EXHIBIT 1(d)
WELLS FARGO & COMPANY
$2,500,000,000
MEDIUM-TERM NOTES
AND
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
DUE FROM 9 MONTHS TO 12 YEARS FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
August __, 1995
Merrill Lynch & Co. CS First Boston Corporation
Merrill Lynch, Pierce, Park Avenue Plaza
Fenner & Smith Incorporated New York, N.Y. 10055
World Financial Center
North Tower, 10th Floor
New York, N.Y. 10281-1310
Lehman Brothers
Goldman, Sachs & Co. Lehman Brothers Inc
85 Broad Street 3 World Financial Center, 12th Floor
New York, N.Y. 10004 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 9 Months to 12 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 33-60573), 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 dated August __ 1995
and prospectus supplement dated August __, 1995 relating to the
Notes in the form transmitted for filing with the Commission
pursuant to Rule 424(b) under the Act on August __, 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
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this Agreement, or the date of such Prospectus, as the case
may be; and any reference 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 (if
applicable), 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.
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(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
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,
if requested by such Agent, 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
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the Agents by the Company. Such Terms Agreement 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.
(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 transmitted 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, 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
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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 Notes
pursuant to this Agreement and will arrange for the determination
of the legality of the Notes for purchase by institutional
investors.
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(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 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
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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 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).
9
(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
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
10
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 the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium, liquidation,
conservatorship, readjustment of debt, fraudulent transfer and
other similar laws affecting the rights of creditors generally,
and the discretion of any court of competent jurisdiction in
awarding equitable remedies, including, without limitation,
specific performance or injunctive relief, and the effect of
general principles of equity embodied in California statutes and
common law, and has been duly qualified under the Trust Indenture
Act of 1939, as amended.
(C) Upon
determination by the Pricing Committee of the Company or by a
duly authorized officer of the Company of the precise terms of
the issuance and sale, up to an additional $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 the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, arrangement, moratorium, liquidation,
conservatorship, readjustment of debt, fraudulent transfer and
other similar laws affecting the rights of creditors generally,
and the discretion of any court of competent jurisdiction in
awarding equitable remedies, including, without limitation,
specific performance or injunctive relief, and the effect of
general principles of equity embodied in California statutes and
common law, and will be entitled to the benefits of the Senior
Indenture or Subordinated Indenture, as the case may be. Such
counsel may state that the aggregate principal amount of the
Notes which may be authenticated and delivered under the
Indentures shall be reduced (but not below the amount of any
Notes then outstanding) dollar for dollar for any other series of
notes or preferred stock issued after the date of such opinion
under the Registration Statements.
11
(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 with respect
to any Registration Statement.
(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 Indentures or the issuance and sale of the
Notes, other than the filing with and order of the Commission in
connection with the registration of the Notes under the Act, the
qualification of the Indentures 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.
(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 under the caption
"Federal Tax Considerations" in the Prospectus were correct as of
the date thereof, 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 schedules and other
financial information included therein as to which such counsel
need not express any belief) and incorporated by reference in the
Prospectus complied as to form when so filed with the Commission
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 schedules 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 schedules 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 schedules and other financial information included
therein as to which such counsel need not express any belief)
12
any of the Registration Statements 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 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,
as amended, 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 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 on 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.
13
(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 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 contained in this Agreement 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 or any post-effective
amendment thereto 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 or the Prospectus,
as amended or supplemented and including all documents
incorporated by reference therein.
14
(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.
(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
15
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 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) in
connection with representing the indemnified parties under
paragraph (a) or (b), as the case may be, of this Section 5 who
are parties to such action, 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 or (y) in the case of paragraph (b)
of this Section 5, by the Company), (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 all the Notes 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
16
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).
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
17
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: MTN 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
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,
32nd 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 9 MONTHS TO 12 YEARS FROM DATE OF ISSUE
TERMS AGREEMENT
[Name of Agent] [Date]
[Address of Agent]
Attention: _____________________
Re: Distribution Agreement dated August __, 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 ( )
Form: Certificated ( ) Book-Entry ( )
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Index Maturity:
Initial Interest Rate:
Spread, if any:
Spread Multiplier, if any:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
First Interest Reset Date:
Interest Reset Frequency (specify
months if annual or semi-annual):
Interest Payment Period:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Calculation Agent:
A-1
If Redeemable:
Earliest Redemption Date:
Initial Redemption Price: ___%
Annual Redemption Price Reduction: ___%
Sinking Fund Redemption Dates:
Sinking Fund Amounts: ___%
If Repayable:
Repayment Date(s):
Repayment Price:
Original Issuance Date:
Stated Maturity:
Public Offering Price: ___%
Purchase Price: ___%
Settlement Date and Time:
Place of Settlement:
Currency of Denomination (if other than U.S. dollars):
Denominations (if currency is other than U.S. dollars):
Currency of Payment (if other than U.S. dollars):
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
WELLS FARGO & COMPANY
ADMINISTRATIVE PROCEDURES
Explained below are the administrative
procedures and specific terms of the offering of Senior Notes or
Subordinated Notes (as such terms and other capitalized terms
used in these Administrative Procedures and not defined herein
are defined in the Distribution Agreement referred to below or,
if not defined in the Distribution Agreement, as defined in the
Notes), on a continuous basis by Wells Fargo & Company, a
Delaware corporation (the "Company"), pursuant to the
Distribution Agreement, dated _________, 1995 (the "Distribution
Agreement") between the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, CS First Boston
Corporation, Goldman, Sachs & Co., Lehman Brothers Inc.
