contemporaneously with the issuance of such securities, that the issuer will repay, redeem or purchase such securities only with the proceeds of replacement capital securities that have terms and provisions at the time of repayment, redemption or purchase that are as or more equity-like than the securities then being repaid, redeemed or purchased, raised since the most recent Measurement Date.  Notwithstanding the use of the term “Intent-Based Replacement Disclosure” in the definitions of “Qualifying Capital Securities” and “Qualifying Non-Cumulative Perpetual Preferred Stock”, the requirement in each such definition that a particular security or the related transaction documents include Intent-Based Replacement Disclosure shall be disregarded and given no force or effect if and for so long as the Corporation is a bank holding company within the meaning of the Bank Holding Company Act of 1956, as amended.

“Mandatorily Convertible Preferred Stock” means cumulative or non-cumulative preferred stock with (i) no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, and (ii) a requirement that the preferred stock convert into Common Stock of the Corporation within three years from the date of its issuance at a conversion ratio within a range established at the time of issuance of the preferred stock.

“Mandatory Trigger Provision” means, as to any security or combination of securities (together, in this definition, “securities”), provisions in the terms thereof or of the related transaction agreements that:

(a) require, or at its option in the case of non-cumulative perpetual preferred stock permit, the issuer of such securities to make payment of Distributions on such securities only pursuant to the issue and sale of APM Qualifying Securities, within two years of a failure to satisfy one or more financial tests set forth in the terms of such securities or

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related transaction agreements, in amount such that the net proceeds of such sale are at least equal to the amount of unpaid Distributions on such securities (including without limitation all deferred and accumulated amounts) and in either case require the application of the net proceeds of such sale to pay such unpaid Distributions, providedthat (i) the amount of the net proceeds of Qualifying Non-Cumulative Perpetual Preferred Stock which the issuer may apply to pay such Distributions pursuant to such provision may not exceed 25% of the initial liquidation or principal amount of such securities, and (ii) if the Mandatory Trigger Provision does not require the issuance and sale of Common Stock and/or rights to acquire Common Stock and the application of the net proceeds thereof to the payment of such Distributions within one year of such failure, then the amount of the net proceeds of the issuance and sale of Common Stock and/or rights to acquire Common Stock which the issuer may apply to pay such Distributions pursuant to such provision may not exceed 2% of the Corporation’s market capitalization;

(b) if the APM Qualifying Securities are Common Stock or rights to acquire Common Stock, prohibit the issuer from repurchasing any Common Stock prior to the date six months after the issuer applies the net proceeds of the sales described in clause (A) to pay such unpaid Distributions;

(c) if the APM Qualifying Securities are warrants to acquire Common Stock, prohibit the issuer from issuing such warrants and using the proceeds therefrom to pay any unpaid Distributions if the total number of shares of the issuer’s Common Stock underlying all warrants issued as APM Qualifying Securities during the life of the security would be in excess of 15% of the total number of the issuer’s issued and outstanding shares of Common Stock as of the date of any proposed issuance of warrants as APM Qualifying Securities; and

(d) upon any liquidation, dissolution, winding up, reorganization or in connection with any insolvency, receivership or proceeding under any bankruptcy law with respect to the issuer, limit the claim of the holders of such securities (other than Qualifying Non-Cumulative Perpetual Preferred Stock) for Distributions that accumulate during a period in which the issuer fails to satisfy one or more financial tests set forth in the terms of such securities or related transaction agreements to (x) 25% of the principal amount of such securities then outstanding in the case of securities not permitting the issuance and sale pursuant to the provisions described in clause (A) above of securities other than Common Stock or rights to acquire Common Stock or (y) two years of accumulated and unpaid Distributions (including compounded amounts thereon) in all other cases. No remedy other than Permitted Remedies will arise by the terms of such securities or related transaction agreements in favor of the holders of such securities as a result of the issuer’s failure to pay Distributions because of the Mandatory Trigger Provision or as a result of the issuer’s exercise of its right under an Optional Deferral Provision until Distributions have been deferred for one or more Distribution Periods that total together at least ten years.  It is acknowledged that as of the date hereof the Board of Governors of the Federal Reserve System has not approved a Mandatory Trigger Provision in securities issued by a bank holding company and treated as Tier 1 capital for the bank holding company.

