EXHIBIT 1.1
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES, SERIES C DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
SUBORDINATED MEDIUM-TERM NOTES, SERIES D
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
February 28, 2001
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
ABN AMRO Incorporated Goldman, Sachs & Co.
1325 Avenue of the Americas 85 Broad Street
New York, New York 10019 New York, New York 10004
Banc One Capital Markets, Inc. HSBC Securities (USA) Inc.
1 Bank One Plaza, Suite IL1-0595 452 Fifth Avenue
Chicago, Illinois 60670 New York, New York 10018
Barclays Capital Inc. Lehman Brothers Inc.
222 Broadway 3 World Financial Center
New York, New York 10038 New York, New York 10285
Bear, Stearns & Co. Inc. Mellon Financial Markets, LLC
245 Park Avenue One Mellon Bank Center
New York, New York 10167 Pittsburgh, Pennsylvania 15258
BNY Capital Markets, Inc. Merrill Lynch, Pierce, Fenner &
1 Wall Street, 18th Floor Smith Incorporated
New York, New York 10286 4 World Financial Center
New York, New York 10080
Chase Securities, Inc. Salomon Smith Barney Inc.
270 Park Avenue, 8th Floor 388 Greenwich Street
New York, New York 10017 New York, New York 10013
Credit Suisse First Boston Corporation Westdeutsche Landesbank Girozentrale
11 Madison Avenue Herzogstrasse 15
New York, New York 10010 40217 Duesseldorf
Germany
First Albany Corporation
30 South Pearl Wells Fargo Brokerage Services, LLC
Albany, New York 12201 MAC 9303-097, Suite 900
608 Second Avenue South
Minneapolis, Minnesota 55479
Dear Sirs:
Wells Fargo & Company, a Delaware corporation (the "Company"),
confirms its agreement with Morgan Stanley & Co. Incorporated, ABN AMRO
Incorporated, Banc One Capital Markets, Inc., Barclays Capital Inc., Bear,
Stearns & Co. Inc., BNY Capital Markets, Inc., Chase Securities, Inc., Credit
Suisse First Boston Corporation, First Albany Corporation, Goldman, Sachs & Co.,
HSBC Securities (USA) Inc., Lehman Brothers Inc., Mellon Financial Markets, LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Salomon Smith Barney Inc.,
Westdeutsche Landesbank Girozentrale and Wells Fargo Brokerage Services, LLC
(individually, an "Agent", and collectively, the "Agents") with respect to the
issuance and sale by the Company of its Medium-Term Notes described herein (the
"Notes"). The Notes are to be issued pursuant to an indenture (the "Senior
Indenture") dated as of July 21, 1999, as amended from time to time, between the
Company and Citibank, N.A., as trustee (the "Senior Trustee"), or an indenture
(the "Subordinated Indenture" and together with the Senior Indenture, referred
to herein collectively as the "Indentures") dated as of August 30, 1999, as
amended from time to time, between the Company and Bank One Trust Company, N.A.
(successor in interest to The First National Bank of Chicago), as trustee (the
"Subordinated Trustee" and together with the Senior Trustee, referred to herein
collectively as the "Trustees"). As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $10,000,000,000 aggregate initial
public offering price (or its equivalent, based upon the applicable exchange
rate at the time of issuance, in such foreign currencies or foreign currency
units 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 the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and any Agent) to any 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. 333-47336) for the
registration of securities, including the Notes, under the Securities Act of
1933, as amended (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 each of the Indentures has been qualified under the
Trust Indenture Act of 1939, as amended (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 or incorporated by reference 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 or amendments or supplements pursuant to the Securities
Exchange Act of 1934, as amended (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.
