WELLS FARGO & COMPANY
$2,500,000,000
Medium-Term Notes
and
Subordinated Medium-Term Notes, Series B
Due from Nine Months to 12 Years from Date of Issue
DISTRIBUTION AGREEMENT
___________________, 1995
Merrill Lynch & Co. CS First Boston Corporation
Merrill Lynch, Pierce, Fenner Park Avenue Plaza
& Smith Incorporated New York, N.Y. 10055
World Financial Center
North Tower, 10th Floor
New York, N.Y. 10281-1310
Goldman, Sachs & Co. Lehman Brothers
85 Broad Street Lehman Brothers Inc.
New York, N.Y. 10004 Three World Financial
Center, 12th Floor
New York, N.Y. 10285-1200
Morgan Stanley & Co. Incorporated Salomon Brothers Inc
1251 Avenue of the Americas Seven World Trade Center
New York, N.Y. 10020 New York, N.Y. 10048
Ladies and Gentlemen:
Wells Fargo & Company, a Delaware corporation (the
"Company"), confirms its agreement with each of you with respect to
the issue and sale by the Company of up to $2,500,000,000 (or the
equivalent thereof in one or more foreign currencies or currency
units) aggregate principal amount of its Medium-Term Notes due from
Nine Months to Twelve Years from Date of Issue (the "Notes", which
term shall include the Senior Notes and the Subordinated Notes).
The "Senior Notes" are the Company's Medium-Term Notes to be issued
under an Indenture dated as of September 1, 1984 between the
Company and Chemical Bank, as successor trustee (the "Senior
Trustee"), as amended by the First Supplemental Indenture dated as
of April 15, 1986, the Second Supplemental Indenture dated as of
June 30, 1987 and the Third Supplemental Indenture dated as of
January 23, 1991 (collectively, the "Senior Indenture"). The
"Subordinated Notes" are the Company's Subordinated Medium-Term
Notes, Series B to be issued under an Indenture dated as of
December 10, 1992 (the "Subordinated Indenture") between the
Company and Marine Midland Bank (the "Subordinated Trustee"). The
Notes will have the maturities, interest rates, redemption
provisions, if any, and other terms as set forth in
one or more supplements to the Prospectus referred to below. The
Senior Indenture and the Subordinated Indenture are sometimes
herein referred to together as the "Indentures" or individually as
an "Indenture", and the Senior Trustee and the Subordinated Trustee
are sometimes herein referred to together as the "Trustees" or
individually as a "Trustee". The Company shall designate at the
time of such issuance whether the Notes to be issued are Senior
Notes or Subordinated Notes.
Subject to the terms and conditions stated herein and subject
to the reservation by the Company of the right to sell, and to
accept offers to purchase, Notes directly, through subsidiaries or
through finders which are subsidiaries, the Company hereby
(i) appoints Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated ("Merrill Lynch"), CS First Boston Corporation
("First Boston"), Goldman, Sachs & Co. ("Goldman, Sachs"), Lehman
Brothers, Lehman Brothers Inc. (including its affiliate Lehman
Government Securities Inc. ("Lehman Brothers"), Morgan Stanley &
Co. Incorporated ("Morgan Stanley") and Salomon Brothers Inc
("Salomon Brothers") (individually, an "Agent" and collectively,
the "Agents") as agents of the Company (which agency shall be
exclusive, except as provided below) for the purpose of soliciting
purchases of the Notes from the Company by others and (ii) agrees
that whenever the Company determines to sell Notes directly to an
Agent as principal for resale to others it will enter into a Terms
Agreement relating to such sale in accordance with the provisions
of Section 2(b) hereof.
1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to, and agrees with, each Agent, as of the
date hereof, as of the date of each acceptance by the Company of an
offer for the purchase of Notes (whether through an Agent as agent
or to an Agent as principal), as of the date of each delivery of
Notes (whether through an Agent as agent or to an Agent as
principal) and as of any time that any Registration Statement or
Prospectus (each as hereinafter defined) is amended or
supplemented:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission")
registration statements on such form (Registration Nos. 33-51227
and 33-___), each of which registration statements, as amended (if
applicable), has become effective, for the registration under the
Act of the Notes. References herein to a "Registration Statement"
and the "Registration Statements" shall be deemed to refer to and
include each such registration statement, including the exhibits
thereto, as amended (if applicable) at the date of this Agreement.
Each Registration Statement meets and will meet the requirements
set forth in Rule 415(a)(1)(x) under the Act and complies and will
comply in all other material respects with said Rule. The Company
proposes to file with the Commission from time to time, pursuant to
Rule 424(b) under the Act, supplements to the prospectus and
prospectus supplement relating to the Notes, which will describe
certain terms of the Notes and, subject to Section 3(a), prior to
any such filing will advise each Agent of all further information
(financial and other) with respect to the Company to be set forth
therein other than the specific terms of the Notes offered thereby.
The prospectus and prospectus supplement relating to the Notes in
the form transmitted for filing with the Commission pursuant to
Rule 424(b) under the Act on ___________________, 1995 are herein
called, together, the "Prospectus"; provided, however, that if in
any case any revised prospectus or prospectus supplement shall be
provided by the Company to the Agents for use in connection with
the offering of the Notes, whether or not the same is required to
be filed pursuant to Rule 424(b) under the Act, the term
"Prospectus" shall be deemed to refer to and include such revised
prospectus or prospectus supplement from and after the time it is
first provided to the Agents for such use. Any reference herein to
a Registration Statement or Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Act or
under the Securities Exchange Act of 1934 (the "Exchange Act") on
or before the date of this Agreement, or the date of such
Prospectus, as the case may be; and any reference
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herein to the terms "amend", "amendment" or "supplement" with
respect to any Registration Statement or Prospectus shall be deemed
to refer to and include the filing of any document under the
Exchange Act after the date of this Agreement or the date of such
Prospectus, as the case may be, deemed to be incorporated therein
by reference.