(including its affiliate Lehman Government Securities Inc.),
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc
(individually, an "Agent" and, collectively, the "Agents").
Notes will bear interest at a fixed rate (the "Fixed
Rate Notes"), which may be zero in the case of certain original
issue discount notes (the "OID Notes"), or at floating rates (the
"Floating Rate Notes"). The Notes will be issued in U.S. dollars
or other currencies, including composite currencies such as the
European Currency Unit (the "Specified Currency"). Each Note will
be represented by either a Global Security (as defined below)
delivered to the Trustee, as agent for The Depository Trust
Company ("DTC"), and recorded in the book-entry system maintained
by DTC (a "Book Entry Note") or a certificate delivered to the
holder thereof or a person designated by such holder (a
"Certificated Note"). Except in limited circumstances, an owner
of a Book-Entry Note will not be entitled to receive a
Certificated Note. References to "principal" of the Notes shall
be deemed to include, unless the context otherwise requires, a
reference to premium, if any, on the Notes.
Book-Entry Notes will be issued in accordance
with the administrative procedures set forth in Part I hereof as
they may subsequently be amended as the result of changes in
DTC'S operating procedures, and Certificated Notes will be issued
in accordance with the administrative procedures set forth in
Part II hereof. Unless otherwise defined herein, terms defined in
the Indenture or the Notes shall be used herein as therein
defined.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the
Book-Entry Notes for eligibility in the book-entry system
maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in
accordance with its respective obligations under a Letter of
Representation (the "Letter of Representation") from the Company
and the Trustee to DTC, and a Medium-Term Note Certificate
Agreement between the Trustee and DTC, as amended (the
"Certificate Agreement"), and its obligations as a participant in
DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance:
On any date of settlement (as defined under "Settlement" below)
for one or more Book-Entry Notes, the Company will issue a single
global security in fully registered form without coupons (a
"Global Security") representing up to U.S. $200,000,000 (or the
equivalent thereof in other currencies or composite currencies)
aggregate principal amount of all such Notes that have the same
Stated Maturity, redemption or repayment provisions, Interest
Payment Dates, Original Issuance Date, and other terms
(collectively, the "Terms"). Each Global Security will be dated
and issued as of the date of its authentication by the Trustee.
Each Global Security will bear interest from the Original
Issuance Date or from the most recent Interest Payment Date to
which interest has been paid or duly provided for. Any Global
Security (or any portion thereof) issued subsequently upon
exchange of a Global Security, or in lieu of a destroyed, lost or
stolen Global Security, will bear interest from the most recent
Interest Payment Date to which interest has been paid or duly
provided for on the predecessor Global Security or Securities (or
if no such payment or provision has been made, the Original
Issuance Date of the predecessor Global Security), regardless of
the date of authentication of such subsequently issued Global
Security. No Global Security will represent any Certificated
Note. Notes issued in book-entry form in excess of $200,000,000
(or the equivalent thereof in other currencies or composite
currencies) aggregate
2
principal amount and otherwise required to
be represented by the same Global Note will instead be
represented by two or more Global Notes which shall all be
assigned the same CUSIP number.
Owners of beneficial interests in Global Notes will be entitled
to physical delivery of Certificated Notes equal in principal
amount to their respective beneficial interest only upon certain
limited circumstances described in the Prospectus.
Identification Numbers:
The Company has arranged with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP Service Bureau") for
the reservation of a series of CUSIP numbers (including tranche
numbers) for each of the Notes, each of which series consists of
approximately 900 CUSIP numbers and relates to Global Securities
representing the Book-Entry Notes. The Company has obtained from
the CUSIP Service Bureau a written list of each series of
reserved CUSIP numbers and has delivered to the Trustee and DTC
the written list of 900 CUSIP numbers of each such series. The
Trustee will assign CUSIP numbers to Global Securities as
described below under Settlement Procedure "B". DTC will notify
the CUSIP Service Bureau periodically of the CUSIP numbers that
the Trustee has assigned to Global Securities. At any time when
fewer than 100 of the reserved CUSIP numbers of either series
remain unassigned to Global Securities, the Trustee shall so
advise the Company and, if it deems necessary, the Company will
reserve additional CUSIP numbers for assignment to Global
Securities representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a list of
such additional CUSIP numbers to the Trustee and DTC.