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 directly on its own behalf or through any of its affiliated entities and
other agents, 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, except as otherwise contemplated herein, whenever the Company
determines to sell Notes directly to any Agent as principal for resale to
others, it will enter into a Terms Agreement (hereafter defined) relating to
such sale in accordance with Section 3(b) hereof. No Notes that the Company has
agreed to sell pursuant to this Agreement shall be deemed to have been purchased
and paid for or sold by the Company until such Notes shall have been delivered
to the purchaser thereof against payment by such purchaser. The Company may
accept offers to purchase Notes through an agent other than an Agent; provided,
however, that (i) any such acceptance shall be on substantially the same terms
as those set forth herein, and (ii) the Company shall give each of the Agents
notice of its decision to accept such an offer to purchase Notes promptly
following such acceptance.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
receipt of instructions from the Company, each of the Agents will use its
reasonable 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 or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer 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 proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach by such
Agent of this Agreement. 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 Notes on behalf of the Company and in performing its other
obligations hereunder (other than with respect to any purchase by an Agent as
principal pursuant to a Terms Agreement), 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;
provided, however, that such
Agent shall not have any liability to the Company in the event any such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall pay to such Agent the commission it would have received had such
sale been consummated and the Company shall hold such Agent harmless against any
other loss, claim or damage arising from or as a result of such default by the
Company. The Agents shall not have any obligation to purchase Notes from the
Company as principal, but any 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 in accordance with Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree that any Notes the
placement of which any 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 Agent as of
the date hereof, as of each date on which an Agent solicits offers to purchase
Notes at the request of the Company, the date of each acceptance by the Company
of an offer for the purchase of Notes (whether through such Agent as agent or to
such Agent as principal), as of the date of each delivery of Notes (whether
through such Agent as agent or to such Agent as principal) (the date of each
such delivery to the Agent as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed with the SEC any
document incorporated by reference into the Prospectus (each of the times
referenced above being referred to herein as a "Representation Date") as
follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied 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. Each of the Indentures
complies 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 or any Annual Report on Form 10-K is filed by the Company
with the SEC and as of each Representation Date, 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 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 (A) that part of the Registration Statement which
constitutes the Statement of
Eligibility (Form T-1) under the Trust Indenture Act and (B) 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 or on behalf of any of the Agents expressly for
use in the Registration Statement or Prospectus.
(ii) 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.
(iii) Authorization and Validity of this Agreement, the
Indentures and the Notes. This Agreement has been duly authorized and,
upon execution and delivery by each Agent, will be a valid and binding
agreement of the Company; when the terms of a particular issuance of
the Notes to an Agent as principal have been established in accordance
with the applicable Indenture, the related Terms Agreement, if any,
will have been duly authorized and, upon execution and delivery by the
applicable Agent, will be a valid and binding agreement of the Company;
each of the Indentures has been duly authorized and, upon execution and
delivery by the Senior Trustee or the Subordinated Trustee, as
applicable, will be a valid and binding obligation of the Company
enforceable in accordance with its 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 foreign currency unit judgment in respect of such
claim) be converted into U.S. 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; the
establishment of the Medium-Term Note Program, Series C, and the
Subordinated Medium-Term Note Program, Series D, of the Company has
been duly authorized; when the terms of a particular issuance of the
Notes have been established in accordance with the applicable
Indenture, and such Notes are issued, authenticated and delivered
pursuant to the provisions of this Agreement and the applicable
Indenture against payment of the consideration therefor specified in
the Prospectus or pursuant to any Terms Agreement, the Notes will have
been duly authorized, executed and delivered and 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 (i) 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 (ii) governmental authority to limit, delay or
prohibit the making of payments outside the United States; the Notes
and the Indentures will be substantially in the form heretofore
delivered to each Agent 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 applicable Indenture.
(iv) Investment Company Act of 1940. Neither the Company nor
any subsidiary of the Company is subject to registration or regulation
under the Investment Company Act of 1940, as amended.
(v) Legal Proceedings; Contracts. Except as may be set forth
in the Registration Statement or Prospectus, 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 might, in the opinion of the Company, result in 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, or might materially
affect the properties or assets thereof; 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.
(b) Additional Certifications. Any certificate signed by any
officer of the Company and delivered to any Agent or to counsel for any 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.
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 Agent agrees, as an agent of the Company, to use its reasonable
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 any Agent, as agent,
commencing at any time for any period of time or permanently. Upon receipt of at
least one business day's prior notice from the Company, such Agent will
forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised such Agent that such solicitation may
be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 7(a), (b) and (c) hereof; provided, however, that if the
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change the Agents deem to
be immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions and
letters as such Agent may request.
Unless the Company and the presenting Agent or Agents otherwise agree,
the Company will pay the presenting Agent (or jointly to two or all Agents if
such solicitation is jointly made) on the settlement date applicable to such
Note a commission equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such Agent
as set forth in Schedule A hereto.
