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EXHIBIT 1.1
EXECUTION COPY
WELLS FARGO FINANCIAL, INC.
Medium-Term Notes, Series D, Due From
9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
Dated as of January 18, 2002
Banc of America Securities LLC Merrill Lynch, Pierce, Fenner & Smith
NC1-007-07-01 Incorporated
100 North Tryon Street Merrill Lynch World Headquarters
Charlotte, North Carolina 28255 4 World Financial Center, North Tower,
15th Floor
Banc One Capital Markets, Inc. New York, New York 10281-1323
Suite 1L1-0595
1 Bank One Plaza Mizuho International plc
Chicago, Illinois 60670 Bracken House
One Friday Street
Bear, Stearns & Co. Inc. London EC4M 9JA
245 Park Avenue
New York, New York 10017 Salomon Smith Barney Inc.
390 Greenwich Street, 4th Floor
BNP Paribas Securities Corp. New York, New York 10013
787 7th Avenue, 8th Floor
New York, New York 10019 Utendahl Capital Partners, L.P.
30 Broad Street, 42nd Floor
Deutsche Banc Alex. Brown Inc. New York, New York 10004
31 West 52nd Street
New York, New York 10019 and
J.P. Morgan Securities Inc. Wells Fargo Brokerage Services, LLC
270 Park Avenue, 8th Floor 608 2nd Avenue So.
New York, New York 10017 Minneapolis, Minnesota 55479
Dear Ladies and Gentlemen:
Wells Fargo Financial, Inc., an Iowa corporation (the "Company"), confirms
its agreement with Banc of America Securities LLC, Banc One Capital Markets,
Inc., Bear, Stearns & Co. Inc.,
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BNP Paribas Securities Corp., Deutsche Banc Alex. Brown Inc., J.P. Morgan
Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Mizuho
International plc, Salomon Smith Barney, Inc., Utendahl Capital Partners, L.P.
and Wells Fargo Brokerage Services, LLC (individually, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
its Medium-Term Notes described herein (the "Notes"). The Notes which constitute
senior indebtedness of the Company are to be issued pursuant to an Indenture
dated as of November 1, 1991 between the Company and The First National Bank of
Chicago (now called Bank One Trust Company, National Association), as trustee
(the "Senior Trustee") (said Indenture being hereinafter called the "Senior
Indenture"). The Notes which constitute senior subordinated indebtedness of the
Company are to be issued pursuant to an Indenture dated as of May 1, 1986
between the Company and BNY Midwest Trust Company as successor to Harris Trust
and Savings Bank, as trustee (the "Senior Subordinated Trustee"), as amended and
supplemented by a First Supplemental Indenture dated as of February 15, 1991
between the Company and the Senior Subordinated Trustee, as trustee (said
Indenture as amended by said First Supplemental Indenture being hereinafter
called the "Senior Subordinated Indenture"). As of the date hereof, the Company
has authorized the issuance and sale of up to U.S. $1,300,000,000 aggregate
principal amount (or its equivalent, based upon the currencies or units of two
or more currencies as the Company shall designate at the time of issuance) of
Notes through the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold through
or to the Agents pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company directly
to purchasers, in which case an Agent will act as an agent of the Company in
soliciting Note purchases, and (as may from time to time be agreed to by the
Company and an Agent) to an Agent as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-33096) for the registration
of debt securities, including the Notes, under the Securities Act of 1933 (the
"1933 Act") and the offering thereof from time to time in accordance with Rule
415 of the rules and regulations of the SEC under the 1933 Act (the "1933 Act
Regulations"). Such registration statement has been declared effective by the
SEC and the Senior Indenture and the Senior Subordinated Indenture
(individually, an "Indenture", and collectively, the "Indentures") each has been
qualified under the Trust Indenture Act of 1939 (the "1939 Act"). Such
registration statement (and any further registration statements which may be
filed by the Company for the purpose of registering additional Notes and in
connection with which this Agreement is included as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934 (the "1934 Act") or the 1933 Act or otherwise,
are referred to herein as the "Registration Statement" and the "Prospectus",
respectively, except that if any revised prospectus shall be provided to the
Agents by the Company for use in connection with the offering of the Notes which
is not required to be filed by the Company pursuant to Rule 424(b) of the 1933
Act Regulations, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agents for such use.
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SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
through additional agents or to additional agents for resale, or to sell Notes
directly on its own behalf, the Company hereby appoints the Agents as the agents
for the purpose of soliciting purchases of the Notes from the Company by others
and 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
(hereafter defined) relating to such sale in accordance with the provisions of
Section 3(b) hereof. The Agents are not authorized to appoint sub-agents or to
engage the services of any other broker or dealer in connection with the offer
or sale of the Notes.
(b) REASONABLE BEST EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS. Upon
receipt by it of instructions from the Company, an Agent will use its reasonable
best efforts to solicit purchases of such principal amount of the Notes as the
Company and such Agent shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time. Each Agent will communicate to the
Company, orally or in writing, each offer received by it to purchase Notes,
other than those offers rejected by such Agent. Each Agent shall have the right,
in its discretion reasonably exercised, to reject any offer to purchase Notes
received by it, as a whole or in part, and any such rejection shall not be
deemed a breach of such Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of the Notes, in whole or in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In soliciting
purchases of the Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each 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. The Agents shall not have any liability to the Company in the event any
such purchase is not consummated for any reason. The Agents shall not have any
obligation to purchase Notes from the Company as principal, but each Agent may
agree from time to time to purchase Notes as principal. Any such purchase of
Notes by an Agent as principal shall be made pursuant to a Terms Agreement in
accordance with Section 3(b) hereof.