(b) Each Registration Statement and the
Prospectus, each as amended or supplemented, and the Indentures
comply and will comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act") and the Exchange Act and the
respective rules thereunder and (ii) neither any Registration
Statement nor the Prospectus, each as amended or supplemented,
contains or will contain any untrue statement of a material fact or
omits or will omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no
representations or warranties as to (x) that part of any
Registration Statement which constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of either
Trustee or (y) the information contained in or omitted from any
Registration Statement or the Prospectus or any amendment thereof
or supplement thereto in reliance upon and in conformity with
information concerning an Agent furnished in writing to the Company
by such Agent expressly for use in such Registration Statement and
such Prospectus or any amendment or supplement thereto.
(c) The Company has been duly incorporated, is
validly existing in good standing under the laws of the State of
Delaware, is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, and has all requisite corporate
power and authority to own its property and to conduct its business
as described in the Prospectus, except to the extent that the
failure to have such corporate power and authority would not have a
material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(d) Wells Fargo Bank, National Association (the
"Bank") has been duly organized and is validly existing as a
national banking association and continues to hold a valid
certificate to do business as a national banking association under
the laws of the United States; the Bank has all requisite corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus, except where
the failure to have such corporate power and authority would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise; all of the issued and outstanding
capital stock of the Bank has been duly and validly issued and is
fully paid and non-assessable (subject, however, to the provisions
of Section 55, Title 12, United States Code); and all of the
capital stock of the Bank is owned by the Company, directly or
indirectly, free and clear of any mortgage, pledge, lien,
encumbrance, claim or equity.
(e) Each of this Agreement and, if applicable, any
Terms Agreement entered into in connection with a sale of Notes to
which this representation and warranty relates has been duly
authorized by all necessary corporate action on the part of the
Company and has been duly executed and delivered by the Company.
(f) Each of the Senior Indenture and the
Subordinated Indenture has been duly authorized by all necessary
corporate action on the part of the Company and has been duly
executed and delivered by the Company and is a valid and binding
agreement of the Company and is duly qualified under the Trust
Indenture Act.
(g) The Notes have been duly authorized by all
necessary corporate action on the part of the Company and, when
executed and authenticated in accordance with the applicable
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Indenture and delivered to and paid for by the purchaser thereof,
will be valid and binding obligations of the Company entitled to
the benefits of such Indenture, except as any rights thereunder may
be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(h) The execution, delivery and performance of
this Agreement, any Terms Agreement and the Indentures by the
Company and the issuance and sale of the Notes will not contravene
any provision of applicable law or the restated certificate of
incorporation or bylaws of the Company or the articles of
association or bylaws of the Bank, or any provision of any
agreement or other instrument binding upon the Company or the Bank.
(i) No authorization, consent, approval of or
filing with any governmental or regulatory body is required to be
obtained by the Company in connection with the execution, delivery
and performance of this Agreement, any Terms Agreement, or either
Indenture or the issuance and sale of the Notes, other than the
filing with the Commission in connection with the registration of
the Notes under the Act and the qualification of each Indenture
under the Trust Indenture Act and except that the offer and sale of
the Notes in certain jurisdictions may be subject to the Blue Sky
or securities laws of such jurisdictions.
(j) Since the respective dates as of which
information is given in the Registration Statements and the
Prospectus, as amended or supplemented, except as may otherwise be
stated therein or contemplated thereby, (i) there has been no
material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business and (ii) there
have been no material transactions entered into by the Company or
any of its subsidiaries other than those in the ordinary course of
business.
(k) All of the securities registered under the
Prior Registration Statements have been issued and sold by the
Company. "Prior Registration Statements" mean the Company's
registration statements on Form S-3, as amended (if applicable),
registration nos. 33-39045, 33-42273, 33-45066 and 33-53514.
2. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) Solicitations as Agent. On the basis of the
representations and warranties herein contained, but subject to the
terms and conditions herein set forth, each Agent will use its best
efforts to solicit offers to purchase the Notes upon the terms and
conditions set forth in the Prospectus as then amended or
supplemented. The Company reserves the right to sell, and to
accept offers to purchase, Notes directly, through subsidiaries or
through finders which are subsidiaries. Each Agent is authorized
to engage the services of any other broker or dealer in connection
with the offer or sale of Notes purchased by such Agent as
principal for resale to others, but such Agent is not authorized to
appoint sub-agents.
The Company agrees to pay each Agent, as
consideration for soliciting the sale of any Notes, a commission in
the form of a discount equal to the following percentage of the
principal amount of each Note sold by such Agent:
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TERM COMMISSION RATE
More than 9 months to less than 1 year .125%
1 year to less than 18 months .150
18 months to less than 2 years .200
2 years to less than 3 years .250
3 years to less than 4 years .350
4 years to less than 5 years .450
5 years to less than 6 years .500
6 years to less than 7 years .550
7 years to less than 8 years .600
8 years to less than 9 years .600
9 years to less than 10 years .600
10 years to 12 years .625
Each Agent is authorized to solicit offers to purchase Notes only
in principal amounts of $1,000 (or any other such amount that may
be specified as a minimum denomination in an amendment or
supplement to the Prospectus) or any amount in excess thereof which
is a whole multiple of $1,000. Each Agent shall communicate to the
Company, orally or in writing, each offer received by it to
purchase Notes that it has not rejected pursuant to the last
sentence of this paragraph. The Company shall have the sole right
to accept offers to purchase Notes and may reject any such offer in
whole or in part. Each Agent shall have the right to reject, in
its discretion reasonably exercised, any offer received by it to
purchase the Notes in whole or in part, and any such rejection
shall not be deemed a breach of its agreements contained herein.