The purchase price, interest rate, maturity date and other terms of
the Notes shall be agreed upon by the Company and the applicable Agent and set
forth in a pricing supplement to the Prospectus (a "Pricing Supplement") to be
prepared following each acceptance by the Company of an offer for the purchase
of Notes. All Notes sold through any 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, if confirmed in writing by facsimile
transmission or otherwise) 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 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 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 the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of such Notes, and such other provisions
(including further terms of such Notes) as may be mutually agreed upon. An Agent
may utilize a selling or dealer group in connection with the resale of the Notes
purchased and the Agents may sell any such Notes to any dealers at a discount
but, unless specified otherwise in the applicable Pricing Supplement, such
discount allowed to any dealer shall not be in excess of the discount payable to
the Agents by the Company. Such Terms Agreement shall also specify the
requirements for the officer's certificate, opinions of counsel and comfort
letter pursuant to Sections 7(a), 7(b) and 7(c) hereof.
(c) Administrative Procedures. The Company and the Agents hereby
agree to the administrative procedures with respect to the sale of Notes set
forth in Annex A hereto (the "Procedures"). Each of the Agents and the Company
agree to perform their respective duties and obligations as set forth in the
Procedures.
(d) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify each Agent
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, (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 each
Agent notice of its intention to file or prepare any additional registration
statement 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. The Company will not file any amendment or
supplement to the Registration Statement or the Prospectus after the date of any
Terms Agreement and prior to the related Settlement Date which shall be
disapproved by any Agent party to such Terms Agreement promptly after reasonable
notice thereof unless in the opinion of counsel to the Company such amendment or
supplement is required by law; provided, however, that the foregoing requirement
shall not apply to any of the Company's periodic filings with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act other than filings of
Current Reports on Form 8-K (to which the foregoing requirement shall apply),
copies of which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the SEC. Neither the Agents'
consent to, nor the Agents' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 5 hereof.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to counsel for the Agents one manually signed and as many
conformed copies as requested 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). The Company will furnish to each Agent, without
charge, as many copies of the Prospectus (as amended or supplemented) as such
Agent shall reasonably request so long as the Agent is required to deliver a
Prospectus in connection with sales or solicitations of offers to purchase the
Notes.
(d) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agent and will file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act not later than the time period specified therein.
(e) 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
(communicated to the Company in writing) 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 either such
counsel (communicated to the Company in writing in the case of counsel for the
Agents), 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 by the Company, and confirmed in
writing, to each Agent to cease the solicitation of offers to purchase the Notes
in such 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 subsection (b) of this Section, 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. Neither an Agent's request for, nor any Agent's
delivery of, any such amendment or supplement shall constitute a waiver of any
of the conditions set forth in Section 5 hereof.
(f) Prospectus Revisions -- Periodic Financial Information. Except
as otherwise provided in subsection (k) of this Section, on or immediately after
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 each Agent, confirmed in writing.
(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 or statements of
the Company and its subsidiaries (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 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 arrange to qualify the
Notes for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as any Agent 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 each Agent 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 or 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, subject to
subsection (b) of this Section, file promptly all documents required to be filed
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. If required pursuant to the terms of a
Terms Agreement with any Agent, during the period beginning on the date of any
Terms Agreement and ending on the business day after the Settlement Date with
respect to such Terms Agreement, the Company will not, without such Agent's
prior consent, offer or sell, announce the offering of or enter into any
agreement to sell, any debt securities of the Company with terms substantially
similar to those of the Notes which are the subject of such Terms Agreement
(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 (e) or (f) of this Section
with respect to any Agent during any period from the time (i) such Agent shall
have suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company and (ii) such Agent shall not then have a
legal obligation to deliver a prospectus with respect to the sale by it of Notes
which it has acquired as principal pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or such Agent shall have such legal obligation to deliver a
prospectus. Upon the request of the Company, each Agent will inform the Company
whether it has the legal obligation to deliver a prospectus with respect to the
sale by it of Notes which it has acquired under a Terms Agreement.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to solicit offers to purchase
the Notes as agent of the Company and any obligation of any Agent to purchase
Notes pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein and to the accuracy 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:
(a) Legal Opinions. On the date hereof, each Agent shall have
received the following legal opinions, dated as of the date hereof and in form
and substance satisfactory to such Agent:
1. Opinion of Company Counsel. The opinion of Stanley S. Stroup,
Executive Vice President and General Counsel of the Company, to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus, and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as
amended; and each of Wells Fargo Bank Minnesota, National
Association ("Wells Fargo Bank Minnesota"), and Wells Fargo Bank,
National Association ("Wells Fargo Bank"), is a national banking
association authorized to transact the business of banking under the
National Bank Act of 1864, as amended; and WFC Holdings Corporation
("WFC Holdings" and together with Wells Fargo Bank Minnesota and
Wells Fargo Bank, the "Significant Subsidiaries") is duly organized
and validly existing in good standing under the laws of the State of
Delaware.