(d) RELIANCE. The Company and each Agent agree that any Notes, the
placement of which such Agent arranges shall be placed by such Agent, and any
Notes purchased by such Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES
(a) The Company represents and warrants to each of the Agents 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) (the date of each such delivery to an
Agent as principal being hereafter referred to as a "Settlement Date"), and as
of the times referred to in Section 7(b) hereof as follows:
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(i) DUE INCORPORATION AND QUALIFICATION. The Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the state of its incorporation with corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required by virtue of the
direct making of loans and the direct purchase of installment sale
contracts, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(ii) SUBSIDIARIES. Each subsidiary of the Company which is a significant
subsidiary (each a "Significant Subsidiary") as defined in Rule 405 of
Regulation C of the 1933 Act Regulations has been duly organized and is
validly existing as a corporation or business trust in good standing under
the laws of the jurisdiction of its organization, has corporate or other
power and authority to own, lease and operate its properties and conduct
its business as described in the Prospectus and is duly qualified or
registered as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification or registration
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or
register would not have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding common stock of each
such Significant Subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and, except for directors' qualifying
shares, is owned by the Company, directly or through subsidiaries, free
and clear of any security interest, mortgage, pledge, lien, encumbrance,
claim or equity.
(iii) REGISTRATION STATEMENT AND PROSPECTUS. At the time the Registration
Statement became effective, the Registration Statement complied, and as of
the applicable Representation Date will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and the
1939 Act and the rules and regulations of the SEC promulgated thereunder.
The Registration Statement, at the time it became effective, did not, and
at each time thereafter at which any amendment to the Registration
Statement becomes effective, and as of each representation date referred
to in Section 2(a) hereof, will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, as of the date hereof does not, and as of each representation
date referred to in Section 2(a) hereof will not, contain an untrue
statement of a material fact or omit 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; PROVIDED, HOWEVER, that the
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by either of the Agents expressly for use in the
Registration Statement or Prospectus or to that part of the Registration
Statement which constitutes the Statement of Eligibility under the 1939
Act (Form T-1) of either the Senior Trustee or the Senior Subordinated
Trustee (the Senior Trustee and the Senior
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Subordinated Trustee being hereinafter called, individually, a "Trustee,"
and collectively, the "Trustees").
(iv) INCORPORATED DOCUMENTS. The documents incorporated by reference in
the Prospectus, at the time they were or hereafter are filed with the SEC,
complied or when so filed will comply, as the case may be, in all material
respects with the requirements of the 1934 Act and the rules and
regulations promulgated thereunder (the "1934 Act Regulations"), and, when
read together and with the other information in the Prospectus, did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under
which they were or are made, not misleading.
(v) ACCOUNTANTS. The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent
public accountants within the meaning of the 1933 Act and the 1933 Act
Regulations.
(vi) FINANCIAL STATEMENTS. The financial statements and any supporting
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the consolidated
results of their operations for the periods specified; and, except as
stated therein, said financial statements have been prepared in conformity
with generally accepted accounting principals in the United States applied
on a consistent basis; and the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein.
(vii) AUTHORIZATION AND VALIDITY OF THIS AGREEMENT, THE INDENTURES AND THE
NOTES. This Agreement has been duly authorized and, upon execution and
delivery by the Agents, will be a valid and binding agreement of the
Company; each of the Indentures has been duly authorized and (assuming
each Indenture has been duly authorized, executed and delivered by the
applicable Trustee) is a valid and binding obligation of the Company; the
Notes have been duly and validly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and the Indenture under which
they are to be issued against payment of the consideration therefor
specified in the Prospectus or pursuant to any Terms Agreement, the Notes
will constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further as
enforcement thereof may be limited by (a) requirements that a claim with
respect to any Notes denominated other than in U.S. dollars (or a foreign
currency or currency unit judgment in respect of such claim) be converted
into U.S. dollars at a rate or exchange prevailing on a date determined
pursuant to applicable law or (b) governmental authority to limit, delay
or prohibit the making of payments outside the United States; the Notes
and each of the Indentures are substantially in the form heretofore
delivered to the Agents and conform in all material respects to all
statements relating thereto contained in the Prospectus; and the Notes
will be entitled to the benefits provided by the Indenture under which
they are issued.
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(viii) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the respective
dates as of which information is given in the Registration Statement and
Prospectus, except as may otherwise be stated therein or contemplated
thereby, (a) 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
(b) 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.
(ix) NO DEFAULTS; REGULATORY APPROVALS. Neither the Company nor any of its
Significant Subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party
or by which the Company or any of its properties may be bound; the
execution and delivery of this Agreement and the Indentures and the
consummation of the transaction contemplated herein, therein, in the
Indentures, and pursuant to any applicable Terms Agreement have been duly
authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its Significant Subsidiaries pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them may be bound or to which any of the property or
assets of the Company or any such subsidiary is subject, nor will such
action result in any violation of the provisions of the charter or by-laws
of the Company or any law, administrative regulation or administrative or
court order, decree or judgment; and no consent, approval, authorization,
order, decree or judgment of any court or governmental agency or body is
required for the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
1933 Act, the 1939 Act, the 1933 Act Regulations or state securities or
Blue Sky laws.
(x) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set forth in the
Registration Statement, there is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened against or
affecting, the Company or any of its subsidiaries, which if adversely
determined, would in the opinion of the Company, result in a 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, or would materially and
adversely affect the properties or assets thereof or would materially and
adversely affect the consummation of this Agreement; and there are no
contracts or documents of the Company or any of its subsidiaries which are
required to be filed as exhibits to the Registration Statement by the 1933
Act or by the 1933 Act Regulations which have not been so filed.
(xi) NO AUTHORIZATION, APPROVAL OR CONSENT REQUIRED. No authorization,
approval or consent of any court or governmental authority or agency is
necessary in connection with the sale of the Notes hereunder, except such
as may be required under the 1933 Act or the 1933 Act Regulations or state
securities or Blue Sky laws.
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(xii) INVESTMENT COMPANY ACT. Neither the Company nor any of its
subsidiaries is subject to regulation under the Investment Company Act of
1940, as amended.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company and delivered to an Agent or to counsel for an Agent in connection
with an offering of Notes or the sale of Notes to such Agent as principal shall
be deemed a representation and warranty by the Company to such Agent as to the
matters covered thereby on the date of such certificate and at each
representation date referred to in Section 2(a) hereof subsequent thereto.
