GUARANTEE AGREEMENT
between
U. S. BANCORP
(as Guarantor)
and
THE FIRST NATIONAL BANK OF CHICAGO
(as Trustee)
--------------
8.27% Capital Securities, Series B
Dated as of ______________, 1997
U. S. BANCORP CAPITAL I
Certain Sections of this Guarantee Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
Section of Section of
Trust Indenture Act Guarantee Agreement
------------------- -------------------
310(a)..............................................................................................4.1(a)
(b).......................................................................................4.1(c), 2.8
(c)......................................................................................Inapplicable
311(a)..............................................................................................2.2(b)
(b)............................................................................................2.2(b)
(c)......................................................................................Inapplicable
312(a)..............................................................................................2.2(a)
(b)............................................................................................2.2(b)
313....................................................................................................2.3
314(a).................................................................................................2.4
(b)......................................................................................Inapplicable
(c)...............................................................................................2.5
(d)......................................................................................Inapplicable
(e)....................................................................................1.1, 2.5, 3.2
(f)..........................................................................................2.1, 3.2
315(a)..............................................................................................3.1(d)
(b)...............................................................................................2.7
(c)...............................................................................................3.1
(d)............................................................................................3.1(d)
316(a).......................................................................................1.1, 2.6, 5.4
(b)...............................................................................................5.3
(c)...............................................................................................8.2
317(a)........................................................................................Inapplicable
(b)......................................................................................Inapplicable
318(a)..............................................................................................2.1(b)
(b)...............................................................................................2.1
(c)............................................................................................2.1(a)
--------------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to be a part
of the Guarantee Agreement.
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS
1.1 Definitions.......................................................................... 1
ARTICLE II
TRUST INDENTURE ACT
2.1 Trust Indenture Act; Application..................................................... 5
2.2 List of Holders...................................................................... 5
2.3 Reports by the Guarantee Trustee..................................................... 6
2.4 Periodic Reports to the Guarantee Trustee............................................ 6
2.5 Evidence of Compliance with Conditions Precedent..................................... 6
2.6 Events of Default; Waiver............................................................ 6
2.7 Event of Default; Notice............................................................. 7
2.8 Conflicting Interests................................................................ 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
3.1 Powers and Duties of the Guarantee Trustee........................................... 7
3.2 Certain Rights of Guarantee Trustee.................................................. 9
3.3 Indemnity............................................................................ 10
ARTICLE IV
GUARANTEE TRUSTEE
4.1 Guarantee Trustee; Eligibility....................................................... 11
4.2 Appointment, Removal and Resignation of the Guarantee
Trustee....................................................................................... 11
ARTICLE V
GUARANTEE
5.1 Guarantee............................................................................ 12
5.2 Waiver of Notice and Demand.......................................................... 12
5.3 Obligations Not Affected............................................................. 12
5.4 Rights of Holders.................................................................... 13
5.5 Guarantee of Payment................................................................. 14
5.6 Subrogation.......................................................................... 14
5.7 Independent Obligations.............................................................. 14
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ARTICLE VI
COVENANTS AND SUBORDINATION
6.1 Subordination........................................................................ 14
6.2 Pari Passu Guarantees................................................................ 15
ARTICLE VII
TERMINATION
7.1 Termination.......................................................................... 15
ARTICLE VIII
MISCELLANEOUS
8.1 Successors and Assigns............................................................... 15
8.2 Amendments........................................................................... 15