(b) Purchases as Principal. Each sale of Notes to
an Agent, as principal, shall be made in accordance with the terms
of this Agreement and a separate agreement which will provide for
the sale of such Notes to such Agent. Each such separate
agreement, whether oral (and confirmed in writing, which may be by
facsimile transmission) or in writing is herein referred to as a
"Terms Agreement" and shall include such information (as
applicable) as is specified in Exhibit A hereto. An Agent's
commitment to purchase Notes pursuant to any Terms Agreement shall
be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to
the terms and conditions herein set forth. Each Terms Agreement
shall specify the principal amount of Notes to be purchased by such
Agent pursuant hereto, the price to be paid to the Company for such
Notes (which, if not so specified in the Terms Agreement, shall be
at a discount equivalent to the applicable commission set forth in
this Section 2), the time and date of delivery of and payment for
such Notes (the "Settlement Date") and the place of such delivery
and payment, any provisions relating to rights and obligations of
purchasers acting together with the Agent in the reoffering of the
Notes, and such other provisions (including further terms of the
Notes) as may be mutually agreed upon. The Agents may utilize a
selling or dealer group in connection with the resale of the Notes
purchased by such Agents and the Agents may sell any such Notes to
any dealers at a discount not in excess of the discount payable to
the Agents by the Company. Such Terms Agreement
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shall also specify any requirements for opinions of counsel,
officer's certificates and letters from KPMG Peat Marwick LLP
pursuant to Section 4 hereof and whether the stand-off agreement
pursuant to Section 3(l) hereof will apply.
(c) Procedures. Each Agent and the Company agree
to perform the respective duties and obligations specifically
provided to be performed by them in the Medium-Term Notes
Administrative Procedures (attached hereto as Exhibit B) (the
"Procedures"), as amended from time to time. The Procedures may be
amended only by written agreement of the Company and each Agent.
The Procedures shall be deemed to refer to both the Senior Notes
and the Subordinated Notes. References in the Procedures to each
"Agent" or to the "Agents" shall mean the Agents, individually or
collectively, as the case may be.
(d) Delivery. The documents required to be
delivered by Section 4 of this Agreement shall be delivered at the
offices of Brobeck, Phleger & Harrison, San Francisco, California,
counsel for the Company, on the date hereof, or at such other time
and place as the Agents and the Company may agree upon in writing
(the "Closing Date").
3. AGREEMENTS. The Company agrees with each Agent
that:
(a) Prior to the termination of the offering of
the Notes pursuant to this Agreement, the Company will not file any
amendment of any Registration Statement or file or use any
supplement to the Prospectus unless the Company has previously
furnished to each Agent a copy thereof for its review and will not
file or use any such proposed amendment or supplement to which the
Agents reasonably object; provided, however, that the foregoing
requirement shall not apply to (i) any amendment or supplement
relating exclusively to securities offered by the Company other
than the Notes or (ii) any of the Company's periodic filings with
the Commission on Forms 10-K, 10-Q or 8-K, copies of which filings
the Company will cause to be delivered to the Agents promptly after
being mailed for filing with the Commission; and provided, further,
that any amendment or supplement containing no disclosure other
than specific terms of Notes and the manner of distribution thereof
need be furnished only to the Agent to or through whom such Notes
are to be sold (the "Participating Agent"). Subject to the
foregoing sentence, the Company will promptly cause supplements to
the Prospectus to be filed with or transmitted for filing to the
Commission pursuant to Rule 424. The Company will promptly advise
the Agents (i) of the filing of any amendment or supplement to the
Prospectus (other than a supplement to the Prospectus containing no
disclosure other than specific terms of Notes and the manner of
distribution thereof, in which case the Company will advise only
the Participating Agent), (ii) of the filing and effectiveness of
any amendment to any Registration Statement, (iii) of any request
by the Commission for any amendment of any Registration Statement
or any amendment of or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of any Registration
Statement or the institution or threatening of any proceeding for
that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of
the Notes for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. The Company will
use its reasonable best efforts to prevent the issuance of any such
stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) (i) Prior to the termination of the offering
of the Notes pursuant to this Agreement or at any time when a
prospectus relating to the Notes is required to be delivered under
the Act, if any event occurs or condition exists as a result of
which any Registration Statement or the Prospectus as then amended
or supplemented would not reflect any facts or events which,
6
individually or in the aggregate, represent a fundamental change in
the information set forth in such Registration Statement or
Prospectus, as then amended or supplemented, and/or would include
an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading, or if, in the opinion of the Company, it is necessary
at any time to amend or supplement any Registration Statement or
the Prospectus, as then amended or supplemented, to comply with the
Act, the Company promptly will notify the Agents by telephone (with
confirmation in writing) to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, the Agents shall
forthwith suspend such solicitation and cease using the Prospectus
as then amended or supplemented. If the Company shall decide to
amend or supplement any Registration Statement or the Prospectus,
as then amended or supplemented, it shall so advise the Agents
promptly by telephone (with confirmation in writing) and will
promptly prepare and file with the Commission an amendment or
supplement to such Registration Statement or Prospectus as then
amended or supplemented which will include such facts or events
and/or will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus
to the Agents in such quantities as they may reasonably request;
and if such amendment or supplement, and any documents,
certificates and opinions furnished to the Agents pursuant to
paragraph (f) below in connection with the preparation or filing of
such amendment or supplement, are satisfactory in all respects to
the Agents, upon the filing of such amendment or supplement with
the Commission or effectiveness of an amendment to any Registration
Statement, the Agents will resume the solicitation of offers to
purchase Notes hereunder. Notwithstanding any other provision of
this Section 3(b), during the period any Agent shall have the legal
obligation to deliver a prospectus with respect to the sale by it
of Notes which it has acquired under a Terms Agreement pursuant to
Section 2(b), if any event described in this Section 3(b) occurs,
the Company will forthwith prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statements or Prospectus, as then amended or supplemented,
satisfactory in all respects to such Agent, will supply such
amended or supplemented Prospectus to such Agent in such quantities
as it shall reasonably request and shall furnish to such Agent
pursuant to paragraph (f) below such documents, certificates and
opinions as it may request in connection with the preparation and
filing of such amendment or supplement. Upon the request of the
Company, each Agent will inform the Company whether it has the
legal obligation to deliver a prospectus with respect to the sale
by it of Notes which it has acquired under a Terms Agreement
pursuant to Section 2(b).