SECTION 3. 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 of the Agents agrees, as an agent of the Company, to use its best
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of instructions
from the Company, the Agents will forthwith suspend solicitation of purchases
from the Company until such time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay an Agent a commission (as set forth in Schedule
A), in the form of a discount, in an amount not to exceed .875% of the principal
amount of each Note sold by the Company as a result of a solicitation made by
such Agent. Without the prior approval of the Company, the Agents may not
reallow any portion of the commissions to dealers or purchasers in connection
with the offer and sale of any Note.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and an Agent and set forth in a
pricing supplement to the Prospectus to be prepared following each acceptance by
the Company of an offer for the purchase of Notes. Except as may be otherwise
provided in such supplement to the Prospectus, the Notes will be issued in
denominations of U.S. $1,000 or any amount in excess thereof which is an
integral multiple of U.S. $1,000. All Notes sold through an Agent as agent will
be sold at 100% of their principal amount unless otherwise agreed to by the
Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement and confirmed in writing as described below
between an Agent and the Company) is herein referred to as a "Terms Agreement".
Unless the context otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms Agreement between the
Company and an Agent. Each such Terms Agreement, whether oral (and confirmed in
writing, which may be by facsimile transmission) or in writing, shall be with
respect to such information (as applicable) as is specified in Exhibit A hereto.
An Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the representations
and warranties of
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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 an Agent pursuant thereto, the price to be paid to the
Company for such Notes, the time and place of delivery of and payment for such
Notes and such other provision (including further terms of the Notes) as may be
mutually agreed upon. Unless expressly authorized by the Company pursuant to the
Terms Agreement, an Agent is not authorized to utilize a selling or dealer group
in connection with the resale of the Notes purchased. Such Terms Agreement shall
also specify the requirements for the officer's certificate, opinions of counsel
and comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof,
respectively, and for any stand-off agreements pursuant to Section 4(j) hereof.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with respect to
the sale of Notes shall be agreed upon from time to time by the Agents and the
Company (the "Procedures"). The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by them
in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus (it being understood and agreed
that such notification shall be deemed to have been given if the Company
transmits to the Agents copies of any such supplements or documents within three
business days after they are transmitted to the SEC), (iii) of the receipt of
any comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give the Agents
notice of its intention to file or prepare any additional registration
statements with respect to the registration of additional Notes, any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise, and will furnish the Agents with copies of
any such amendment or supplement or other documents proposed to be filed or
prepared a reasonable time in advance of such proposed filing or preparation, as
the case may be.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The Company
will deliver to the Agents as many conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Agents may reasonably
request. The Company will furnish to the Agents as many copies of the Prospectus
(as amended or
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supplemented) as the Agents shall reasonably request so long as the Agents are
required to deliver a Prospectus in connection with sales or solicitations of
offers to purchase the Notes.
(d) REVISIONS OF PROSPECTUS - MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents or counsel for
the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time the Prospectus
is delivered to a purchaser, or if it shall be necessary, in the reasonable
opinion of any of such counsel, to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to each Agent to cease the solicitation of offers to purchase the
Notes in the Agent's capacity as agent and to cease sales of any Notes such
Agent may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and, subject to Section 4(b), file with the SEC such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements.
(e) PROSPECTUS REVISIONS - PERIODIC FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information with
respect to any fiscal year, the Company shall furnish such information to the
Agents, confirmed in writing, and shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference capsule financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanation as shall be necessary for an understanding thereof
or as shall be required by the 1933 Act or the 1933 Act Regulations.
(f) PROSPECTUS REVISIONS - AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, on or prior to the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of the Company for
the preceding fiscal year, the Company shall cause the Registration Statement
and the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other information and
explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(g) EARNINGS STATEMENTS. The Company will make generally available to its
security holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 under the 1933 Act) covering each twelve month
period beginning, in each case, not later than the first day of the
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Company's fiscal quarter next following the "effective date" (as defined in such
Rule 158) of the Registration Statement with respect to each sale of Notes.
(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may designate, and will maintain such qualifications in effect for as
long as may be required for the distribution of the Notes; provided, however,
that the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified. The Company will file such statements and reports as may
be required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any such state or jurisdiction of the
initiating or threatening of any proceeding for such purpose.
(i) 1934 ACT FILINGS. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Sections 13(a), 14 or 15(d) of the
1934 Act.
(j) STAND-OFF AGREEMENT. If required pursuant to the terms of a Terms
Agreement, between the date of any Terms Agreement and the Settlement Date with
respect to such Terms Agreement, the Company will not, without the prior consent
of the Agent which is a party to such Terms Agreement, offer or sell to the
public, or enter into any agreement to sell to the public, any debt securities
of the Company (other than the Notes that are to be sold pursuant to such Terms
Agreement and commercial paper in the ordinary course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be required
to comply with the provisions of subsections (d), (e) or (f) of this Section
during any period from the time (i) each of the Agents shall have suspended
solicitation of purchases of the Notes in its capacity as agent pursuant to a
request from the Company and (ii) the Agents shall not then hold any Notes as
principal purchased from the Company pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or shall subsequently enter into a new Terms Agreement with an Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of an Agent to solicit offers to purchase the Notes as
agent of the Company, the obligations of any purchasers of the Notes sold
through an Agent as agent, and any obligation of an Agent to purchase Notes
pursuant to a Terms Agreement will be subject to the accuracy, as of the time of
solicitation and/or purchases, of the representations and warranties on the part
of the Company herein and to the accuracy, as of the time of solicitation and/or
purchases, of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
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(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof, and in substantially the
form and substance set forth below and satisfactory to the Agents:
(1) OPINION OF COMPANY COUNSEL. The opinion of counsel to the Company
(or such other lawyer who serves as General Counsel of the Company
or over whom such General Counsel exercises general supervision or
review in connection with securities law matters for the Company)
("Company Counsel"), to the effect that:
(i) The Company is a corporation duly organized, validly existing
and in good standing under the laws of the State of Iowa.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement.
(iii) To the best of such counsel's knowledge, the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, by virtue of the direct making of loans and the direct
purchase of installment sale contracts, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, on the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise.