(iii) Each of the Company and the Significant Subsidiaries is
duly qualified to do business and is in good standing in each
jurisdiction which requires such qualification wherein it owns or
leases any material properties or conducts any material business,
except where the failure to so qualify would not have any material
adverse effect upon the business, condition or properties of the
Company and its subsidiaries, taken as a whole.
(iv) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued and are fully paid and (except as provided in 12 U.S.C. ss.55
in the case of Wells Fargo Bank Minnesota and Wells Fargo Bank)
nonassessable, and are directly or indirectly owned by the Company
free and clear of any perfected security interest and, to the
knowledge of such counsel, any other security interests, claims,
liens
or encumbrances. The Company's authorized equity capitalization is
as set forth in the Prospectus.
(v) This Agreement has been duly and validly authorized,
executed and delivered by the Company.
(vi) Each of the Indentures has been duly and validly
authorized, executed and delivered by the Company and (assuming such
Indenture has been duly authorized, executed and delivered by the
Senior Trustee or the Subordinated Trustee, as applicable)
constitutes a legal, valid and binding agreement of the Company,
enforceable in accordance with its 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 equitable 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 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 the making of payments outside the
United States.
(vii) The Notes are in due and proper form and have been duly
established in conformity with Section 301 of the applicable
Indenture. When the specific terms of an issue of Notes have been
fixed by an authorized officer of the Company by executing and
delivering to the Senior Trustee or the Subordinated Trustee, as
applicable, an authentication certificate supplemental to an
officers' certificate, such Notes will be duly 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 applicable Indenture against payment of the
consideration therefor, 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
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 each holder of
Notes will be entitled to the benefits of the applicable Indenture.
(viii) The statements in the Prospectus (other than statements
furnished in writing to the Company by or on behalf of an Agent
expressly for use therein) under the captions "Description of Debt
Securities", "Plan of Distribution", "Description of Notes" and
"Supplemental Plan of Distribution", insofar as they purport to
summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(ix) Each of the Indentures is qualified under the 1939 Act.
(x) The Registration Statement is effective under the 1933
Act and, to the knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued
under the 1933 Act or proceedings therefor initiated or, to the
knowledge of such counsel, threatened by the SEC; and any required
filing of the Prospectus pursuant to Rule 424(b) will be made in the
manner and within the time period required by Rule 424(b) under the
1933 Act.
(xi) The Registration Statement, the Prospectus and each
amendment thereof or supplement thereto as of their respective
effective or issue dates (other than financial statements, schedules
and other financial and statistical data contained therein, as to
which no opinion need be rendered) complied as to form in all
material respects with the requirements of the 1933 Act, the 1939
Act and the regulations under each of those Acts.
(xii) To 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.
(xiii) The execution and delivery of this Agreement or 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 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 Significant Subsidiary pursuant to,
any contract, indenture, mortgage, loan agreement, note, lease or
other instrument constituting a material contract and set
forth as an exhibit to the Company's most recent Annual Report on
Form 10-K or any subsequent Quarterly Report on Form 10-Q or Current
Report on Form 8-K, or any other contract, indenture, mortgage, loan
agreement, note, lease or other instrument known to such counsel and
to which the Company or any Significant Subsidiary is a party or to
which any of the property or assets of the Company or any
Significant Subsidiary is subject, or any law, administrative
regulation or administrative or 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 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, and the descriptions thereof or
references thereto are correct.
(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 Blue Sky laws of any jurisdiction in connection with the
purchase and distribution of the Notes by the Agents.
(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 (other than financial statements, schedules
and other financial and statistical data included therein, as to
which no opinion need be rendered).