(c) As soon as practicable, the Company will make
generally available to its securityholders and to the Agents an
earnings statement satisfying the provisions of Section 11(a) of
the Act and Rule 158 under the Act, and, not later than 45 days
after the end of the 12-month period beginning at the end of each
fiscal quarter of the Company during which the effective date of
any post-effective amendment to any Registration Statement occurs,
the Company will make generally available to its securityholders an
earnings statement covering such 12-month period that will satisfy
the provisions of such Section 11(a) and Rule 158.
(d) The Company will furnish to each Agent and
counsel for the Agents copies of each Registration Statement, the
Prospectus and all amendments of and supplements to such documents
(other than amendments or supplements containing no disclosure
other than specific terms of Notes with respect to which such Agent
is not a Participating Agent), in each case as soon as available
and in such quantities as such Agent reasonably requests.
(e) The Company will arrange for the qualification
of the Notes for sale under the laws of such jurisdictions as the
Agents may reasonably designate with the approval of the Company,
will maintain such qualifications in effect so long as required for
the distribution of the
7
Notes pursuant to this Agreement and will arrange for the
determination of the legality of the Notes for purchase by
institutional investors.
(f) The Company shall furnish to the Agents such
documents, certificates of officers of the Company and opinions of
counsel for the Company relating to the business, operations and
affairs of the Company, each Registration Statement, the
Prospectus, any amendments or supplements thereto, the Indentures,
the Notes, this Agreement, the Procedures, any Terms Agreement and
the performance by the Company and the Agents of their respective
obligations hereunder and thereunder as the Agents may from time to
time reasonably request.
(g) The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including:
(i) the preparation and filing of the Registration Statements and
all amendments thereto, (ii) the preparation, issuance and delivery
of the Notes, (iii) the fees and disbursements of the Company's
accountants and of the Trustees and their respective counsel,
(iv) the qualification of the Notes under securities laws in
accordance with the provisions of Section 3(e), including filing
fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the
preparation of any Blue Sky Memorandum and any Legal Investment
Memorandum, (v) the reasonable fees of counsel for the Agents
incurred in connection with the offering and sale of the Notes
(including the reasonable fees and expenses of special counsel in
any state in the event it should become necessary to obtain
opinions of such counsel as to usury or other matters of local law
in order to obtain or maintain the qualifications referred to in
Section 3(e) hereof) other than in connection with the sale of
Notes to an Agent as principal pursuant to a Terms Agreement
(unless so provided in such Terms Agreement), (vi) the printing and
delivery to the Agents in quantities as hereinabove stated of
copies of the Registration Statements and all amendments thereto,
and of the Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Agents of copies of the
Indentures and any Blue Sky Memorandum and any Legal Investment
Memorandum, (viii) any fees charged by rating agencies for the
rating of the Notes, (ix) any advertising and other out-of-pocket
expenses incurred with the approval of the Company, and (x) the
fees and expenses, if any, incurred with respect to any filing with
the National Association of Securities Dealers, Inc.
(h) Each acceptance by the Company of an offer for
the purchase of Notes (whether through an Agent as Agent or to an
Agent as principal) and each sale of Notes, shall be deemed to be
an affirmation that the representations and warranties of the
Company contained in this Agreement and in any certificate
theretofore delivered pursuant hereto are true and correct at the
time of such acceptance or sale, as the case may be, and an
undertaking that such representations and warranties will be true
and correct at the time of delivery to the purchaser or his agent,
or such Agent, of the Notes relating to such acceptance or sale, as
the case may be, as though made at and as of each such time (and it
is understood that such representations and warranties shall relate
to each Registration Statement and the Prospectus as amended and
supplemented to each such time).
(i) Each time any Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rates,
redemption provisions or maturities offered on the Notes or for a
change deemed immaterial in the reasonable opinion of the Agents),
or if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement, the Company
will deliver or cause to be delivered forthwith to the Agents or
such Agent, as the case may be, a certificate of the Company signed
by the Chairman of the Board, the President, any Vice Chairman, or
any Vice President, dated the date of the effectiveness of such
amendment or filing or supplement or sale, as the case may be, in
form reasonably satisfactory to the Agents or such Agent, as the
case may be, to the
8
effect that the statements contained in the certificate referred to
in Section 4(c) that was last furnished to the Agents (either
pursuant to Section 4(c) or pursuant to this Section 3(i)) are true
and correct as though made at and as of such time (except that such
statements shall be deemed to relate to each Registration Statement
and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 4(c) relating to each
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate. In lieu
of such certificate, an officer eligible to sign a certificate
furnished to the Agents pursuant to this Section 3(i) may furnish
to the Agents or such Agent, as the case may be, a letter to the
effect that the Agents or such Agent, as the case may be, may rely
on such last certificate as though it were dated the date of such
letter authorizing reliance on such certificate (except that the
statements in such last certificate will be deemed to relate to
each Registration Statement and the Prospectus as amended and
supplemented to the time of such letter authorizing reliance).
(j) Each time any Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment
or supplement providing solely for a change in the interest rates,
redemption provisions or maturities offered on the Notes or for a
change deemed immaterial in the reasonable opinion of the Agents)
or if so indicated in the applicable Terms Agreement, the Company
sells Notes to an Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to the Agents or
such Agent, as the case may be, a written opinion of counsel of the
Company satisfactory to the Agents or such Agent, as the case may
be (who may be Chief Counsel of the Company); provided, however,
that such counsel need not provide an opinion regarding the
financial statements or other financial information included in
such amendment or supplement. Any such opinion shall be dated the
date of the effectiveness of such amendment or filing of such
supplement or sale, as the case may be, in form satisfactory to
counsel for the Agents, and shall be of the same tenor as the
opinions referred to in Sections 4(b)(i) and 4(b)(ii) but modified
to relate to each Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion.