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation or business
trust, in good standing under the laws of the jurisdiction of its
organization, has corporate or other power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement, and, to the best of such
counsel's knowledge, is duly qualified or registered as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification or registration is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one
enterprise; all of the issued and outstanding common stock of each
such Significant Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable, and, except for directors'
qualifying shares, is owned by the Company, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(v) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the legal, valid, and binding
agreement of the Company, enforceable in accordance with its terms,
except as enforcement thereof may be limited by: (a) bankruptcy,
insolvency, reorganization, arrangement, fraudulent conveyance,
moratorium or other laws relating to or affecting the rights of
creditors generally; (b) rights to indemnification and contribution
which may be limited by applicable law or equitable principles; and
(c) general principles of equity, including without limitation
concepts of materiality, reasonableness, good faith and fair
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dealing, and the possible unavailability of specific performance or
injunctive relief, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(vi) Each of the Indentures has been duly authorized, executed and
delivered by the Company and (assuming each Indenture has been duly
authorized, executed and delivered by the applicable Trustee)
constitutes a valid and binding agreement of the Company, except as
enforcement thereof may be limited by: (a) bankruptcy, insolvency,
reorganization, arrangement, fraudulent conveyance, moratorium or
other laws relating to or affecting the rights of creditors
generally; (b) rights to indemnification and contribution which may
be limited by applicable law or equitable principles; (c) general
principles of equity, including without limitation concepts of
materiality, reasonableness, good faith and fair dealing, and the
possible unavailability of specific performance or injunctive
relief, regardless of whether such enforceability is considered in a
proceeding in equity or at law; and (d) the unenforceability under
certain circumstances of provisions imposing penalties, forfeitures,
late payment charges, or an increase in interest rate upon
delinquency in payment or the occurrence of any event of default;
and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority
to limit, delay or prohibit the making of payments in foreign
currency or currency units or payments outside the United States.
(vii) The Notes have been duly authorized and, when duly executed,
issued, authenticated and delivered pursuant to the provisions of
this Agreement and the Senior Indenture or the Senior Subordinated
Indenture, as appropriate, will constitute valid and binding
obligations of the Company enforceable in accordance with their
terms and will be entitled to the benefits provided by the
applicable Indenture, except as enforcement thereof may be limited
by: (a) bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium or other similar laws relating to
or affecting the rights of creditors generally; (b) rights to
indemnification and contribution which may be limited by applicable
law or equitable principles; (c) general principles of equity,
including without limitation concepts of materiality,
reasonableness, good faith and fair dealing, and the possible
unavailability of specific performance or injunctive relief,
regardless of whether such enforceability is considered in a
proceeding in equity or at law; and (d) the unenforceability under
certain circumstances of provisions imposing penalties, forfeitures,
late payment charges, or an increase in interest rate upon
delinquency in payment or the occurrence of any event of default;
and except further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes denominated
other than in U.S. dollars (or a foreign currency or foreign
currency unit judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental authority
to limit, delay or prohibit the making of payments in foreign
currency or currency units or payments outside the United States,
and
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each holder of Notes will be entitled to the benefits of the
Indenture under which the Notes were issued.
(viii) The terms and provisions of the Notes and the Indentures
conform in all material respects to the description thereof
contained in the Prospectus under the caption "Description of Debt
Securities" and "Description of Notes."
(ix) Each of the Indentures has been qualified under the 1939 Act.
(x) The Registration Statement has been declared effective under the
1933 Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
are pending or contemplated under the 1933 Act.
(xi) The Registration Statement, when it became effective, and the
Prospectus when it was filed with the SEC (it being understood that
such counsel has not been requested to and does not give any opinion
or make any comment with respect to the financial statements and
schedules and other financial information contained or incorporated
by reference in the Registration Statement or Prospectus, or the
Statement of Eligibility of the Trustee on Form T-1), complied as to
form in all material respects with the 1933 Act.
(xii) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened which are required to
be disclosed in the Prospectus, other than those disclosed therein,
and all pending legal or governmental proceedings to which the
Company or any subsidiary of the Company is a party or of which any
of their property is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business of the Company or any such subsidiary,
are, considered in the aggregate, not material to the Company and
its subsidiaries, taken as a whole.
(xiii) To the best of such counsel's knowledge, neither the Company
nor any of its Significant Subsidiaries is in violation of its
charter or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, loan agreement, note or lease to
which the Company is a party or by which the Company or any of its
properties may be bound. The execution and delivery of this
Agreement or of each of the Indentures, or the consummation by the
Company of the transactions contemplated by this Agreement and the
Notes and the incurrence of the obligations and consummation of the
transactions therein contemplated will not conflict with or
constitute a breach of, or default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement,
note, lease or other instrument known to such counsel and to which
the Company or any such subsidiaries is a party or by which it or
any of them may be bound or to which any of the property or assets
of the Company or any such subsidiaries is subject, or any law,
administrative regulation or administrative or
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court decree known to such counsel to be applicable to the Company
of any court or governmental agency, authority or body or any
arbitrator having jurisdiction over the Company; nor will such
action result in any violation of the provisions of the charter or
by-laws of the Company.
(xiv) To the best of such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments or documents required to be described or referred
to in the Registration Statement or to be filed as exhibits thereto
other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, the descriptions
thereof or references thereto are correct, and no default exists in
the due performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument
so described, referred to, filed or incorporated by reference.
(xv) No consent, approval, authorization, order or decree of any
court or governmental agency or body including the SEC is required
for the consummation by the Company of the transactions contemplated
by this Agreement, except such as may be required under the 1933
Act, the 1939 Act, the 1933 Act Regulations or state securities
laws.
(xvi) Each document filed pursuant to the 1934 Act and incorporated
by reference in the Prospectus complied when filed as to form in all
material respects with the 1934 Act and the 1934 Act Regulations
thereunder (except that such counsel need express no opinion as to
the financial statements or other data of a financial nature).