2. Opinion of Counsel to the Agents. The opinion of Gibson, Dunn &
Crutcher LLP, counsel to the Agents, covering the matters referred to in
subparagraph (1) under the subheadings (i), (v), (vi), (vii), (ix), (x)
and (xi) above.
3. In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Mr. Stroup and Gibson, Dunn & Crutcher LLP shall
each additionally state that such counsel has no reason to believe that
the Registration Statement, or any amendment thereof, at the time it
became effective (other than financial statements, schedules or other
financial and statistical data contained therein, as to which no
statement need be made), contained an untrue statement of a material
fact
or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or that
the Prospectus, as amended or supplemented at the date the opinion is
being rendered or (if such opinion is being delivered in connection with
a Terms Agreement pursuant to Section 7(b) hereof) at the date of any
Terms Agreement and at the Settlement Date with respect thereto, as the
case may be (other than financial statements, schedules or other
financial and statistical data contained therein, as to which no
statement need be made), includes an untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the opinion of
Gibson, Dunn & Crutcher LLP shall take no exception for statistical
data.
(b) Officer's Certificates. On the date hereof, the Agents shall
have received a certificate signed by any Senior Vice President or Executive
Vice President and the principal financial or accounting officer of the Company
(provided that no person shall sign such certificate in more than one official
capacity) dated as of the date hereof, to the effect that (i) since the date of
the most recent financial statements included in 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,
properties or business prospects of the Company and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business, except as set
forth in or contemplated in the Prospectus, (ii) the 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) 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 from KPMG LLP, dated as of the date hereof and containing
statements and information of the type contained in the form of comfort letter
attached hereto as Annex B.
(d) Other Documents. On the date hereof (and on each Settlement
Date with respect to any applicable Terms Agreement), counsel to the Agents
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 Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel for the Agents.
(e) Material Adverse Change. There shall have been no material
adverse change in the condition, financial or otherwise, in the earnings,
business, properties, results of operations or business prospects of the Company
and its subsidiaries, taken as a whole, whether or not in the ordinary course of
business, from that set forth in the Prospectus, as amended or
supplemented as of the date of such solicitation or the date of such Terms
Agreement that, in the judgment of such Agent, is material and adverse and makes
it, in the judgment of such Agent, impracticable to proceed with the
solicitation of offers to purchase Notes or the purchase by such Agent of Notes
from the Company pursuant to such Terms Agreement, as the case may be.
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 any Agent, any applicable Terms Agreement) may be terminated by any
Agent insofar as this Agreement relates to such Agent by notice to the Company
at any 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 provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth in Sections 13, 14 and 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through any 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, the presenting 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 such 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) Subsequent Delivery of Certificates. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement, and other than by
an amendment or supplement which relates exclusively to an offering of
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 any Agent pursuant to a
Terms Agreement, the Company shall furnish or cause to be furnished to such
Agent 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 such Agent to the
effect that the statements contained in the certificate referred to in Section
5(b) hereof which were last furnished to such Agent 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.
(b) Subsequent Delivery of Legal Opinions. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement or solely for the
inclusion of additional financial information, and other than by an amendment or
supplement which relates exclusively to an offering of 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 any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent and to counsel to
such Agent a written opinion of the General Counsel of the Company, or other
counsel satisfactory to such Agent, 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 to
such Agent, of the same tenor as the opinion referred to in Section 5(a)(1)
hereof, 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
such Agent shall furnish each Agent with a letter 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).
(c) Subsequent Delivery of Comfort Letters. If so requested by
such Agent, 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 any Agent pursuant to a
Terms Agreement, the Company shall cause KPMG LLP forthwith to furnish each
Agent 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 to the Agents, of the same general tenor as 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 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 Prospectus is
amended or supplemented solely to include financial information as of and for a
fiscal quarter, KPMG LLP may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement.