8.3 Notices.............................................................................. 16
8.4 Benefit.............................................................................. 17
8.5 Interpretation....................................................................... 17
8.6 Governing Law........................................................................ 17
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GUARANTEE AGREEMENT
8.27% CAPITAL SECURITIES, SERIES B
This GUARANTEE AGREEMENT (the "Series B Guarantee"), dated as of
______________, 1997, is executed and delivered by U. S. BANCORP, an Oregon
corporation, (the "Guarantor") having its principal office at 000 X.X. Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxx 00000, and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, as trustee (the "Guarantee Trustee"), for the
benefit of the Holders (as defined herein) from time to time of the Series B
Capital Securities (as defined herein) of U. S. Bancorp Capital I, a Delaware
statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of December 24, 1996 among the Trustees named
therein, the Guarantor, as Depositor, and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing, in connection with the consummation of the Exchange Offer (as defined
in the Trust Agreement), __________ aggregate Liquidation Amount (as defined
herein) of its 8.27% Capital Securities, Series B (Liquidation Amount $1,000 per
security) (the "Series B Capital Securities"), representing preferred undivided
beneficial interests in the assets of the Issuer and having the terms set forth
in the Trust Agreement;
WHEREAS, as incentive for the Holders to exchange the Series A Capital
Securities (as defined herein) for the Series B Capital Securities in the
Exchange Offer, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth herein, to pay to the Holders of the Series B Capital
Securities the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the acceptance by each Holder of
Series B Capital Securities in the Exchange Offer, which acceptance the
Guarantor hereby agrees shall benefit the Guarantor, the Guarantor executes and
delivers this Series B Guarantee for the benefit of the Holders from time to
time of the Series B Capital Securities.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
As used in this Series B Guarantee, the terms set forth below shall,
unless the context otherwise requires, have the following meanings. Capitalized
or otherwise
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defined terms used but not otherwise defined herein shall have the meanings
assigned to such terms in the Trust Agreement as in effect on the date hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however, that an Affiliate of the
Guarantor shall not be deemed to include the Issuer. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Allocable Amounts," when used with respect to any Senior Subordinated
Indebtedness, means the amount necessary to pay all principal of (and premium,
if any) and interest, if any, on such Senior Subordinated Indebtedness in full
less, if applicable, any portion of such amounts which would have been paid to,
and retained by, the holders of such Senior Subordinated Indebtedness (whether
as a result of the receipt of payments by the holders of such Senior
Subordinated Indebtedness from the Guarantor or any other obligor thereon or
from any holders of, or trustee in respect of, other indebtedness that is
subordinate and junior in right of payment to such Senior Subordinated
Indebtedness pursuant to any provision of such indebtedness for the payment over
of amounts received on account of such indebtedness to the holders of such
Senior Subordinated Indebtedness) but for the fact that such Senior Subordinated
Indebtedness is subordinate or junior in right of payment to trade accounts
payable or accrued liabilities arising in the ordinary course of business.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Series B Guarantee; provided, however,
that, except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Series B Capital Securities, to the
extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Trust Agreement) required to be paid on
the Series B Capital Securities, to the extent the Issuer shall have funds on
hand available therefor at such time, (ii) the redemption price, including all
accrued and unpaid Distributions to the date of redemption (the "Redemption
Price"), with respect to any Series B Capital Securities called for redemption
by the Issuer, to the extent the Issuer shall have funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary termination,
winding-up
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or liquidation of the Issuer, unless Junior Subordinated Debentures are
distributed to the Holders in exchange therefor, the lesser of (a) the aggregate
of the Liquidation Amount of $1,000 per Series B Capital Security plus accrued
and unpaid Distributions on the Series B Capital Securities to the date of
payment to the extent the Issuer shall have funds on hand available to make such
payment at such time and (b) the amount of assets of the Issuer remaining
available for distribution to Holders in liquidation of the Issuer after
satisfaction of liabilities to creditors of the Issuer as required by applicable
law (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Series B Guarantee and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of
the Issuer, of any Series B Capital Securities; provided, however, that in
determining whether the holders of the requisite percentage of Series B Capital
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor, the Guarantee Trustee, or any Affiliate of the
Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of
--------------, 1997, as it may be supplemented and amended from time to time,
between the Guarantor and The First National Bank of Chicago, as trustee.
"Junior Subordinated Debentures" means the 8.27% Junior Subordinated
Deferrable Interest Debentures due December 15, 2026, issued by the Guarantor
pursuant to the Indenture.