(2) OPINION OF COUNSEL TO THE AGENTS. The opinion of Orrick, Herrington
& Sutcliffe LLP, counsel to the Agents, covering the matters
referred to in subparagraph (1) under the subheadings (i) and (v) to
(xi), inclusive, above. Such counsel may rely upon the opinion of
Company Counsel, as to all matters of Iowa law and upon certificates
of the Company as to authorization and execution of this Agreement,
the applicable Indentures and the Notes and on certificates of the
Trustees as to authorization and execution of the applicable
Indentures.
(3) In giving their opinions required by subsection (a) (1) and (a) (2)
of this Section, Company Counsel and Orrick, Herrington & Sutcliffe
LLP shall each additionally state that nothing has come to their
attention that would lead them to believe that the Registration
Statement (including the documents incorporated by reference
therein) at the time it became effective, and if an amendment to the
Registration Statement or any document incorporated by reference
into the Prospectus has been filed by the Company with the SEC
subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the
most recent such filing, and at the date hereof, or (if such opinion
is being delivered in connection with a Terms Agreement pursuant to
Section 3(b) hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contained
or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or
necessary to make the
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statements therein, not misleading or that the Prospectus, as
amended or supplemented at the date hereof, or (if such opinion is
being delivered in connection with a Terms Agreement pursuant to
Section 3(b) hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be, contained
or contains an untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel has not been requested to and does not
give any opinion or make any comment with respect to the financial
statements and schedules and other financial information contained
or incorporated by reference in the Registration Statement or the
Prospectus, or the Statement of Eligibility of the Trustee on Form
T-1).
(b) OFFICER'S CERTIFICATE. At the date hereof the Agents shall have
received a certificate of the President or Vice President and the chief
financial officer or chief accounting officer of the Company, substantially in
the form of Exhibit I hereto and dated as of the date hereof, to the effect that
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus or since the date of any applicable
Terms Agreement, there has not 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, (ii) the
other representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the date of such certificate, and (iv)
that no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been initiated or
threatened by the SEC.
(c) COMFORT LETTER. On the date hereof, the Agents shall have received a
letter addressed to the Agents from Deloitte & Touche LLP (with respect to
financial information prior to March 31, 1999, if any) or KPMG, LLP (with
respect to financial information on or subsequent to March 31, 1999), dated as
of the date hereof, to the effect set forth in Exhibit II hereto, with respect
to the Registration Statement and the Prospectus.
(d) OTHER DOCUMENTS. On the date hereof, counsel to the Agents, and on
each Settlement Date with respect to any applicable Terms Agreement, counsel to
the Agent that is a party to such Terms Agreement, shall have been furnished
with such documents and opinions as such counsel may reasonably require for the
purpose of enabling such counsel to pass upon the issuance and sale of Notes as
herein contemplated and related proceedings, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Notes as
herein contemplated shall be in all material respects satisfactory in form and
substance to the Agent or Agents and to counsel to the Agent or Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
Agent that is a party thereto, and applicable Terms Agreement) may be terminated
by the Agents by notice to the Company at any
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time and any such termination shall be without liability of any party to any
other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(g) hereof, the indemnity and contribution
agreement set forth in Sections 8 and 9 hereof, the provisions concerning
payment of expenses under Section 10 hereof, and the provisions concerning the
representations, warranties and agreements to survive delivery of Section 11
hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
the Note to the Company, and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent. If such
failure occurred for any reason other than default by an Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with each Agent that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by it
of an offer for the purchase of Notes, and each delivery of Notes to an Agent
pursuant to a Terms Agreement, 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 to such Agent 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 to an Agent, of the Note
or 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 the Registration Statement and Prospectus as amended
and supplemented to each such time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
Notes or similar changes, and, unless the Agents shall otherwise specify in
writing, other than by an amendment or supplement which relates exclusively to
an offering of debt securities other than the Notes) or there is filed with the
SEC any document incorporated by reference into the Prospectus (other than any
Current Report on Form 8-K relating exclusively to the issuance of debt
securities under the Registration Statement, unless the Agents shall otherwise
specify in writing) or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to an Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished to the Agent or Agents, as the case may
be, forthwith a certificate dated the date of filing with the SEC of such
supplement or document, the date of effectiveness of such amendment, or the date
of such sale, as the case may be, in form satisfactory to the Agents to the
effect that the statements contained in the certificate referred to in Section
5(b)
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hereof which were last furnished to the Agents are true and correct at the time
of such amendment, supplement, filing or sale, as the case may be, as though
made at and as of such time (except that such statements shall be deemed to
relate to the 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 said Section 5(b), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that the Registration
Statement or the Prospectus shall be amended or supplemented (other than by an
amendment or supplement providing solely for a change in the interest rates of
the Notes or similar changes or solely for the inclusion of additional financial
information and, unless the Agents shall otherwise specify in writing, other
than by an amendment or supplement which relates exclusively to an offering of
debt securities other than the Notes) or there is filed with the SEC any
document incorporated by reference into the Prospectus or (if required pursuant
to the terms of a 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 Agent or Agents and to counsel to the Agent or Agents, as the
case may be, (ii) a written opinion of Company Counsel, or other counsel
satisfactory to the Agents, and (ii) a written opinion of Orrick, Herrington &
Sutcliffe LLP, counsel to the Agents, or other counsel satisfactory to the
Agents, in each case dated the date of filing with the SEC of such supplement or
document, the date of effectiveness of such amendment, or the date of such sale,
as the case may be, in form and substance satisfactory in all material respects
to the Agents, of the same tenor as the opinion referred to in Section 5(a)(1)
hereof, in the case of the opinion of Company Counsel, or the opinion referred
to in Section 5(a)(2) hereof, in the case of the opinion of Orrick, Herrington &
Sutcliffe LLP, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of delivery
of such opinion; or, in lieu of such opinion, counsel last furnishing such
opinion to the Agents shall furnish the Agents with a letter substantially in
the form of Exhibit III hereto to the effect that the Agents may rely on such
last opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information or, (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall cause Deloitte & Touche, LLP or KPMG, LLP, as appropriate,
forthwith to furnish the Agent or Agents, as the case may be, a letter, dated
the date of effectiveness of such amendment, supplement or document with the
SEC, or the date of such sale, as the case may be, in form satisfactory in all
material respects to the Agent or Agents, as the case may be, of the same tenor
as the portions of the letter referred to in Section 5(c) hereof but modified to
relate to the Registration Statement and Prospectus, as amended and supplemented
to the date of such letter, and of the same general tenor as the portions of the
letter referred to in Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Company; provided, however, that if the
Registration Statement or the
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Prospectus is amended or supplemented solely to include financial information as
of and for a fiscal quarter, Deloitte & Touche, LLP or KPMG, LLP, as
appropriate, may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
included therein of an accounting, financial or statistical nature is of such a
nature that, in the reasonable judgment of the Agent or the Agents, as the case
may be, such letter should cover such other information.