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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, futures or options exchange or over-the-counter market on which the Common Stock, rights to acquire Common Stock and/or the Corporation’s preferred stock is then listed or traded shall have been suspended or the settlement of such trading activity generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or market by the Commission, by the relevant exchange or by another regulatory body or governmental authority having jurisdiction, and the establishment of such minimum prices materially disrupts or otherwise has a material adverse effect on trading in, or the issuance and sale of, Common Stock, rights to acquire Common Stock and/or the Corporation’s preferred stock;

(b)the Corporation would be required to obtain the consent or approval of its shareholders or a regulatory body (including, without limitation, any securities exchange) or governmental authority to issue or sell APM Qualifying Securities and the Corporation fails to obtain that consent or approval notwithstanding the Corporation’s commercially reasonable efforts to obtain that consent or approval or the Primary Federal Bank Regulatory Agency instructs the Corporation not to (i) sell or offer for sale APM Qualifying Securities at such time, or (ii) use the proceeds of the sale of such APM Qualifying Securities to pay deferred Distributions at such time;

(c)a banking moratorium shall have been declared by the federal or state authorities of the United States such that market trading in the Common Stock or rights to acquire Common Stock and/or the Corporation’s preferred stock has been materially disrupted;

(d)a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States such that market trading in the Common Stock, rights to acquire Common Stock and/or the Corporation’s preferred stock has been materially disrupted;

(e)the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States, there shall have been a declaration of a national emergency or war by the United States or there shall have occurred any other national or international calamity or crisis such that market trading in the Common Stock, rights to acquire Common Stock and/or the Corporation’s preferred stock has been materially disrupted;

(f)there shall have occurred such a material adverse change in general domestic or international economic, political or financial conditions, including without limitation as a result of terrorist activities, such that market trading in the Common Stock, rights to acquire Common and/or the Corporation’s preferred stock has been materially disrupted;

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(g)an event occurs and is continuing as a result of which the offering document for such offer and sale of APM Qualifying Securities would, in the Corporation’s reasonable judgment, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and either (a) the disclosure of that event at such time, in the Corporation’s reasonable judgment, would have a material adverse effect on the Corporation’s business or (b) the disclosure relates to a previously undisclosed proposed or pending material business transaction and the Corporation has a bona fide reason for keeping the same confidential or its disclosure would impede the Corporation’s ability to consummate such transaction, provided that no single suspension period contemplated by this paragraph (g) shall exceed 90 consecutive days and multiple suspension periods contemplated by this paragraph (g) shall not exceed an aggregate of 180 days in any 360-day period; or

(h)the Corporation reasonably believes that the offering document for the offer and sale of APM Qualifying Securities would not be in compliance with a rule or regulation of the Commission and the Corporation is unable to comply with such rule or regulation or such compliance is unduly burdensome, provided that no single suspension period contemplated by this paragraph (h) may exceed 90 consecutive days and multiple suspension periods contemplated by this paragraph (h) may not exceed an aggregate of 180 days in any 360-day period.

The definition of “Market Disruption Event” as used in any securities or combination of securities that constitute Qualifying Capital Securities may include less than all of the paragraphs outlined above, as determined by the Corporation at the time of issuance of such securities, and in the case of clauses (a), (b), (c) and (d), as applicable to a circumstance where the Corporation would otherwise endeavor to issue preferred stock, shall be limited to circumstances affecting markets where the Corporation’s preferred stock trades or where a listing for its trading is being sought.

“Measurement Date” means, with respect to any repayment, redemption or purchase of securities, the date six months prior to the delivery of notice of such repayment, redemption or the date of such purchase.

“Measurement Period” means the period from a Measurement Date to the related notice date or purchase date.  Measurement Periods cannot run concurrently.

“No Payment Provision” means a provision or provisions in the transaction documents for securities (referred to in this definition as “such securities”) that include the following:

(a)an Alternative Payment Mechanism; and

(b)an Optional Deferral Provision modified and supplemented from the general definition of that term to provide that:

(i)the issuer of such securities may, in its sole discretion, or (if the issuer elects to so provide in the terms of such securities) shall in response to a directive or

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order from the Primary Federal Bank Regulatory Agency, defer in whole or in part payment of Distributions on such securities for one or more consecutive Distribution Periods of up to five years or, if a Market Disruption Event has occurred and is continuing, up to a total of ten years, without any remedy other than Permitted Remedies and the obligations (and limitations on obligations) described in the definition of “Alternative Payment Mechanism” applying; and