"Junior Subordinated Indebtedness" means any obligation of the
Guarantor to its creditors, whether now outstanding or subsequently incurred,
where the instrument creating or evidencing the obligation or pursuant to which
the obligation is outstanding provides that it is subordinate and junior in
right of payment to Senior Debt pursuant to subordination provisions
substantially similar to those set forth in the Indenture. "Junior Subordinated
Indebtedness" includes the Junior Subordinated Debentures.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Series B Capital Securities"
means, except as provided by the Trust Indenture Act, a vote by the Holder(s),
voting separately as a class, of more than 50 percent of the Liquidation Amount
of all then outstanding Series B Capital Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by the Chairman and Chief Executive Officer, President or a
Vice President, and by the
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Treasurer, Associate Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Series B Guarantee
shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer, 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.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
Senior Vice President, any Vice President, any Assistant Vice President, the
Secretary, any Assistant Secretary, the Treasurer, any Assistant Treasurer, the
Cashier, any Assistant Cashier, any Trust Officer or Assistant Trust Officer,
the Controller or any Assistant Controller, or any other officer of the
Guarantee Trustee customarily performing functions similar to those performed by
any of the above designated officers, 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.
"Senior Debt" means (i) Senior Indebtedness (but excluding trade
accounts payable and accrued liabilities arising in the ordinary course of
business) and (ii) the Allocable Amounts of Senior Subordinated Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (i) every obligation of the Guarantor for money borrowed
(including any deferred obligation for the payment of the purchase price of
property and assets and obligations arising from guarantees by the Guarantor of
the indebtedness of others), (ii) obligations of, or any such obligation
guaranteed by, the Guarantor as lessee under leases required to be capitalized
on the balance sheet of the lessee under generally accepted accounting
principles and leases of property or assets made as part of any sale and
leaseback transaction to which the Guarantor is a party,
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(iii) obligations of the Guarantor under letters of credit, and (iv) any
indebtedness of the Guarantor under or other obligations of the Guarantor to
make payment pursuant to the terms of commodity contracts, interest rate and
currency swap agreements, cap, floor and collar agreements, currency spot and
forward contracts, and other similar agreements or arrangements, whether
incurred on or prior to the date of the Indenture or thereafter incurred, other
than any obligation as to which, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligation is not Senior Indebtedness, provided that Senior Indebtedness does
not include Senior Subordinated Indebtedness, the Junior Subordinated
Debentures, or the 8.27% Junior Subordinated Deferrable Interest Debentures
issued by the Guarantor pursuant to an indenture dated as of December 24, 1996.
"Senior Subordinated Indebtedness" means any obligation of the
Guarantor to its creditors, whether now outstanding or subsequently incurred,
where the instrument creating or evidencing the obligation or pursuant to which
the obligation is outstanding, provides that it is subordinate and junior in
right of payment to Senior Indebtedness. Senior Subordinated Indebtedness
includes the Guarantor's outstanding subordinated debt securities and any
subordinated debt securities issued in the future with substantially similar
subordination terms and does not include the Junior Subordinated Debentures, the
8.27% Junior Subordinated Deferrable Interest Debentures issued by the Guarantor
pursuant to an indenture dated as of December 24, 1996, or any subordinated debt
securities issued in the future with substantially similar subordination terms.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Series B Guarantee is subject to the provisions of the Trust
Indenture Act that are required to be part of this Series B Guarantee and shall,
to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Series B Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 List of Holders.
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(a) The Guarantor shall furnish or cause to be furnished to the
Guarantee Trustee (a) semiannually, on or before June 15 and December 15 of each
year, a list, in such form as the Guarantee Trustee may reasonably require, of
the names and addresses of the Holders ("List of Holders") as of a date not more
than 15 days prior to the delivery thereof, and (b) at such other times as the
Guarantee Trustee may request in writing, within 30 days after the receipt by
the Guarantor of any such request, a List of Holders as of a date not more than
15 days prior to the time such list is furnished, in each case to the extent
such information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. 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
Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Within 60 days after June 15 of each year, commencing June 15, 1997,
the Guarantee Trustee shall provide to the Holders such reports as are required
by Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities
and Exchange Commission and the Holders such documents, reports and information,
if any, as required by Section 314 of the Trust Indenture Act 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.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this Series B
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 2.6 Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Series B Capital
Securities may, by vote, on behalf of all the Holders, waive any past Event of
Default and its consequences. Upon such waiver, any such Event of Default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Series B
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Guarantee, but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent therefrom.