Registration:
Unless otherwise specified by DTC, each Global Security will be
registered in the name of Cede & Co., as nominee for DTC, on the
Security register maintained under the Indenture. The beneficial
3
owner of a Book-Entry Note (or one or more indirect participants
in DTC designated by such owner) will designate one or more
participants in DTC with respect to such Note (the
"Participants") to act as agent or agents for such owner in
connection with the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with instructions
provided by such Participants, a credit balance with respect to
such beneficial owner in such Note in the accounts of such
Participants. The ownership interest of such beneficial owner in
such Note will be recorded through the records of such
Participants or through the separate records of such Participants
and one or more indirect participants in DTC.
Transfers:
Transfers of a Book-Entry Note will be accomplished by book
entries made by DTC and, in turn, by Participants (and in certain
cases, one or more indirect participants in DTC) acting on behalf
of beneficial transferors and transferees of such Note.
Exchanges:
The Trustee may deliver to DTC and the CUSIP Service Bureau at
any time a written notice of consolidation specifying (i) the
CUSIP numbers of two or more Outstanding Global Securities that
represent Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a date, occurring
at least thirty days after such written notice is delivered and
at least thirty days before the next Interest Payment Date for
such Book-Entry Notes, on which such Global Securities shall be
exchanged for a single replacement Global Security and (iii) a
new CUSIP number to be assigned to such replacement Global
Security. Upon receipt of such a notice, DTC will send to its
Participants (including the Trustee) a written reorganization
notice to the effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau a written notice setting forth such
4
exchange date and the new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the Global Securities to
be exchanged will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Securities for a
single Global Security bearing the new CUSIP number, and the
CUSIP numbers of the exchanged Global Securities will, in
accordance with CUSIP Service Bureau procedures, be cancelled and
not immediately reassigned. Notwithstanding the foregoing, if the
Global Securities to be exchanged exceed U.S. $200,000,000 (or
the equivalent thereof in other currencies or composite
currencies) in aggregate principal amount, one Global Security
will be authenticated and issued to represent each U.S.
$200,000,000 (or the equivalent thereof in other currencies or
composite currencies) in aggregate principal amount of the
exchanged Global Security and an additional Global Security will
be authenticated and issued to represent any remaining principal
amount of such Global Securities (see "Denominations" below).
Maturities:
Each Book-Entry Note will mature on a date more than nine months
and not more than twelve years from date of issue.
Notice of Redemption Dates:
The Trustee will give notice to DTC prior to each redemption date
or repayment date (as specified in the Note), if any, at the time
and in the manner set forth in the Letter of Representation.
Denominations:
Unless otherwise provided in the applicable Pricing Supplement,
Book-Entry Notes will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an integral
multiple of U.S. $1,000. Global Securities will be denominated in
principal amounts not in excess of U.S. $200,000,000 (or the
equivalent thereof in other currencies or composite currencies)
aggregate principal amount. If one or more Book-Entry Notes
having
5
an aggregate principal amount in excess of $200,000,000
(or the equivalent thereof in one or more foreign or composite
currencies) aggregate principal amount and would, but for the
preceding sentence, be represented by a single Global Security,
then one Global Security will be issued to represent each U.S.
$200,000,000 (or the equivalent thereof in one or more foreign or
composite currencies) in aggregate principal amount of such
Book-Entry Note or Notes and an additional Global Security will
be issued to represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the Global
Securities representing such Book-Entry Note or Notes shall be
assigned the same CUSIP number.
Interest:
General. Interest on each Note will accrue from the date and at
the rate, and will be payable at the times and in the manner, set
forth in such Note. Standard & Poor's Corporation will use the
information received in the pending deposit message described
under Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other information
regarding the related Global Security in the appropriate weekly
bond report published by Standard & Poor's Corporation.
Notice of Interest Payment and Record Dates. On the first
Business Day of January, April, July and October of each year,
the Trustee will deliver to the Company and DTC a written list of
Regular Record Dates and Interest Payment Dates that will occur
with respect to Book-Entry Notes during the six-month period
beginning on such first Business Day.
Payments of Principal and Interest:
Payments of Interest. Promptly after each Record Date, the
Trustee will deliver to the Company and DTC a written notice
specifying by CUSIP number the amount of interest to be paid on
each Global Security on the following
6
Interest Payment Date (other than an Interest Payment Date
coinciding with maturity or any earlier redemption or repayment
date) and the total of such amounts. DTC will confirm the amount
payable on each such Global Security on such Interest Payment
Date by reference to the daily bond reports published by Standard
& Poor's Corporation. The Company will pay to the Trustee, as
paying agent, the total amount of interest due on such Interest
Payment Date (other than at maturity), and the Trustee will pay
such amount to DTC at the times and in the manner set forth below
under "Manner of Payment".