In lieu of such opinion, counsel last furnishing such an opinion to
the Agents may furnish to the Agents or such Agent, as the case may
be, a letter to the effect that the Agents or such Agent, as the
case may be, may rely on such last opinion to the same extent as
though it were dated the date of such letter authorizing reliance
on such last opinion (except that statements in such last opinion
will be deemed to relate to each Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of
such letter authorizing reliance).
(k) Each time that any Registration Statement or
the Prospectus is amended or supplemented to set forth amended or
supplemental financial information in such Registration Statement
or Prospectus, or if so indicated in the applicable Terms
Agreement, the Company sells Notes to an Agent pursuant to a Terms
Agreement, the Company shall cause KPMG Peat Marwick LLP, its
independent public accountants, forthwith to furnish the Agents or
such Agent, as the case may be, a letter, dated the date of the
effectiveness of such amendment or the date of filing of such
supplement, or the date of such sale, as the case may be, in form
satisfactory to the Agents or such Agent, as the case may be, of
the same tenor as the letter referred to in Section 4(d), with
regard to the amended or supplemental financial information
included or incorporated by reference in each Registration
Statement and the Prospectus, as amended or supplemented to the
date of such letter. In lieu of such letter, if since the date of
the last such letter furnished to the Agents pursuant to this
Section 3(k), none of the Registration Statements or the Prospectus
has been amended or supplemented to include amended or supplemented
financial information, KPMG Peat Marwick LLP may furnish to the
Agents or such Agent, as the case may be, a letter to the effect
that the Agents or such Agent, as the case may be, may rely on the
last such letter furnished to the Agents pursuant to this
Section 3(k) as though it were dated the date of such letter
authorizing reliance on such last letter (except that
9
statements in such last letter will be deemed to relate to each
Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such letter authorizing reliance).
(l) If so provided in a Terms Agreement, between
the date of such Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the
prior consent of the Agent or Agents, as the case may be, party
thereto, offer or sell, or enter into any agreement to sell, any
debt securities of the Company having terms, including, without
limitation, interest rate and maturity, substantially similar to
the Notes (other than the securities that are to be sold pursuant
to such Terms Agreement and commercial paper in the ordinary course
of business).
(m) Upon the issuance and sale of Notes in
aggregate principal amount equal to the amount theretofore
authorized for issuance and sale by the Company's Board of
Directors or a committee thereof, the Company will notify the
Agents thereof and will cease the issuance of Notes until such time
as (i) the issuance and sale of additional amounts of Notes have
been duly authorized and (ii) the Company has delivered an opinion
of counsel satisfactory to the Agents to such effect.
(n) The Company will not issue any Notes except as
have been duly authorized by all necessary corporate action on the
part of the Company.
(o) The Company will prepare, with respect to any
Notes to be sold through or to the Agents pursuant to this
Agreement, a pricing supplement with respect to such Notes in a
form previously approved by the Agents, will use its reasonable
best efforts to deliver (by telecopy or overnight express) final
copies of such pricing supplement to the relevant Agent or Agents,
as the case may be, in New York City by the close of business, New
York City time, on the applicable "trade date" with respect to such
Notes, but in no event later than 11:00 a.m., New York City time,
on the business day immediately following the "trade date" for such
Notes, and will file such pricing supplement pursuant to
Rule 424(b) under the Act not later than the applicable date and
time required by such Rule 424(b).
4. CONDITIONS OF THE OBLIGATIONS OF THE AGENTS. The
obligations of each Agent to solicit offers to purchase the Notes
as agent of the Company and the obligations of each Agent to
purchase Notes as principal pursuant to any Terms Agreement will be
subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements
of the Company's officers made in each certificate furnished
pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein
contained on its part to be performed and observed and to the
following additional conditions precedent:
(a) (i) No stop order suspending the effectiveness
of any Registration Statement shall be in effect and no proceedings
for that purpose shall have been instituted or threatened, (ii)
there shall have been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of
business, from that set forth in any Registration Statement or the
Prospectus as amended or supplemented to the date of any such
solicitation or agreement to purchase, (iii) there shall not have
occurred since the date of any such solicitation or agreement to
purchase any material adverse change in the financial markets in
the United States or any outbreak or escalation of hostilities or
other national or international calamity or crisis, the effect of
which makes it, in the judgment of the relevant Agent,
impracticable to
10
market the Notes or to enforce contracts for the sale of the Notes
and (iv) the rating assigned by any nationally recognized
securities rating agency to any debt securities of the Company as
of the date of any such solicitation or agreement to purchase shall
not have been lowered since that date and no such rating agency
shall have publicly announced that it has under surveillance or
review with possible negative implications, its rating of any debt
securities of the Company.
(b) At the Closing Date, the Agents shall have
received:
(i) The opinion, dated as of such date, of
Brobeck, Phleger & Harrison, counsel for the Company to the effect
that:
(A) This Agreement (and, if the
opinion is being given pursuant to Section 3(j) on account of the
Company having entered into a Terms Agreement, the applicable Terms
Agreement) has been duly authorized, executed and delivered by the
Company.
(B) Each of the Indentures has been
duly authorized, executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in accordance
with its terms, except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and (y) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability, and is
duly qualified under the Trust Indenture Act of 1939, as amended.
(C) Upon determination by the Pricing
Committee of the Board of Directors [or by a duly authorized
officer of the Company] of the precise terms of the issuance and
sale, up to $2,500,000,000 aggregate principal amount of the Notes
will have been duly authorized by all necessary corporate action on
the part of the Company and, when the Pricing Committee [or any
such officer, as the case may be,] so determines and the Notes are
executed and issued by the Company in accordance with the Senior
Indenture or Subordinated Indenture, as the case may be,
authenticated and delivered by or on behalf of the Senior Trustee
or Subordinated Trustee, as the case may be, in accordance with the
Senior Indenture or Subordinated Indenture, as the case may be, and
delivered to the account of and paid for by the purchasers, will be
valid and binding obligations of the Company, enforceable in
accordance with their respective terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally and (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of
general applicability, and will be entitled to the benefits of the
Senior Indenture or Subordinated Indenture, as the case may be.