SECTION 2.7 Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders, notices of all Events of Default known to the Guarantee Trustee, unless
such defaults have been cured before the giving of such notice; provided that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Event of Default unless the Guarantee Trustee shall have received written
notice, or a Responsible Officer charged with the administration of the Trust
Agreement shall have obtained written notice, of such Event of Default.
SECTION 2.8 Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in
this Series B Guarantee for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Series B Guarantee shall be held by the Guarantee Trustee for
the benefit of the Holders, and the Guarantee Trustee shall not transfer this
Series B Guarantee to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) 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 shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Series B Guarantee for the benefit of the
Holders.
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(c) The Guarantee Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Series B Guarantee, and no implied covenants shall be read into this Series
B Guarantee against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Series B 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 Series B 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 Event of Default and after
the curing or waiving of all such 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 Series B 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 Series B
Guarantee; and
(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 Series B Guarantee; but in the case
of any such certificates or opinions that by any provision
hereof or of the Trust Indenture Act 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 Series
B 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 Series B Capital Securities
relating to the time, method and place of
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conducting any proceeding for any remedy available to the Guarantee
Trustee, or exercising any trust or power conferred upon the Guarantee
Trustee under this Series B Guarantee; and
(iv) no provision of this Series B 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 Series B Guarantee or adequate indemnity against such
risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may 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 reasonably 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 Series B Guarantee shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Series B
Guarantee, the Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or omitting to take
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 rely upon an Officers' Certificate which, upon
receipt of such request from the Guarantee Trustee, shall be promptly
delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and
the written advice or opinion of such legal counsel with respect to
legal matters shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or opinion.
Such legal counsel may be legal counsel to the Guarantor or any of its
Affiliates and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Series B Guarantee from any court of competent
jurisdiction.
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(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Series B
Guarantee at the request or direction of any Holder, unless such Holder
shall have provided to the Guarantee Trustee such adequate security and
indemnity as would satisfy a reasonable person in the position of the
Guarantee Trustee, against the costs, expenses (including
attorneys' fees and expenses) 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)(v) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Series B Guarantee.
(vi) 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.
(vii) The Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through its agents or attorneys, and the Guarantee Trustee shall not
be responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
(viii) Whenever in the administration of this Series B
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 (A) may request
instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (C) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Series B 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 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 to act in accordance with such power and
authority.
SECTION 3.3 Indemnity.
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The Guarantor agrees to indemnify the Guarantee Trustee for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Guarantee Trustee, arising out of or
in connection with the acceptance or administration of this Series B Guarantee,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Guarantee Trustee will not claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Series B Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000, and shall be a corporation meeting the
requirements of Section 310(a) of the Trust Indenture Act. If such
corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the supervising or examining
authority, then, for the purposes of this section and to the extent
permitted by the Trust Indenture Act, 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 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 the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed
or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed 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.
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(c) The Guarantee Trustee appointed hereunder shall hold 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 resignation, the resigning
Guarantee Trustee may petition, at the expense of the Guarantor, 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.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to
the Holders the Guarantee Payments (without duplication of amounts theretofore
paid by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer 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 Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Series B
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
Guarantee Trustee, Issuer 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 Series B Guarantee shall in no way be affected or impaired by reason
of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied
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agreement, covenant, term or condition relating to the Series B Capital
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that results from the extension of any
interest payment period on the Junior Subordinated Debentures as so
provided in the Indenture), Redemption Price, Liquidation Distribution
or any other sums payable under the terms of the Series B Capital
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Series B
Capital Securities;
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Series B Capital Securities, or any action on the part of
the Issuer 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 Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the Series
B Capital 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 Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
SECTION 5.4 Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Series B Guarantee
will be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Series B
Guarantee on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Series B Capital Securities have the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the Guarantee
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Trustee in respect of this Series B Guarantee or exercising any trust or power
conferred upon the Guarantee Trustee under this Series B Guarantee; and (iv) any
Holder may institute a legal proceeding directly against the Guarantor to
enforce its rights under this Series B Guarantee, without first instituting a
legal proceeding against the Guarantee Trustee, the Issuer or any other Person.