Payments at Maturity or Upon Redemption or Repayment. On or about
the first Business Day of each month, the Trustee will deliver to
the Company and DTC a written list of principal and interest to
be paid on each Global Security maturing either at maturity or on
a redemption or repayment date in the following month. The
Company and DTC will confirm the amounts of such principal and
interest payments with respect to each such Global Security on or
about the fifth Business Day preceding the Stated Maturity Date
or redemption or repayment date of such Global Security. The
Company will pay to the Trustee, as the paying agent, the
principal amount of such Global Security, together with interest
due at such Maturity Date or redemption or repayment date. The
Trustee will pay such amounts to DTC at the times and in the
manner set forth below under "Manner of Payment."
Payments Not on Business Days. If any Interest Payment Date or
the Stated Maturity or redemption or repayment date for any
Book-Entry Note would fall on a day that is not a Business Day
with respect to such Note, such Interest Payment Date, Stated
Maturity or redemption or repayment date will be the next
following day that is a Business Day with respect to such Note,
except that, in the case of a Book-Entry LIBOR
7
Note, if such Business Day is in the next succeeding calendar
month, such Interest Payment Date, Maturity Date or redemption or
repayment date will be the immediately preceding day that is a
Business Day with respect to such Note.
Promptly after payment to DTC of the principal and interest due
at the Stated Maturity or redemption or repayment date of a
Global Security, the Trustee will cancel such Global Security in
accordance with the terms of the Indenture and deliver it to the
Company with a certificate of cancellation.
Manner of Payment. Subject to the section of these Administrative
Procedures entitled "Payments not on Business Days," the total
amount of any principal and interest due on Global Securities on
any Interest Payment Date or at maturity or upon redemption or
repayment shall be paid by the Company to the Trustee in funds
available for immediate use by the Trustee not later than 10:30
A.M. (New York City time) on such date. The Company will make
such payment on such Global Securities by instructing the Trustee
to withdraw funds from an account maintained by the Company at
the Trustee. The Company will confirm such instructions in
writing to the Trustee. Prior to 11:30 A.M. (New York City time)
on each Stated Maturity or redemption or repayment date or as
soon as possible thereafter, the Trustee will pay by separate
wire transfer (using Fed-wire message entry instructions in a
form previously specified by DTC) to an account at the Federal
Reserve Bank of New York previously specified by DTC, in funds
available for immediate use by DTC, each payment of interest or
principal (together with interest thereon) due on Global
Securities on any Stated Maturity or redemption or repayment
date. On each Interest Payment Date or, if any such date is not a
Business Day, as soon as possible thereafter, interest payments
shall be made to DTC in same day funds in accordance with
existing
8
arrangements between the Trustee and DTC. Thereafter on
each such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in funds
available for immediate use to the respective Participants in
whose names the Book-Entry Notes represented by such Global
Securities are recorded in the book-entry system maintained by
DTC. Neither the Company nor the Trustee shall have any
responsibility or liability for the payment by DTC to such
Participants of the principal of and interest on the Book-Entry
Notes.
Withholding Taxes. The amount of any taxes required under
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments directly to the beneficial
owner of such Note.
Preparation of Pricing Supplement:
If any offer to purchase a Book-Entry Note is accepted by or on
behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of such
Note and will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act.
The Company shall use its reasonable best efforts to send such
Pricing Supplement by telecopy or overnight express (for delivery
by the close of business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time, on the Business
Day following the applicable trade date) to the Agent which made
or presented the offer to purchase the applicable Note (in such
capacity, the "Offering Agent") at the following applicable
address.
If to Merrill Lynch & Co.:
Merrill Lynch & Co.--Tritech Services
40 Colonial Drive
9
Piscataway, New Jersey 08854
Attention: Prospectus Operations
Susannah Putnam
Telephone: (908) 885-2769
Telecopier: (908) 885-2774/5/6
If to CS First Boston Corporation:
CS First Boston Corporation
5 World Trade Center
New York, New York 10048
Attention: Joan Bryan
Telephone: 212/322-5105
Fax: 212/898-3726
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Medium-Term Note Trading
Fax: 212/902-0658
If to Lehman Brothers Inc.:
By telecopy to:
Lehman Brothers Inc.
c/o ADP
Prospectus Services
536 BroadHollow Road
Melville, New York 11747
Attention: Mike Ward
Telecopy: 516/249-7942
Telephone: 516/254-7106
and by hand to:
Lehman Brothers Inc.
3 World Financial Center, 9th Floor
New York, New York 10285-0900
Attention: Brunnie Vazquez
Telephone: 212/526-8400
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, New York 10020
Attention: Medium-Term Note Trading
Desk, Carlos Cabrera
Fax: 212/764-7490
10
If to Salomon Brothers Inc:
Salomon Brothers Inc
8800 Hidden River Parkway
Tampa, Florida 33637
Attention: Enrique Castro
Telephone: 813/558-7165
Fax: 813/558-4123
For record-keeping purposes, one copy of each Pricing Supplement
shall also be mailed to each Agent at the address for notices set
forth in the Distribution Agreement unless delivery to such
address is otherwise expressly required above.