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls an Agent within
the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact necessary to make the
statements therein not misleading or arising out of any untrue statement
or alleged untrue statement of a material fact contained in the Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, unless such untrue statement or omission or such alleged
untrue statement or omission was made in reliance upon and in conformity
with written information (or oral information confirmed in writing)
furnished to the Company by an Agent expressly for use in the Registration
Statement or the Prospectus;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred, (including the
fees and disbursements of counsel chosen by an Agent) reasonably incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act against
any and all loss, liability, claim damage and expense described in the indemnity
contained in subsection (a) of this Section, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or the Prospectus
(or any amendment or supplement thereto)
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in reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) GENERAL. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 8, such
person (for purposes of this paragraph (c), the "indemnified party") shall,
promptly after receipt by such party of notice of the commencement of such
action, notify the person against whom such indemnity may be sought (for
purposes of this paragraph (c), the "indemnifying party"), 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 8. 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 wish, jointly
with any other indemnifying party similarly notified, 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 one or more legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense of any such action and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated in writing by the Agents in the case of
paragraph (a) of this Section 8, representing the indemnified parties under such
paragraph (a) who are parties to such action or actions), or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
All fees and expenses reimbursed pursuant to this paragraph (c) shall be
reimbursed as they are incurred. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
SECTION 9. CONTRIBUTION.
In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of Section 8 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
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claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the sale of the Notes or (ii) if the allocation provided by the
foregoing clause (i) is not permitted by applicable law, not only such relative
benefits but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions or alleged statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Agents on the other shall be deemed to be
in the same proportion as the total proceeds from the sale of the Notes (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Agents. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Agents, the parties' relative intents, knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances. The Company and the
Agents agree that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the Agents were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to above
in this Section 9 hereof. Notwithstanding any other provision of this Section 9
hereof, no Agent shall be obligated to make contributions hereunder that in the
aggregate are in excess of the amount by which the total price at which the
Notes which are the subject of the action and which were distributed to the
public through it pursuant to this Agreement or upon resale of Notes purchased
by it from the Company exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Agents' obligations to contribute hereunder
are several in proportion to their respective underwriting obligations, and not
joint with respect to such Notes. For purposes of this Section, each person, if
any, who controls an Agent within the meaning of Section 15 of the 1933 Act
shall have the same rights to contribution as the Agents, and each director of
the company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
SECTION 10. PAYMENT OF EXPENSES
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 Statement and all
amendments thereto and the Prospectus and any amendments or supplements
thereto (to the extent related to the Notes and the issuance thereof);
(ii) The preparation, filing and reproduction of this Agreement;
1.1-20
<Page>
(iii) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(iv) The fees and disbursements of the Company's accountants and counsel,
of each Trustee and its counsel, and of any Calculation Agent or Exchange
Rate Agent;
(v) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions
contemplated hereby;
(vi) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing
fees and the reasonable fees (not to exceed $10,000.00 annually) and
disbursements of counsel for the Agents in connection therewith and in
connection with the preparation of any Blue Sky Survey and Legal
Investment Survey;
(vii) The printing and delivery to the Agents in reasonable quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus and
any amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(viii) The preparation, printing and delivery to the Agents of copies of
each of the Indentures and all supplements and amendments thereto;
(ix) Any fees charged by rating agencies for the rating of the Notes; and
(x) Any advertising and other out-of-pocket expenses of the Agents
incurred with the written approval of the Company.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any controlling person of an
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time by either the Company
as to an Agent or, in the case of an Agent, by such Agent insofar as this
Agreement relates to such Agent, upon the giving of 30 days' written notice of
such termination to the other parties hereto.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent who is a party to a Terms
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such Terms Agreement or since the respective dates
as of which information is given in the Registration Statement, any
1.1-21
<Page>
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, (ii) if there shall have occurred any adverse
change in the financial markets in the United States in connection with any
outbreak or escalation of hostilities or other national or international
calamity or crises the effect of which is such as, in the judgment of such
Agent, to make it impractical to market the Notes or enforce contracts for the
sale of the Notes, (iii) if trading in any securities of the Company has been
suspended by the SEC or a national securities exchange, or if trading generally
on either the American Stock Exchange or the New York Stock Exchange shall have
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by either of said
exchanges or by order of the SEC 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, (iv) if the rating
assigned by any nationally recognized securities rating agency (to which the
Company has applied for such rating) 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 any such rating agency shall have publicly announced that it has
placed any debt securities of the Company on what is commonly termed a "watch
list" for possible downgrading, (v) if there shall have come to either Agent's
attention that, in the judgment of such Agent, the Prospectus, at the time it
was required to be delivered to a purchaser of Notes, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time of such delivery, not misleading or (vi) if there is a termination of
or a material disruption in commercial banking or securities settlement or
clearance services in the United States.
(c) GENERAL. In the event of any such termination, neither party will have
any liability to the other party hereto, except that (i) in the event such
termination occurs pursuant to Section 12(a) hereof, an Agent shall be entitled
to any commission earned in accordance with the third paragraph of Section 3(a)
hereof, (ii) if at the time of termination (A) an Agent shall own any Notes
purchased pursuant to a Terms Agreement with the intention of reselling them or
(B) an offer to purchase any of the Notes has been accepted by the Company but
the time of delivery to the purchaser or his agent of the Note or Notes relating
thereto has not occurred, the covenants set forth in Section 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(g) hereof, the provisions
of Section 5 hereof, the indemnity and contribution agreement set forth in
Sections 8 and 9 hereof, and the provisions of Section 11 shall remain in
effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by mail or by
telex, telecopies or telegram, and any such notice shall be effective when
received at the address specified below.