(ii)if the issuer becomes subject to a bankruptcy, insolvency, receivership or similar proceeding prior to the redemption or repayment of such securities, the holders of such securities will have no claim to any deferred and unpaid Distributions exceeding (x) if the APM Qualifying Securities include only Common Stock or rights to acquire Common Stock and do not include Qualifying Non-Cumulative Perpetual Preferred Stock, 25% of the principal or stated amount of such securities then outstanding and (y) if the APM Qualifying Securities include Qualifying Non-Cumulative Perpetual Preferred Stock, two years of Distributions on such securities; provided, however, that if the APM Qualifying Securities include Qualifying Non-Cumulative Perpetual Preferred Stock and, accordingly, clause (y) applies, holders of such securities may have an additional preferred equity claim in respect of deferred and unpaid distributions which are in excess of two years of Distributions that is senior to the Corporation’s common stock and is or would be pari passu with any Qualifying Non-Cumulative Preferred Stock up to the amount equal to their pro rata shares of any unused portion of the Preferred Cap (as defined in the definition of “Alternative Payment Mechanism”).

“Non-Cumulative” means, with respect to any securities, that the issuer thereof may elect not to make any number of periodic Distributions or interest payments without any remedy arising under the terms of the securities or related agreements in favor of the holders, other than one or more Permitted Remedies.

“NRSRO” means a nationally recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Securities Exchange Act.

“Optional Deferral Provision” means, as to any security or combination of securities, a provision in the terms thereof or of the related transaction agreements to the effect of either (a) or (b) below:

(a)(i) the issuer of such securities may, in its sole discretion, or in response to a directive order from a Primary Federal Bank Regulatory Agency, defer or skip in whole or in part payment of Distributions on such securities for one or more Distribution Periods (whether or not consecutive) of up to five years or, if a Market Disruption Event is continuing, up to a total of  ten years, without any remedy other than Permitted Remedies and (ii) if the issuer of such securities has exhausted its right to defer Distributions and no Market Disruption Event is continuing, the issuer will be obligated to issue and sell Common Stock and/or Qualifying Non-Cumulative Perpetual Preferred Stock in an amount such that the net proceeds of such sale equal or exceed the amount of unpaid Distributions on such securities (including without limitation all deferred and accumulated amounts) and to apply the net proceeds of such sale to pay such unpaid Distributions in full or;

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(b) the issuer of such securities may, in its sole discretion, or in response to a directive order from a Primary Federal Bank Regulatory Agency, defer or skip in whole or in part payment of Distributions on such securities for one or more Distribution Periods (whether or not consecutive) for up to ten years, without any remedy other than Permitted Remedies.

“Other Qualifying Replacement Capital Covenant” means a replacement capital covenant, as identified by the Corporation’s Board of Directors reasonably construing the definitions of this Replacement Capital Covenant, (i) entered into by a company that at the time it enters into such replacement capital covenant is a reporting company under the Securities Exchange Act and (ii) that restricts the related issuer from repaying, redeeming or purchasing identified securities that at the time of initial issuance were rated by at least two NRSROs except out of the proceeds of specified replacement capital securities that have terms and provisions at the time of repayment, redemption or purchase that are as or more equity-like than the securities then being repaid, redeemed or purchased, raised since the most recent Measurement Date (and with the Corporation being deemed to receive the applicable percentage of the proceeds actually received).

“Permitted Remedies”means, as to any security or combination of securities, one or more of the following remedies:

(a)rights in favor of the holders thereof permitting such holders to elect one or more directors of the Corporation or a Subsidiary of the Corporation (including any such rights required by the listing requirements of any stock or securities exchange on which such securities may be listed or traded); and

(b) complete or partial prohibitions on the Corporation or a Subsidiary of the Corporation paying Distributions on or purchasing or redeeming Common Stock or other securities that rank pari passu with or junior as to Distributions to such securities for so long as Distributions on such securities, including deferred Distributions, have not been paid in full or to such lesser extent as may be specified in the terms of such securities.

“Person” means any individual, corporation, partnership, joint venture, trust, limited liability company or corporation, unincorporated organization or government or any agency or political subdivision thereof.

“Primary Federal Bank Regulatory Agency” means, as to the Corporation or any of its Subsidiaries at any time, the Federal bank regulatory agency that has primary regulatory authority with respect to the Corporation or such Subsidiary.