In each instance that a Pricing Supplement is prepared, the
Offering Agent will provide a copy of such Pricing Supplement
(and, unless the Prospectus has been previously delivered, a copy
of the Prospectus) to each investor or purchaser of the relevant
Notes or its agent. Pursuant to Rule 434 ("Rule 434") of the
Securities Act of 1933, as amended, the Pricing Supplement may be
delivered separately from the Prospectus.
Settlement:
The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and issuance
of the Global Security representing such Note shall constitute
"settlement" with respect to such Note. All offers accepted by
the Company will be settled within three Business Days, or at
such time as the purchaser, the applicable Agent and the Company
shall agree, pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to settlement on
another day, which shall be no earlier than the next Business
Day. If procedures "A" and "B" of the applicable Settlement
Procedures with respect to a particular offer are not completed
on or before the time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled until the
Business Day following
11
the completion of settlement procedures "A" and "B" or such later
date as the purchaser and the Company shall agree.
The foregoing settlement procedures may be modified with respect
to any purchase of Notes by an Agent as principal if so agreed by
the Company and such Agent.
Settlement Procedures:
Settlement Procedures with regard to each Book-Entry Note sold by
the Company to or through an Agent (unless otherwise specified
pursuant to a Terms Agreement, as defined in the Distribution
Agreement), shall be as follows:
A. The Offering Agent will advise the
Company by telephone that such Note
is a Book-Entry Note and of the
following settlement information:
1. Principal amount, and, if not
denominated in U.S. dollars,
authorized denominations and
currency of payment,
Authorized Denomination and
Specified Currency.
2. Stated Maturity.
3. In the case of a Fixed Rate
Book-Entry Note, the Interest
Rate, or in the case of a
Floating Rate Book-Entry Note,
the Initial Interest Rate (if
known at such time), Interest
Payment Date(s), Interest
Payment Period, Interest Rate
Basis, Index Maturity, First
Interest Reset Date, Interest
Reset Frequency, Spread or
Spread Multiplier (if any),
Minimum Interest Rate (if
any), and Maximum Interest
Rate (if any).
4. Redemption or repayment
provisions, if any.
5. Settlement date and time
(Original Issuance Date).
12
6. Price.
7. The Offering Agent's
commission, if any, determined
as provided in the
Distribution Agreement.
8. Whether the Note is an OID
Note, and if it is an OID
Note, the total amount of OID,
the yield to maturity, and the
initial accrual period OID.
9. Any other applicable Terms.
B. The Company will advise the Trustee
by telephone or electronic trans-
mission (confirmed in writing at
any time on the same date) of the
information set forth in Settlement
Procedure "A" above. The Trustee
will then assign a CUSIP number to
the Global Security representing
such Note and will notify the
Company and such Agent of such
CUSIP number by telephone as soon
as practicable. The Company will
also advise the Offering Agent of
the CUSIP number assigned to the
Global Security.
C. The Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the
following settlement information to DTC, the Offering
Agent and Standard & Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment
Date for such Note, the number
of days by which such date
succeeds the related DTC
Record Date (which Date and,
in the case of all other
Notes, shall be the Regular
Record Date as defined in the
Note) and, if known, amount of
interest payable on such
Initial Interest Payment Date.
13
3. The CUSIP number of the Global
Security representing such
Note.
4. Whether such Global Security
will represent any other Book-
Entry Note (to the extent
known at such time).
5. The number of Participant
accounts to be maintained by
DTC on behalf of the Offering
Agent and the Trustee.
D. The Trustee will complete and
authenticate the Global Security
representing such Note.
E. DTC will credit such Note to the
Trustee's participant account at
DTC.
F. The Trustee will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Note to the Trustee's participant
account and credit such Note to
such Offering Agent's participant
account and (ii) debit the Offering
Agent's settlement account and
credit the Trustee's settlement
account for an amount equal to the
price of such Note less the
Offering Agent's commission, if
any. The entry of such a deliver
order shall constitute a
representation and warranty by the
Trustee to DTC that (a) the Global
Security representing such Book-
Entry Note has been issued and
authenticated and (b) the Trustee
is holding such Global Security
pursuant to the Medium Term Note
Certificate Agreement between the
Trustee and DTC.
G. Unless such Agent purchased such
Note as principal, such Agent will
enter an SDFS deliver order through
DTC's Participant Terminal System
instructing DTC (i) to debit such
Note to such Agent's participant
14
account and credit such Note to the
participant accounts of the
Participants with respect to such
Note and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of such Agent
for an amount equal to the price of
such Note.