(D) Each Registration Statement, and
any post-effective amendments thereto, are effective under the
Securities Act of 1933, and to the best of such counsel's
knowledge, no proceedings for a stop order are pending or
threatened under Section 8(d) of said Act.
(E) No authorization, consent,
approval of or filing with any governmental or regulatory body is
required to be obtained by the Company in connection with the
execution, delivery and performance of this Agreement or the
11
Indentures or the issuance and sale of the Notes, other than the
filing with and order of the Securities and Exchange Commission in
connection with the registration of the Notes under the Securities
Act of 1933, as amended, the qualification of the Indentures under
the Trust Indenture Act of 1939, as amended, and except that the
offer and sale of the Notes in certain jurisdictions may be subject
to the Blue Sky or securities laws of such jurisdictions.
(F) The execution, delivery and
performance of this Agreement and the Indentures by the Company and
the issuance and sale of the Notes will not contravene any
provision of applicable law or regulation of the State of
California or the United States, the General Corporation Law of the
State of Delaware or the restated certificate of incorporation or
bylaws of the Company or the articles of association or bylaws of
the Bank.
(G) The statements in the Prospectus
under the captions "Description of Medium-Term Notes" and
"Description of Notes" insofar as such statements constitute
summaries of the documents referred to therein, fairly present the
information called for with respect to such documents.
(H) The statements as to matters of
law or legal conclusions contained under the caption "Federal Tax
Considerations" in the Prospectus were correct as of the date the
Prospectus was filed with the Commission, and such statements
fairly present the matters and legal conclusions referred to
therein.
(I) Such counsel (1) believes that
each document filed pursuant to the Exchange Act (except as to
financial statements and other financial information included therein
as to which such counsel need not express any belief) and incorporated
by reference in the Prospectus complied when so filed as to form in
all material respects with the Exchange Act and the applicable
rules and regulations thereunder, (2) has no reason to believe that
(except as to financial statements and other financial information
included therein as to which such counsel need not express any
belief) any part of any Registration Statement or amendment thereto
if applicable (including the documents incorporated by reference
therein) filed with the Commission pursuant to the Act, when such
part became effective, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(3) believes that each Registration Statement and the Prospectus,
as amended or supplemented, if applicable (except as to financial
statements and other financial information included therein as to
which such counsel need not express any belief), comply as to form
in all material respects with the Act and the applicable rules and
regulations thereunder and (4) has no reason to believe that
(except as to financial statements and other financial information
included therein as to which such counsel need not express any
belief) any Registration Statement or the Prospectus, as amended or
supplemented, if applicable, contains any untrue statement of a
material fact or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
With respect to the matters set forth in (I)
above, Brobeck, Phleger & Harrison may state that such counsel's
belief is based upon participation in the preparation of each
Registration Statement and Prospectus (other than the documents
12
incorporated by reference in the Prospectus (the "Incorporated
Documents")) and any amendments and supplements thereto and review
and discussion of the contents thereof (including the Incorporated
Documents), but is without independent check or verification,
except as specified.
(ii) The opinion, dated as of such date of
the Chief Counsel of the Company to the effect that:
(A) The Company has been duly
incorporated, is validly existing in good standing under the laws
of the State of Delaware, is duly registered as a bank holding
company under the Bank Holding Company Act of 1956, and has all
requisite corporate power and authority under its articles of
incorporation and the laws of the United States and of the State of
Delaware to own, lease and operate its properties and conduct its
business as described in the Prospectus.
(B) The Bank has been duly organized
and is validly existing as a national banking association and
continues to hold a valid certificate to do business as a national
banking association under the laws of the United States; the Bank has
all requisite corporate power and authority to own, lease and operate
its properties and conduct its business as described in the
Prospectus; all of the issued and outstanding capital stock of the
Bank has been duly and validly issued and is fully paid and
non-assessable (subject, however, to the provisions of Section 55,
Title 12, United States Code); and all of the capital stock of the
Bank is owned by the Company, directly or indirectly, free and
clear of any mortgage, pledge, lien, encumbrance, claim or equity.
(C) To the best knowledge and
information of such counsel, there are no contracts, indentures,
mortgages, loan agreements, leases or other documents of a
character required to be described or referred to in any
Registration Statement or the Prospectus, as amended or
supplemented, or to be filed as exhibits thereto other than those
specifically described or referred to therein or in the documents
incorporated by reference therein or filed as exhibits thereto or
as exhibits to documents incorporated by reference therein, and the
description thereof or reference thereto was correct at the date
that the relevant Registration Statement, Prospectus or document
incorporated by reference in any Registration Statement or the
Prospectus, as the case may be, in each case as amended or
supplemented, which contains such description or reference was
filed with the Commission; provided, however, that such counsel
need not express any opinion regarding such documents to the extent
that they are required to be described or referred to in the
financial statements but not otherwise in any Registration
Statement or the Prospectus, as amended or supplemented.
(D) The statements as to matters of
law or legal conclusions contained under the caption "Supervision and
Regulation" in the Company's latest annual report on Form 10-K
which is incorporated by reference in the Prospectus were correct
as of the date such report was filed with the Commission and such
statements fairly present the matters and legal conclusions
referred to therein.
(E) To the knowledge of such counsel,
the execution, delivery and performance of this Agreement, the
Senior Indenture and the
13
Subordinated Indenture by the Company and the issuance and sale of
the Notes will not contravene any provision of any agreement or
other instrument binding upon the Company or the Bank.