1.1-22
<Page>
If to the Company:
Wells Fargo Financial, Inc.
206 Eighth Street
Des Moines, Iowa 50309
Attention: Treasurer's Department
Telecopier: (515) 557-7368
If to Banc of America Securities LLC:
Banc of America Securities LLC
Bank of America Corporate Center
NC1-007-07-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: MTN Department
Telecopier: (704) 388-9939
If to Banc One Capital Markets, Inc.:
Banc One Capital Markets
Suite 1L1-0595
1 Bank One Plaza
Chicago, Illinois 60670
Attention: Investment Grade Securities
Telecopier: (312) 732-4773
If to Bear, Stearns & Co. Inc.:
Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Attention: Medium-Term Note Program
If the BNP Paribas Securities Corp.:
BNP Paribas Securities Corp.
787 7th Avenue, 8th Floor
New York, New York 10019
Attention: Fixed Income Syndicate
Telecopier: (212) 841-3930
If to Deutsche Banc Alex. Brown Inc.:
Deutsche Banc Alex. Brown Inc.
31 West 52nd Street, 3rd Floor
New York, New York 10019
Attention: Daniel Benton
Telecopier: (212) 469-7875
1.1-23
<Page>
If to J.P. Morgan Securities Inc.:
J.P. Morgan Securities Inc.
270 Park Avenue, 9th Floor
New York, New York 10017
Attention: Transaction Execution Group
Telecopier: (212) 834-6702
If to Merrill Lynch, Pierce, Fenner & Smith Incorporated:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower - 15th Floor
4 World Financial Center
New York, New York 10080
Attention: MTN Product Management
If to Mizuho International plc:
Mizuho International plc
Bracken House
One Friday Street
London EC4M 9JA
Attention: MTN Trading Desk
Telecopier: 011-44-20-7236-0484
If to Salomon Smith Barney Inc.:
Salomon Smith Barney Inc.
TPOD-Balancing Operations
One New York Plaza, 36th Floor
New York, New York 10004
If to Utendahl Capital Partners, L.P.:
Utendahl Capital Partners L.P.
30 Broad Street, 42nd Floor
New York, New York 10004
Attention: Carlos Sanchez and Richard Gordon
Telecopier: (212) 425-1873
1.1-24
<Page>
If to Wells Fargo Brokerage Services, LLC:
Wells Fargo Brokerage Services, LLC
608 2nd Avenue So.
Minneapolis, Minnesota 55479
Attention: Michael A. Schaefer
Telecopier: (612) 667-7517
SECTION 14. GOVERNING LAW.
This Agreement will be governed by and construed in accordance with the
law of the State of New York.
[Remainder of page intentionally left blank]
1.1-25
<Page>
If the foregoing correctly sets forth our agreement, please indicate your
acceptance hereof in the space provided for that purpose below.
Very truly yours,
WELLS FARGO FINANCIAL, INC.
By: /s/ Dennis E. Young
------------------------------------
Name: Dennis E. Young
Title: Executive Vice President and
Chief Financial Officer
Accepted:
BANC OF AMERICA SECURITIES LLC J.P. MORGAN SECURITIES INC.
By: /s/ Lily Chang By: /s/ Peter R. Brown
--------------------------------- ------------------------------------
Name: Lily Chang Name: Peter R. Brown
Title: Principal Title: Vice President
BANC ONE CAPITAL MARKETS, INC. MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED
By: /s/ Dana R. Levenson By: /s/ Venkat Badiwehal
--------------------------------- ------------------------------------
Name: Dana R. Levenson Name: Venkat Badiwehal
Title: Managing Director Title: Vice President
BEAR, STEARNS & CO. INC. MIZUHO INTERNATIONAL PLC
By: /s/ David Granville-smith By: /s/ Shiqeki Matsushima
--------------------------------- ------------------------------------
Name: David Granville-Smith Name: Shiqeki Matsushima
Title: Senior Managing Director Title: Deputy Managing Director
1.1-26
<Page>
DEUTSCHE BANC ALEX. BROWN INC. UTENDAHL CAPITAL PARTNERS, L.P.
By: /s/ Dan Benton By: /s/ Carlos A. Sanchez
--------------------------------- ------------------------------------
Name: Dan Benton Name: Carlos A. Sanchez
Title: Managing Director Title: Managing Director
By: /s/ Mary Myers
--------------------------------- WELLS FARGO BROKERAGE SERVICES, LLC
Name: Mary Myers
Title: Associate By: /s/ Michael A. Schaefer
------------------------------------
Name: Michael A. Schaefer
Title: SVP, Manager
1.1-27
<Page>
EXHIBIT A
The following terms, if applicable, shall be agreed to by an Agent and the
Company pursuant to each Terms Agreement:
Principal Amount: $ _____________________________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Date of maturity:
Whether the date of maturity may be extended
Purchase Price:____%
Settlement Date and Time;
Currency of Denomination:
Denominations (if currency is other than U.S. dollar):
Currency of Payment:
Whether Senior or Senior Subordinated
Whether book entry or certificated
Additional Terms:
1.1-28
<Page>
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7 (b) of
the Distribution Agreement.
Legal Opinion pursuant to Section 7 (c) of the
Distribution Agreement.
Comfort Letter pursuant to Section 7 (d) of the
Distribution Agreement.
Stand-off Agreement pursuant to Section 4 (j) of the
Distribution Agreement.
1.1-29
<Page>
SCHEDULE A
As compensation for the services of an Agent hereunder, the Company shall
pay it, on a discount basis, a commission for the sale of each Note which may be
equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
<Table>
<Caption>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
From 9 months but less than 1 year .......................... .125%
From 1 year but less than 18 months ......................... .150
From 18 months but less than 2 years ........................ .200
From 2 years but less than 3 years .......................... .250
From 3 years but less than 4 years .......................... .350
From 4 years but less than 5 years .......................... .400
From 5 years but less than 6 years .......................... .450
From 6 years but less than 7 years .......................... .500
From 7 years but less than 10 years ......................... .550
From 10 years but less than 15 years ........................ .600
From 15 years but less than 20 years ........................ .650
From 20 years to 30 years ................................... .875
</Table>
1.1-30
<Page>
EXHIBIT I
FORM OF OFFICER'S CERTIFICATE
WELLS FARGO FINANCIAL, INC.