“Prospectus” has the meaning specified in Recital C.

“Qualifying Capital Securities” means securities (other than securities covered by paragraphs (i) through (iii) of Section 2) that, in the determination of the Corporation’s Board of Directors or the relevant committee thereof reasonably construing the definitions and other terms of this Replacement Capital Covenant, meet one of the following criteria:

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(a)in connection with any repayment, redemption or purchase of ICONs or Trust Preferred Securities on or prior to February 15, 2017:

(i)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon the liquidation, dissolution or winding up of the Corporation, (2) have no maturity or a maturity of at least 60 years and (3) either (x) are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant and have either a No Payment Provision or are Non-Cumulative (y) have a Mandatory Trigger Provision and are subject to Intent-Based Replacement Disclosure and have either an Optional Deferral Provision or a No Payment Provision; or

(ii)preferred stock issued by the Corporation or its Subsidiaries that (1) is Non-Cumulative, (2) has no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, (3) has no maturity or a maturity of at least 60 years and (4) either (x) is subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant or (y) has a Mandatory Trigger Provision and is subject to Intent-Based Replacement Disclosure; or

(iii)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu or junior to other preferred stock of the issuer, (2) have no maturity or a maturity of at least 40 years, (3) are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant, (4) have an Optional Deferral Provision and (5) have a Mandatory Trigger Provision; or

(b) in connection with any repayment, redemption or purchase of ICONs or Trust Preferred Securities at any time after February 15, 2017 but on or prior to February 15, 2037:

(i)securities described under clause (a) of this definition;

(ii)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) have no maturity or a maturity of at least 60 years, (3) are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant and (4) have an Optional Deferral Provision;

(iii)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) are Non-Cumulative or have a No Payment Provision and (3) (x) have no maturity or a maturity of at least 60 years and (y) are subject to Intent-Based Replacement Disclosure;

(iv)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon a liquidation, dissolution or winding up of

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the Corporation, (2) are Non-Cumulative or have a No Payment Provision, (3) have no maturity or a maturity of at least 40 years and (4) are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant;

(v)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) have an Optional Deferral Provision, (3) have a Mandatory Trigger Provision and (4) have no maturity or a maturity of at least 60 years;

(vi)cumulative preferred stock issued by the Corporation or its Subsidiaries that (1) has no prepayment obligation on the part of the issuer thereof, whether at the election of the holders or otherwise, and (2) (x) has no maturity or a maturity of at least 60 years and (y) is subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant; or

(vii)other securities issued by the Corporation or its Subsidiaries that (1) rank upon a liquidation, dissolution or winding-up of the Corporation either (x) pari passu with or junior to the ICONs or (y) pari passu with the claims of the Corporation’s trade creditors and junior to all of the Corporation’s long-term indebtedness for money borrowed (other than the Corporation’s long-term indebtedness for money borrowed from time to time outstanding that by its terms ranks pari passu with such securities on a liquidation, dissolution or winding-up of the Corporation), (2) have an Optional Deferral Provision or a No Payment Provision, (3) have a Mandatory Trigger Provision and (4) either (x) have no maturity or a maturity of at least 40 years and Intent-Based Replacement Disclosure or (y) have no maturity or a maturity of at least 25 years and are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant; or

(c)in connection with any repayment, redemption or purchase of ICONs or Trust Preferred Securities at any time after February 15, 2037:

(i)securities described under clause (b) of this definition;

(ii)preferred stock issued by the Corporation that (1) (x) has no maturity or a maturity of at least 50 years and (y) is subject to Intent-Based Replacement Disclosure and (2) is Non-Cumulative;

(iii)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) either (A) have no maturity or a maturity of at least 60 years and are subject to Intent-Based Replacement Disclosure or (B) have no maturity or a maturity at least 30 years and are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant and (3) are Non-Cumulative;

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(iv)securities issued by the Corporation or its Subsidiaries that (1) rank pari passu with or junior to the ICONs upon a liquidation, dissolution or winding up of the Corporation, (2) have an Optional Deferral Provision, (3) have a Mandatory Trigger Provision and (4) (x) have no maturity or a maturity at least 30 years and (y) are subject to Intent-Based Replacement Disclosure; or

(v)cumulative preferred stock issued by the Corporation or its Subsidiaries that either (1) (x) has no maturity or a maturity of at least 60 years and (y) are subject to Intent-Based Replacement Disclosure or (2) has a maturity of at least 40 years and is subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant.