SECTION 5.5 Guarantee of Payment.
This Series B Guarantee creates a guarantee of payment and not of
collection. This Series B Guarantee will not be discharged except by payment of
the Guarantee Payments in full (without duplication of amounts theretofore paid
by the Issuer) or upon distribution of Junior Subordinated Debentures to Holders
as provided in the Trust Agreement.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Series B Guarantee and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Series B Guarantee, if at the time of any such
payment, any amounts are due and unpaid under this Series B 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 Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Series B
Capital Securities and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this Series
B Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
COVENANTS AND SUBORDINATION
SECTION 6.1 Subordination.
The obligations of the Guarantor under this Series B Guarantee will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Debt of the Guarantor in the same
manner as the Junior Subordinated Debentures.
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SECTION 6.2 Pari Passu Guarantees.
The obligations of the Guarantor under this Series B Guarantee shall
rank pari passu with the obligations of the Guarantor under any similar
guarantee agreements issued by the Guarantor on behalf of the holders of
preferred or capital securities issued from time to time by one or more business
trusts of the Guarantor.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Series B Guarantee shall terminate and be of no further force and
effect upon (i) full payment of the Redemption Price of all Series B Capital
Securities, (ii) the distribution of Junior Subordinated Debentures to the
Holders in exchange for all of the Series B Capital Securities or (iii) full
payment of the amounts payable in accordance with the Trust Agreement upon
liquidation of the Issuer. Notwithstanding the foregoing, this Series B
Guarantee will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to Series B Capital Securities or this Series B Guarantee.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Successors and Assigns.
All guarantees and agreements contained in this Series B Guarantee
shall bind the successors, assigns, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of the Series B
Capital 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 assignee agrees in writing to perform
the Guarantor's obligations hereunder, the Guarantor shall not assign its
obligations hereunder.
SECTION 8.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of the Holders in any material respect (in which case no vote of the
Holders will be required), this Series B Guarantee may only be amended with the
prior approval of the Holders of not less than a Majority in Liquidation Amount
of the Series B Capital Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of the Holders shall apply to the giving of such
approval.
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SECTION 8.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address, facsimile number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
U. S. Bancorp
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Secretary
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer
may give notice to the Holders:
U. S. Bancorp Capital I
c/o U. S. Bancorp
000 X.X. Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Administrative Trustees
with a copy to:
The First National Bank of Chicago
Suite 0126
One First Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust Services Division
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder 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.
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SECTION 8.4 Benefit.
This Series B Guarantee is solely for the benefit of the Holders and is
not separately transferable from the Series B Capital Securities.
SECTION 8.5 Interpretation.
In this Series B Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Series B Guarantee but not
defined in the preamble hereto have the respective meanings assigned to
them in Section 1.1;
(b) a term defined anywhere in this Series B Guarantee has the
same meaning throughout;
(c) all references to "the Series B Guarantee" or "this Series
B Guarantee" are to this Series B Guarantee as modified, supplemented
or amended from time to time;
(d) all references in this Series B Guarantee to Articles and
Sections are to Articles and Sections of this Series B Guarantee unless
otherwise specified;
(e) a reference to the singular includes the plural and vice
versa;
(f) the masculine, feminine or neuter genders used herein
shall include the masculine, feminine and neuter genders; and
(g) a term defined in the Trust Indenture Act has the same
meaning when used in this Series B Guarantee unless otherwise defined
in this Series B Guarantee or unless the context otherwise requires.
SECTION 8.6 Governing Law.
THIS SERIES B GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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.
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THIS SERIES B GUARANTEE is executed as of the day and year first above
written.
U. S. BANCORP
By
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
THE FIRST NATIONAL BANK OF CHICAGO
as Guarantee Trustee
By
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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