The undersigned, [________], [President or Vice President], and
[__________], [chief financial officer or chief accounting officer], of Wells
Fargo Financial, Inc., an Iowa corporation (the "Company"), pursuant to Section
5(b) of the Distribution Agreement dated as of January 18, 2002 (the
"Distribution Agreement") among the Company and Banc of America Securities LLC,
Banc One Capital Markets, Inc., Bear, Stearns & Co. Inc., BNP Paribas Securities
Corp., Deutsche Banc Alex. Brown Inc., J.P. Morgan Securities Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Mizuho International plc, Salomon
Smith Barney Inc., Utendahl Capital Partners, L.P. and Wells Fargo Brokerage
Services, LLC hereby certify that, to the best of our knowledge, after
reasonable investigation:
1. Since _____________, ___, there has been no material adverse change in
the condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise, or 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 other than as
contemplated or set forth in the prospectus (the "Prospectus") contained in the
registration statement (File No. 333-33096) relating to the Company's
Medium-Term Notes, Series D (the "Registration Statement");
2. The representations and warranties of the Company contained in Section
2 of the Distribution Agreement are true and correct with the same force and
effect as though expressly made at and as of the date hereof;
3. The Company has performed or complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
hereof; and
4. No stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose has been initiated
or threatened by the Securities and Exchange Commission.
1.1-31
<Page>
IN WITNESS WHEREOF, we have hereunto signed our names and affixed the seal
of the Company.
Dated: _______________, 2002
________________________________________
Name:
Title:
[SEAL]
________________________________________
Name:
Title:
1.1-32
<Page>
EXHIBIT II
(1) They are independent certified public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the 1934 Act
and the respective applicable published rules and regulations thereunder.
(2) In their opinion, the audited financial statements included or
incorporated by reference in the Registration Statement and the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the 1934 Act and the published rules and
regulations thereunder.
Include the following clauses modified appropriately in light of each of
the documents incorporated by reference in the Prospectus and any interim
results contained in the Prospectus.
(3) On the basis of procedures referred to in such letter, including a
reading of the latest available interim financial statements of the Company and
inquiries of officials of the Company responsible for financial and accounting
matters, nothing came their attention which caused them to believe that:
(a) at the date of the latest available interim unaudited statement of
consolidated financial position of the Company, there were any changes in
the capital stock or long-term debt, except for scheduled redemptions of
long-term debt, or any decreases in consolidated finance receivables --
net, total assets or stockholder's equity of the Company and its
subsidiaries on a consolidated basis, as compared with the amounts shown
on the December 31, 2000 audited consolidated balance sheet included in
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000 and incorporated by reference in the Prospectus,
(b) for the period covered by the latest available financial statements,
there were any decreases, as compared with the corresponding period in the
preceding year, in total income, net earnings or the ratio of earnings to
fixed charges of the Company and its subsidiaries, or
(c) at a specified date not more than five business days prior to the date
of such letter, there were any changes in the capital stock or long-term
debt, except for scheduled redemptions of long-term debt, or any decrease
in stockholder's equity of the Company and its subsidiaries on a
consolidated basis, as compared with the amounts shown on the latest
available unaudited consolidated balance sheet of the Company, except in
all cases for changes or decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed necessary by
you.
1.1-33
<Page>
4) In addition to their examination referred to in their report
incorporated by reference in the Registration Statement and the Prospectus and
the procedures referred to in (3) above, they have performed certain other
specified procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is limited
to accounting, financial or statistical information derived from the general
accounting records of the Company) incorporated by reference in the Registration
Statement and the Prospectus and appearing in the Prospectus or incorporated
documents under the captions "MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS", and in Exhibit 12 to the Registration
Statement agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
1.1-34
<Page>
EXHIBIT III
Banc of America Securities LLC Merrill Lynch, Pierce, Fenner & Smith
NC1-007-07-01 Incorporated
100 North Tryon Street Merrill Lynch World Headquarters
Charlotte, North Carolina 28255 4 World Financial Center, North Tower,
15th Floor
Banc One Capital Markets, Inc. New York, New York 10281-1323
Suite 1L1-0595
1 Bank One Plaza Mizuho International plc
Chicago, Illinois 60670 Bracken House
One Friday Street
Bear, Stearns & Co. Inc. London EC4M 9JA
245 Park Avenue
New York, New York 10017 Salomon Smith Barney Inc.
390 Greenwich Street, 4th Floor
BNP Paribas Securities Corp. New York, New York 10013
787 7th Avenue, 8th Floor
New York, New York 10019 Utendahl Capital Partners, L.P.
30 Broad Street, 42nd Floor
Deutsche Banc Alex. Brown Inc. New York, New York 10004
31 West 52nd Street
New York, New York 10019 and
J.P. Morgan Securities Inc. Wells Fargo Brokerage Services, LLC
270 Park Avenue, 8th Floor 608 2nd Avenue So.
New York, New York 10017 Minneapolis, Minnesota 55479
Re: WELLS FARGO FINANCIAL, INC. (THE "COMPANY") MEDIUM-TERM NOTES,
SERIES D
Dear Ladies and Gentlemen:
I have delivered an opinion to you dated January 18, 2002 as counsel to
[the Company]/[you], pursuant to Section 5(a) of the Distribution Agreement,
dated as of January 18, 2002 between the Company and each of you, as Agent. You
may continue to rely upon such opinion as if it were dated as of this date
except that all statements and opinions contained therein shall be deemed to
relate to the Registration Statement and Prospectus as amended and supplemented
to this date.
This letter is delivered to you pursuant to Section 7(c) of the
Distribution Agreement.
Very truly yours,
1.1-35