H. Transfers of funds in accordance
with SDFS deliver orders described
in Settlement Procedures "F" and "G"
will be settled in accordance with
SDFS operating procedures in effect
on the settlement date.
I. The Trustee will credit to the
account of the Company maintained
at the Trustee in funds available
for immediate use in the amount
transferred to the Trustee in
accordance with Settlement
Procedure "F".
J. Unless such Offering Agent
purchased such Note as principal
such Offering Agent will confirm
the purchase of such Note to the
purchaser either by transmitting to
the Participants with respect to
such Note a confirmation order or
orders through DTC's institutional
delivery system or by mailing a
written confirmation to such
purchaser.
K. Monthly, the Trustee will send to
the Company a statement setting
forth the principal amount of Notes
outstanding as of that date under
the Indenture and setting forth a
brief description of any sales of
which the Company has advised the
Trustee but which have not yet been
settled.
Settlement Procedures Timetable:
For sales by the Company of Book-Entry Notes to or through an
Agent (unless otherwise specified pursuant to a Terms Agreement)
for settlement on the first Business Day after the sale date,
Settlement Procedures "A" through "J"
15
set forth above shall be completed as soon as possible following
the trade but not later than the respective times (New York City
time) set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the trade date
or within one hour following
the trade
B 12:00 Noon on the trade date
or within one hour following
the trade
C No later than the close of
business on the trade date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement
date
F-G 2:00 P.M. on settlement date
H 4:00 P.M. on settlement date
I-J 5:00 P.M. on settlement date
Settlement Procedure "H" is subject to extension in accordance
with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or cancelled,
the Trustee, after receiving notice from the Company or such
Agent, will deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no later than
5:00 P.M., New York City time, on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note pursuant to Settlement
Procedure "F", the Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as practicable a withdrawal
message instructing DTC to debit such Note to the Trustee's
participant account, provided that the Trustee's participant
account contains a principal amount of the Global Security
representing such Note that is at least
16
equal to the principal amount to be debited. If a withdrawal
message is processed with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee will mark such
Global Security "cancelled," make appropriate entries in the
Trustee's records and send such cancelled Global Security to the
Company. The CUSIP number assigned to such Global Security shall,
in accordance with CUSIP Service Bureau procedures, be cancelled
and not immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, the Trustee
will exchange such Global Security for two Global Securities, one
of which shall represent such Book-Entry Note or Notes and shall
be cancelled immediately after issuance and the other of which
shall represent the remaining Book-Entry Notes previously
represented by the surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely paid
to the Participants with respect to such Note by the beneficial
purchaser thereof (or a person, including an indirect
participant in DTC, acting on behalf of such purchaser), such
Participants and, in turn, such Agent shall enter SDFS deliver
orders through DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will deliver the withdrawal
message and take the related actions described in the preceding
paragraph.
Notwithstanding the foregoing, upon any failure to settle with
respect to a Book-Entry Note, DTC may take any actions in
accordance with its SDFS operating procedures then in effect.
In the event of a failure to settle with respect to one or more,
but not all, of the Book-Entry Notes to have been
17
represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedures "D" and "F", for the
authentication and issuance of a Global Security representing
that portion of the Book-Entry Notes in respect to which there
has not been a failure to settle and will make appropriate
entries in its records.
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PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar in
connection with the Certificated Notes.
Issuance:
Each Certificated Note will be dated and issued as of the date of
its authentication by the Trustee. Each Certificated Note will
bear an Original Issuance Date, which will be (i) with respect to
an original Certificated Note (or any portion thereof), its
original issuance date (which will be the settlement date) and
(ii) with respect to any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of a Certificated
Note or in lieu of a destroyed, lost or stolen Certificated Note,
the original issuance date of the predecessor Certificated Note,
regardless of the date of authentication of such subsequently
issued Certificated Note.
Registration:
Certificated Notes will be issued only in fully registered form
without coupons.
Maturities:
Each Certificated Note will mature on a date more than nine
months and not more than twelve years from date of issue.
Currency:
If other than U.S. dollars, the currency denomination with
respect to any Certificated Note and the payment of interest and
the repayment of principal with respect to any such Certificated
Note shall be as set forth therein and in the applicable Pricing
Supplement.
Denominations:
Unless otherwise provided in an applicable Pricing Supplement, the
denomination of any Certificated Note will be a minimum of
U.S. $1,000 or any amount in excess thereof that is an
integral multiple of U.S. $1,000 or the equivalent.
Interest:
General. Interest on each Note will accrue from the date and
at the rate, and will be payable at the times and in
the manner, set forth in such Note.
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Payments of Principal and Interest:
The Trustee will pay principal and premium, if any, on each
Certificated Note at maturity or upon redemption or repayment
upon presentation and surrender of such Note to the Trustee. Such
payment, together with payment of interest due at maturity or
upon redemption or repayment of such Note, will be made in funds
available for immediate use by the Trustee and in turn by the
holder of such Note. Certificated Notes presented for payment to
the Trustee at maturity or upon redemption or repayment for
payment will be cancelled by the Trustee and delivered to the
Company with a certificate of cancellation.