(iii) The opinion of Brown & Wood, counsel for
the Agents, dated as of such date, with respect to the issuance and
sale of the Notes, the Indentures, the Registration Statements and
the Prospectus, as amended or supplemented, and other related
matters as the Agents may reasonably require; and the Company shall
have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
On the Settlement Date with respect to any Terms Agreement, the
Agent or Agents, as the case may be, party to such Terms Agreement
shall have received such opinions, dated as of such Settlement
Date, and rendered by such counsel, as called for by such Terms
Agreement.
(c) On the Closing Date and at each Settlement
Date with respect to any Terms Agreement, if called for by such
Terms Agreement, the Company shall have furnished to the Agents or
the Agent, as the case may be, party to such Terms Agreement a
certificate of the Company, signed by the Chairman of the Board,
the President, any Vice Chairman or any Vice President, dated as of
the Closing Date or such Settlement Date, as the case may be, to
the effect that the signer of such certificate has examined each
Registration Statement and Prospectus, as amended or supplemented,
and this Agreement and that:
(i) the representations and warranties of
the Company in this Agreement are true and correct in all material
respects on and as of the date of such certificate, and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to
the date of such certificate;
(ii) no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii) since the respective dates as of which
information is given in any Registration Statement or the
Prospectus, as amended or supplemented, there has been no material
adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, from that set forth in
any Registration Statement and the Prospectus, as amended or
supplemented.
(d) On the Closing Date, and at each Settlement
Date with respect to any Terms Agreement, if called for by such
Terms Agreement, KPMG Peat Marwick LLP shall have furnished to the
Agents or the Agent, as the case may be, party to such Terms
Agreement a letter or letters, dated as of the Closing Date or such
Settlement Date, as the case may be, in form and substance
satisfactory to the Agents or such Agent, as the case may be,
confirming that they are independent accountants within the meaning
of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder, and 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 in
or incorporated by reference into the Registration Statements and
the Prospectus, as amended or supplemented.
14
(e) At the Closing Date and at each Settlement
Date with respect to any Terms Agreement, the Company shall have
furnished to the Agents or the Agent, as the case may be, party to
such Terms Agreement such further information, certificates and
documents as the Agents or such Agent, as the case may be, may
reasonably request.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The Company
agrees to indemnify and hold harmless each Agent and each person,
if any, who controls such Agent within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
or investigations in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement as originally filed or
in any amendment thereof, or in any prospectus subject to
completion, or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability, action or investigation; provided, however, that
the Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information concerning such Agent furnished
to the Company by such Agent specifically for use therein. This
indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Agent agrees, severally and not jointly,
to indemnify and hold harmless the Company, each person, if any,
who controls the Company within the meaning of either the Act or
the Exchange Act, each director of the Company and each officer of
the Company who signs any Registration Statement or any amendment
thereto to the same extent as the foregoing indemnity from the
Company to such Agent, but only insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which
was made therein in reliance upon and in conformity with written
information concerning such Agent furnished to the Company by such
Agent specifically for use therein. This indemnity agreement will
be in addition to any liability which such Agent may otherwise
have.
(c) Promptly after receipt by an indemnified party
under this Section 5 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 5, notify
the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 5. In case any such action is
brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying
party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal
15
defenses and to otherwise participate in the defense of such action
on behalf of such indemnified party or parties. Upon receipt of
notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not
be liable to such indemnified party under this Section 5 for any
legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to any
local counsel), which counsel shall be approved (x) in the case of
paragraph (a) of this Section 5, by Merrill Lynch or, if Merrill
Lynch is not an indemnified party, by the Agents that are
indemnified parties, representing the indemnified parties under
such paragraph (a) who are parties to such action or (y) in the
case of paragraph (b) of this Section 5, by the Company,
representing the indemnified parties under such paragraph (b) who
are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after
notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
All fees and expenses of such counsel shall be reimbursed as they
are incurred. Notwithstanding the foregoing, no indemnifying party
shall be liable hereunder to the indemnified party for any
settlement of any proceeding effected by such indemnified party
without the written consent of the indemnifying party.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification provided
for in Section 5(a) is due in accordance with its terms but is for
any reason held by a court to be unavailable from any indemnifying
party on grounds of policy or otherwise, each indemnifying party
shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the
indemnified party may be subject in such proportions so that each
Agent, severally and not jointly, is responsible for that portion
represented by the percentage that the aggregate commissions
received by such Agent pursuant to Section 2 from the sale of the
Notes that were the subject of the claim for indemnification bears
to the aggregate principal amount of the Notes sold to or through
such Agent that were the subject of the claim for indemnification
and the Company is responsible for the balance; provided, that no
person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each person who controls an Agent
within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as the Agent. For purposes of this
Section 5, each person who controls the Company within the meaning
of either the Act or the Exchange Act, each director of the Company
and each officer of the Company who signs any Registration
Statement or any amendment thereto shall have the same rights to
contribution as the Company. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties
under this Section 5(d), notify such party or parties from whom
contribution may be sought of the commencement thereof (it being
understood that any notice given pursuant to the first sentence of
Section 5(c) shall be sufficient for this purpose), but the
omission to notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any
other obligation it or they may have hereunder or otherwise than
under this Section 5(d).
16
6. POSITION OF THE AGENTS. In soliciting offers to
purchase the Notes, each Agent is acting solely as agent for the
Company, and not as principal. An Agent shall make reasonable
efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Notes has been solicited by such
Agent and accepted by the Company, but such Agent shall not have
any liability to the Company in the event any such purchase is not
consummated for any reason.