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 each Agent
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, as originally filed or
any
amendment thereof, 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 thereof, 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, and agrees to reimburse each such indemnified party to the extent
set forth below, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage or liability; provided, however, that: (A) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based on any such untrue statement or omission or
such alleged untrue statement or omission made therein in reliance upon and in
conformity with written information furnished to the Company by the Agents
expressly for use in the Registration Statement or the Prospectus, and (B) with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from the Prospectus, the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Agent (or any person
controlling such Agent) from or through whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned, to the
extent that the Prospectus relating to such Notes was required to be delivered
by such Agent under the 1933 Act in connection with such purchase and was not so
delivered at or prior to the written confirmation of the sale of such Notes to
such person and the untrue statement or omission of a material fact contained in
the Prospectus was corrected in an amendment or supplement if the Company had
previously furnished copies of the Prospectus as so amended or supplemented
(exclusive of material incorporated by reference) to such Agent in sufficient
time for such Agent to deliver the Prospectus as so amended or supplemented
prior to the consummation of such purchase. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(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 or Section
20 of the 1934 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) 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 either paragraph (a) or (b) of this Section
8, such person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing,
and the indemnifying party shall be entitled to participate therein and, to the
extent it shall wish, jointly, with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
the indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party). Any failure to so notify
shall not affect any rights that may exist other than pursuant to this Section
8. In any such proceeding, any indemnified party shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
identified separate firm (in addition to any identified local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the Agents
that are indemnified parties in the case of parties to be indemnified pursuant
to paragraph (a) of this Section 8 and by the Company in the case of parties to
be indemnified pursuant to paragraph (b) of this Section 8. An indemnifying
party shall not be liable for any settlement of any proceeding effected without
its prior written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld or delayed), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement (i) includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of the indemnified party.
SECTION 9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the indemnified party, as incurred: (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and each Agent, on the other hand, from the offering of the Notes
to which such loss, liability, claim, damage or expense shall relate; or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company, on
the one hand, and each Agent, on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and each Agent, on the other
hand, in connection with such offering shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by each Agent in respect thereof. The relative fault of
the Company, on
the one hand, and each Agent, on the other hand, 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 by such Agent and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Each Agent's obligation to contribute
pursuant to this Section 9 shall be several in the proportion that the principal
amount of the Notes the sale of which by or through such Agent gave rise to such
losses, claims, damages or liabilities bears to the aggregate principal amount
of the Notes the sale of which by or through all Agents gave rise to such
losses, claims, damages or liabilities, and not joint; provided, however, that
no person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls any Agent within the meaning of Section 15 of
the 1933 Act shall have the same rights to contribution as such Agent, 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.
(b) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to Section 9(a) hereof were determined by pro
rata allocation (even if the Agents were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 9(a) hereof. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 9(a) hereof shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section, no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes referred to in Section 9(a) hereof that were offered
and sold by or through such Agent exceeds the amount of any damages that such
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this Agreement;
(c) the preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) the fees and disbursements of the Company's accountants and
counsel, of the Senior Trustee and the Subordinated Trustee and their
counsel, and of any Calculation Agent or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the Agents
incurred in connection with establishment of the program contemplated
hereby and the transactions contemplated hereby other than in
connection with the sale of Notes to an Agent as principal pursuant to
a Terms Agreement (unless so provided in such Terms Agreement);
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation
of any Blue Sky Survey and any Legal Investment Survey;
(g) the printing and delivery to the Agents in 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 each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to the
Agent of copies of the Indentures and all supplements and amendments
thereto;
(i) any fees charged by rating agencies for the rating of the
Notes;
(j) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the Agents
incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in the
Indentures) and any nominees thereof in connection with the Notes.
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 any Agent or
any controlling person of any 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 or any Agent (insofar as this Agreement relates to such Agent) upon
the giving of 30 days' written notice of such termination to the other party
hereto.
(b) Termination of a Terms Agreement. Any Agent may terminate any
Terms Agreement, in such Agent's absolute discretion, immediately upon notice to
the Company, at any time prior to the Settlement Date relating thereto if there
shall have occurred, since the date of such Terms Agreement, any (i) suspension
or material limitation of trading generally on the New York Stock Exchange, (ii)
suspension of trading of any securities of the Company on any exchange or in any
over-the-counter market, (iii) declaration of a general moratorium on commercial
banking activities in California or New York by either Federal or state
authorities, (iv) lowering of the rating assigned to any debt securities of the
Company by any nationally-recognized securities rating agency or public
announcement by any such rating agency that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Company, or (v) outbreak or escalation of hostilities in which the United States
is involved, declaration of war by Congress or change in financial markets or
calamity or crisis, that, in the judgment of such Agent, is material and adverse
and, in the case of any of the events described in clauses (i) through (v), such
event, either alone or together with any other such event, makes it, in the
judgment of such Agent, impracticable to proceed with completion of the public
offering of, or purchase of and payment for, the Notes.