All interest payments on a Certificated Note (other than interest
due at maturity or upon redemption or repayment) will be made
by check drawn on the Trustee (or another person appointed by the
Trustee) and mailed by the Trustee to the person entitled thereto
as provided in such Note and the relevant Indenture; provided,
however, that (i) the holder of U.S.$5,000,000 or more in
principal amount of Notes having the same Interest Payment Date
may elect at any time to have payment made in immediately
available funds and (ii) unless otherwise specified in the
applicable Pricing Supplement or unless alternative arrangements
are made, payments on Notes in a currency other than U.S. dollars
will be made by wire transfer of immediately available funds to
an account maintained by the payee with a bank located outside
the United States and the holder of such Notes will provide the
Trustee with the appropriate wire transfer instructions.
Following each Regular Record Date, the Trustee will furnish the
Company with a list of interest payments to be made on the
following Interest Payment Date for each Certificated Note and in
total for all Certificated Notes. Interest at maturity or upon
redemption or repayment will be payable to the person to whom the
payment of principal is payable. The Trustee will provide monthly
to the
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Company lists of principal and interest, to the extent
ascertainable, to be paid on Certificated Notes maturing or to be
redeemed in the next month. The Trustee will be responsible for
withholding taxes on interest paid on Certificated Notes as
required by applicable law.
If any Interest Payment Date or the Stated Maturity or redemption
or repayment date for any Certificated Note would fall on a day
that is not a Business Day with respect to such Note, such
Interest Payment Date, Stated Maturity or redemption or repayment
date will be the following day that is a Business Day with
respect to such Note, except that, in the case of a Certificated
LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day with respect to
such Certificated LIBOR Note.
Preparation of Pricing Supplement:
If any offer to purchase a Certificated Note is accepted by or on
behalf of the Company, the Company will prepare a pricing
supplement (a "Pricing Supplement") reflecting the terms of such
Note and will arrange to file such Pricing Supplement with the
Commission in accordance with the applicable paragraph of Rule
424(b) under the Act.
The Company shall use its reasonable best efforts to send such
Pricing Supplement by telecopy or overnight express (for delivery
by the close of business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time, on the Business
Day following the applicable trade date) to the Agent which made
or presented the offer to purchase the applicable Note (in such
capacity, the "Offering Agent") and the Trustee at the following
applicable address:
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If to Merrill Lynch & Co.:
Merrill Lynch & Co.--Tritech Services
40 Colonial Drive
Piscataway, New Jersey 08854
Attention: Prospectus Operations
Susannah Putnam
Telephone: (908) 885-2769
Telecopier: (908) 885-2774/5/6
If to CS First Boston Corporation:
CS First Boston Corporation
5 World Trade Center
New York, New York 10048
Attention: Joan Bryan
Telephone: 212/322-5105
Fax: 212/898-3726
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Medium-Term Note Trading
Fax: 212/902-0658
If to Lehman Brothers Inc.:
Chemical Bank
4 New York Plaza
Ground Floor
Receive Window
FAO Lehman Brothers
New York, New York
Attention: Jennifer Jones
Telephone: 212/623-5953
If to Morgan Stanley & Co. Incorporated:
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
4th Floor
New York, New York 10020
Attention: Medium-Term Note Trading
Desk, Carlos Cabrera
Fax: 212/764-7490
If to Salomon Brothers Inc:
Salomon Brothers Inc
8800 Hidden River Parkway
Tampa, Florida 33637
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Attention: Enrique Castro
Telephone: 813/558-7165
Fax: 813/558-4123
For record-keeping purposes, one copy of each Pricing Supplement
shall also be mailed to each Agent at the address for notices set
forth in the Distribution Agreement unless delivery to such
address is otherwise expressly required above.
In each instance that a Pricing Supplement is prepared, the
Offering Agent will provide a copy of such Pricing Supplement
(and, unless a copy of the Prospectus has been previously
delivered, a copy of the Prospectus) to each investor or
purchaser of the relevant Notes or its agent. Pursuant to Rule
434 ("Rule 434") of the Securities Act of 1933, as amended, the
Pricing Supplement may be delivered separately from the
Prospectus.
Settlement:
The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to an
Agent and such Agent's delivery of such Note against receipt of
immediately available funds shall constitute "settlement" with
respect to such Note. All offers accepted by the Company will be
settled within three Business Days, or at such time as the
purchaser, the applicable Agent and the Company shall agree,
pursuant to the timetable for settlement set forth below, unless
the Company and the purchaser agree to settlement on another
date. If procedures "A" and "B" of the applicable Settlement
Procedures with respect to a particular offer are not completed
on or before the time set forth under the applicable "Settlement
Procedures Timetable", such offer shall not be settled until the
Business Day following the completion of settlement procedures
"A" and "B" or such later date as the purchaser and the Company
shall agree.