“Qualifying Non-Cumulative Perpetual Preferred Stock”means preferred stock of the Corporation that (i) is Non-Cumulative, (ii) ranks pari passuwith or junior to all other outstanding preferred stock of the Corporation, (iii) is perpetual and (iv) is subject to either a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant or provides for mandatory deferral tied to the breach of certain financial triggers and is subject to Intent-Based Replacement Disclosure, and in each case as to which the transaction documents provide for no remedies as a consequence of non-payment of Distributions other than Permitted Remedies.

“Redesignation Date” means, as to the then-effective Covered Debt, the earliest of (i) the date that is two years prior to the final maturity date of such Covered Debt, (ii) if the Corporation or any of its Subsidiaries elects to repay or redeem, or the Corporation or any of its Subsidiaries elects to purchase, such Covered Debt either in whole or in part with the consequence that after giving effect to such repayment, redemption or repurchase the outstanding aggregate principal amount of such Covered Debt is less than $100,000,000, the applicable repayment, redemption or purchase date and (iii) if such Covered Debt is not Eligible Subordinated Debt, the date on which the Corporation or U.S. Bank issues long-term indebtedness for money borrowed that is Eligible Subordinated Debt.

“REIT Preferred Securities” means Non-Cumulative perpetual preferred stock of a Subsidiary of a Depository Institution Subsidiary, which may or may not be a “real estate investment trust” (“REIT”) within the meaning of Section 856 of the Internal Revenue Code of 1986, as amended, that is exchangeable for Non-Cumulative perpetual preferred stock of the Corporation and satisfies the following requirements:

(a)such Non-Cumulative perpetual preferred stock of a Subsidiary of a Depository Institution Subsidiary and the related Non-Cumulative perpetual preferred stock of the Corporation for which it may be exchanged qualifies as Tier 1 or core capital of a Depository Institution Subsidiary under the risk-based capital guidelines of the appropriate Primary Federal Bank Regulatory Agency and related interpretive guidance (for example, in the case of the Office of the Comptroller of the Currency, Corporate Decision 97-109);

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(b)such Non-Cumulative perpetual preferred stock of a Subsidiary of a Depository Institution Subsidiary must be exchangeable automatically into Non-Cumulative perpetual preferred stock of the Corporation in the event that the appropriate Primary Federal Bank Regulatory Agency directs such Depository Institution Subsidiary in writing to make a conversion because such Depository Institution Subsidiary is (i) undercapitalized under the applicable prompt corrective action regulations (which, for example, in the case of the Office of the Comptroller of the Currency and applicable to national banks, are at 12 C.F.R. 6.4(b)), (ii) placed into conservatorship or receivership, or (iii) expected to become undercapitalized in the near term;

(c)if such Subsidiary of the Depositary Institution Subsidiary is a REIT, the transaction documents include provisions that would require the Subsidiary to declare “consent dividends” (to the maximum extent permitted by Internal Revenue Code Sections 565 and 562(c)) if it were to stop paying Distributions on its Non-Cumulative perpetual preferred stock, as is necessary to maintain its status as a REIT;

(d)such Non-Cumulative perpetual preferred stock of the Corporation issued upon exchange for the Non-Cumulative perpetual preferred stock of a Subsidiary of a Depository Institution Subsidiary, issued as part of such transaction, ranks pari passu or junior to other preferred stock of the Corporation; and

(e)such Non-Cumulative perpetual preferred stock of a Subsidiary of a Depository Institution Subsidiary and Non-Cumulative perpetual preferred stock of the Corporation for which it may be exchanged are subject to a replacement capital covenant substantially similar to this Replacement Capital Covenant or an Other Qualifying Replacement Capital Covenant.

“Replacement Capital Covenant” has the meaning specified in the introduction to this instrument.

“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Subsidiary” means, at any time, any Person the shares of stock or other ownership interests of which having ordinary voting power to elect a majority of the board of directors or other managers of such Person are at the time owned, or the management or policies of which are otherwise at the time controlled, directly or indirectly through one or more intermediaries (including other Subsidiaries) or both, by another Person.

“Termination Date” has the meaning specified in Section 4(a).

“Trust” has the meaning specified in Recital A.

“U.S. Bank” means U.S. Bank National Association.

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