7. TERMINATION. This Agreement may be terminated at
any time either by the Company or, as to any Agent, by the Company
or such Agent upon the giving of written notice of such termination
to the other party hereto. Any Terms Agreement may be terminated
by the Agent party thereto, immediately upon notice to the Company,
at any time prior to the Settlement Date relating to a Terms
Agreement if, during the period beginning on the date of such Terms
Agreement and ending on such Settlement Date or, in the case of
clause (i) below, since the respective dates as of which
information is given in the Registration Statements, as amended,
(i) there has been any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries, considered
as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there shall have occurred any material adverse
change in the financial markets in the United States or any
outbreak or escalation of hostilities or other national or
international calamity or crisis the effect of which makes it, in
the judgment of the relevant Agent, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if
trading generally on either the New York Stock Exchange or the
American Stock Exchange shall have been suspended, or minimum or
maximum prices or maximum ranges for prices shall have been fixed
by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium shall have
been declared by either Federal or New York authorities or if a
banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign
currency or currencies in which the Notes are denominated or
payable, or (iv) if the rating assigned by any nationally
recognized securities rating agency to any debt securities of the
Company as of the date of any applicable Terms Agreement shall have
been lowered since that date or if such rating agency shall have
publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any debt securities
of the Company.
8. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and
other statements of the Company or its officers and of each Agent
set forth in or made pursuant to this Agreement or any Terms
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of an Agent or the Company or
any of the officers, directors or controlling persons referred to
in Section 5 hereof, and will survive delivery of and payment for
the Notes. The provisions of Sections 3(g) (other than the
provisions of Section 3(g)(v) (if applicable) in connection with
any Terms Agreement terminated pursuant to clause (ii) or (iii) of
Section 7), 5 and 6 hereof shall survive the termination or
cancellation of this Agreement or the Terms Agreement.
9. NOTICES. All communications hereunder will be in
writing and effective only on receipt, and, if sent to Merrill
Lynch, will be mailed, delivered or telecopied and confirmed to it
at North Tower, 10th Floor, World Financial Center, New York,
New York 10281-1310, Attention: Product Management, (telecopier:
(212) 449-2234); if sent to CS First Boston Corporation, will be
mailed, delivered or telegraphed and confirmed to it at Short and
Medium Term Finance, Park Avenue Plaza, New York, New York 10055,
Attention: Richard W. Kurz, Director (telecopier: (212) 318-
1498); if sent to Goldman, Sachs, will be mailed, delivered or
telegraphed and confirmed to it at
17
85 Broad Street, New York, New York 10004, Attention: Registration
Department Credit Department, Credit Control-Medium Term Notes
(telecopier: (212) 357-8680); if sent to Lehman Brothers, will be
mailed, delivered, or telegraphed and confirmed to it at 3 World
Financial Center, New York, New York 10285, Attention: Medium-Term
Note Department, 12th Floor (telecopier: (212) 528-1718 or (212)
619-7165 (over 10 pages); if sent to Morgan Stanley, will be
mailed, delivered or telegraphed and confirmed to it at 1251 Avenue
of the Americas, New York, New York 10020, Attention: Manager,
Credit Department (telecopier: (212) 703-4575), with a copy to it
at 1221 Avenue of the Americas, New York, New York 10020,
Attention: Manager, Short and Medium-Term Finance Department
(telecopier: (212) 764-7490); if sent to Salomon Brothers, will be
mailed, delivered or telegraphed and confirmed to it at Seven World
Trade Center, New York, New York 10048, Attention: Medium-Term
Note Department, 31st Floor (telecopier: (212) 783-2274); or, if
sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 444 Market Street, San Francisco, California
94163, Attention: Senior Vice President and Treasurer (telecopier:
(415) 989-3851).
10. SUCCESSORS. This Agreement and any Terms Agreement
will inure to the benefit of and be binding upon the parties hereto
and thereto and their respective successors and the officers and
directors and controlling persons referred to in Section 5 hereof,
and no other person will have any right or obligation hereunder.
11. APPLICABLE LAW. This Agreement and any Terms
Agreement will be governed by and construed in accordance with the
laws of the State of New York.
18
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent a
binding agreement between the Company and the Agents.
Very truly yours,
WELLS FARGO & COMPANY
By:_______________________
Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:__________________________________
CS FIRST BOSTON CORPORATION
By:__________________________________
_____________________________________
(GOLDMAN, SACHS & CO.)
LEHMAN BROTHERS INC.
By:__________________________________
MORGAN STANLEY & CO. INCORPORATED
By:__________________________________
SALOMON BROTHERS INC
By:__________________________________
19
EXHIBIT A
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES
AND
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
DUE FROM NINE MONTHS TO 12 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
[Name of Agent]
[Address of Agent]
Attention: ________________________
Re: DISTRIBUTION AGREEMENT DATED _____________________, 1995
Subject to the terms and conditions of the Distribution
Agreement, the undersigned agrees to purchase Medium-Term Notes in
the amount and with the terms specified below:
Principal Amount: $_______________________
(or principal amount of foreign currency)
Ranking: Senior Note ( ) Subordinated Note ( )
(check one)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
First Interest Reset Date:
Spread, if any:
Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Dates:
Calculation Agent:
A-1
If Redeemable:
Earliest Redemption Date:
Redemption Price:
Annual Redemption Price Reduction:
If Repayable:
Repayment Date(s):
Repayment Price:
Original Issuance Date:
Stated Maturity Date:
Purchase Price: %
Settlement Date and Time:
Place of Settlement:
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Additional Terms:
[The following documents referred to in the Distribution Agreement
shall be required as a condition to settlement:
Officer's Certificate to the effect called for by
Section 3(i) of the Distribution Agreement.
Legal Opinions to the same effect called for by
Section 3(j) of the Distribution Agreement.
Comfort Letter to the same effect called for by
Section 3(k) of the Distribution Agreement.
Stand-off Agreement as provided by Section 3(l) of
the Distribution Agreement.]
Arrangement for Payment
of Counsel for Agent:
[NAME OF AGENT]
By:_______________________
Title:
Accepted:
WELLS FARGO & COMPANY
By_________________________
Title:
A-2
EXHIBIT B
ADMINISTRATIVE PROCEDURES
B-1