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The foregoing settlement procedures may be modified with respect
to any purchase of Notes by an Agent as principal if so agreed by
the Company and such Agent.
Settlement Procedures:
Settlement Procedures with regard to each Certificated Note sold
by the Company to or through an Agent (unless otherwise specified
pursuant to a Terms Agreement) shall be as follows:
A. The Offering Agent will advise the
Company by telephone that such Note
is a Certificated Note and of the
following settlement information:
1. Name in which such Note is to
be registered ("Registered
Owner").
2. Address of the Registered
Owner and address for payment
of principal and interest.
3. Taxpayer identification number
of the Registered Owner (if
available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the Inter-
est Rate, or, in the case of a
Floating Rate Certificated
Note, the Initial Interest
Rate (if known at such time),
Interest Payment Date(s),
Interest Payment Period,
Interest Rate Basis, Index
Maturity, First Interest Rate
Reset Date, Interest Reset
Frequency, Spread or Spread
Multiplier (if any), Minimum
Interest Rate (if any), and
Maximum Interest Rate (if
any).
7. Redemption or repayment
provisions, if any.
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8. Settlement date and time
(original Issuance Date).
9. Price.
10. The Offering Agent's
commission, if any, determined
as provided in the
Distribution Agreement.
11. Denominations (if other than
$1,000 and integral multiples
of $1,000 in excess thereof).
12. Specified Currency (if other
than U.S. dollars).
13. Whether the Note is an OID
Note, and if it is an OID
Note, the total amount of OID,
the yield to maturity, the
initial accrual period OID.
14. Any other applicable Terms.
B. The Company will advise the Trustee by telephone or
electronic transmission (confirmed in writing at any
time on the sale date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to the Trustee a
pre-printed four-ply packet for such Note, which packet
will contain the following documents in forms that
have been approved by the Company, the Agents and the
Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For such Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note
and authenticate such Note and
deliver it (with the confirmation)
and Stubs One and Two to the
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Offering Agent, and the Offering
Agent will acknowledge receipt of
the Note by stamping or otherwise
marking Stub One and returning it
to the Trustee. Such delivery will
be made only against such acknow-
ledgment of receipt and evidence
that instructions have been given
by the Offering Agent for payment
to the account of the Company at
the Trustee or to such other
account as the Company shall have
specified to the Offering Agent and
the Trustee in funds available for
immediate use, of an amount equal
to the price of such Note less the
Offering Agent's commission, if
any. In the event that the
instructions given by the Offering
Agent for payment to the account of
the Company are revoked, the
Company will as promptly as
possible wire transfer to the
account of the Offering Agent an
amount of immediately available
funds equal to the amount of such
payment made.
E. Unless the Offering Agent purchased
such Note as principal, the
Offering Agent will deliver such
Note (with confirmation) to the
customer against payment in
immediately payable funds. Prior
to delivery of the Certificated
Note, the Offering Agent will have
previously provided a copy of the
most recent Prospectus and the
applicable Pricing Supplement,
which pursuant to Rule 434 may be
delivered separately from the
Prospectus, to such purchaser.
F. The Trustee will send Stub Three to
the Company by first-class mail.
Periodically, the Trustee will also
send to the Company a statement
setting forth the principal amount
of the Notes outstanding as of that
date under the Indenture and
setting forth a brief description
of any sales of which the Company
26
has advised the Trustee but which
have not yet been settled.
Settlement Procedures Timetable:
For sales by the Company of Certificated Notes to or through an
Agent (unless otherwise specified pursuant to a Terms Agreement),
Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times (New York City time)
set forth below:
Settlement
Procedure Time
A 11:00 A.M. on the trade date
or within one hour following
the trade
B 12:00 noon on the trade date
or within one hour following
the trade
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle:
If a purchaser fails to accept delivery of and make payment for
any Certificated Note, the relevant Agent will notify the Company
and the Trustee by telephone and return such Note to the Trustee.
Upon receipt of such notice, the Company will immediately wire
transfer to the account of such Agent an amount equal to the
amount previously credited thereto in respect of such Note. Such
wire transfer will be made on the settlement date, if possible,
and in any event not later than the Business Day following the
settlement date. If the failure shall have occurred for any
reason other than a default by such Agent in the performance of
its obligations hereunder and under the Distribution Agreement
with the Company, then the Company will reimburse such Agent or
the Trustee, appropriate, on an equitable basis for its loss of
the use of the funds during the period when they were credited to
the account of the Company. Immediately upon receipt of the
Certificated Note in respect of which such failure occurred, the
Trustee will mark such Note "can-
27
celled," make appropriate entries in the Trustee's records and
send such Note to the Company.
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