(c) General. In the event of any such termination, none of the
parties will have any liability to the other parties hereto, except that (i)
each 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)
any 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 Sections 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 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 15 hereof 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, telecopier or telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Wells Fargo & Company
444 Market Street
MAC: 0195-171
San Francisco, California 94111
If to the Agents:
Morgan Stanley & Co. Incorporated
1585 Broadway - 2/nd/ Floor
New York, New York 10036
Attention: Manager-Continuously
Delivered Products
and
1585 Broadway - 29/th/ Floor
New York, New York 10036
Attention: Peter Cooper: Investment
Banking Information Center
ABN AMRO Incorporated Goldman, Sachs & Co.
1325 Avenue of the Americas 85 Broad Street
New York, New York 10019 New York, New York 10004
Banc One Capital Markets, Inc. HSBC Securities (USA) Inc.
1 Bank One Plaza, Suite IL1-0595 452 Fifth Avenue
Chicago, Illinois 60670 New York, New York 10018
Barclays Capital Inc. Lehman Brothers Inc.
222 Broadway 3 World Financial Center
New York, New York 10038 New York, New York 10285
Bear, Stearns & Co. Inc. Mellon Financial Markets, LLC
245 Park Avenue One Mellon Bank Center
New York, New York 10167 Pittsburgh, Pennsylvania 15258
BNY Capital Markets, Inc. Merrill Lynch, Pierce, Fenner &
1 Wall Street, 18th Floor Smith Incorporated
New York, New York 10286 4 World Financial Center
New York, New York 10080
Chase Securities, Inc. Salomon Smith Barney Inc.
270 Park Avenue, 8th Floor 388 Greenwich Street
New York, New York 10017 New York, New York 10013
Credit Suisse First Boston Corporation Westdeutsche Landesbank Girozentrale
11 Madison Avenue Herzogstrasse 15
New York, New York 10010 40217 Duesseldorf
Germany
First Albany Corporation Wells Fargo Brokerage Services, LLC
30 South Pearl MAC 9303-097, Suite 900
Albany, New York 12201 608 Second Avenue South
Minneapolis, Minnesota 55479
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties
shall be governed by and construed in accordance with the laws of the State of
New York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon
each Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
If the foregoing is in accordance with the Agents' understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
WELLS FARGO & COMPANY
By: /s/ Paul D. Ardleigh
--------------------------------
Name: Paul D. Ardleigh
Title: Senior Vice President
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
------------------------------
Its: Principal
--------------------------
ABN AMRO INCORPORATED
By: /s/ Linda Lawson
------------------------------
Its: Managing Director
--------------------------
BANC ONE CAPITAL MARKETS, INC.
By: /s/ Katherine Cokic
------------------------------
Its: Assistant Director
--------------------------
BARCLAYS CAPITAL INC.
By: /s/ Rich Herder
------------------------------
Its: Director
--------------------------
BEAR, STEARNS & CO. INC.
By: /s/ Ralph Cioffi
------------------------------
Its: Senior Managing Director
--------------------------
BNY CAPITAL MARKETS, INC.
By: /s/ Bennett Leichman
------------------------------
Its: Vice President
--------------------------
CHASE SECURITIES INC.
By: /s/ Jose Padilla
--------------------------------------
Its: Vice President
---------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ J. Keogh
--------------------------------------
Its: Authorized Signatory
---------------------------------
FIRST ALBANY CORPORATION
By: /s/ Robert Campbell
--------------------------------------
Its: Managing Director Capital Markets
---------------------------------
GOLDMAN, SACHS & CO.
By: /s/ Goldman, Sachs & Co.
--------------------------------------
Its:
---------------------------------
HSBC SECURITIES (USA) INC.
By: /s/ Ed LaSala
--------------------------------------
Its: Managing Director
---------------------------------
LEHMAN BROTHERS INC.
By: /s/ Martin Goldberg
--------------------------------------
Its: Senior Vice President
---------------------------------
MELLON FINANCIAL MARKETS, LLC
By: /s/ J.L.
-----------------------------------------------
Its: CEO & Treasurer
------------------------------------------
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ Diane Keogh
-----------------------------------------------
Its: Authorized Signatory
------------------------------------------
SALOMON SMITH BARNEY INC.
By: /s/ J. Harasimowicz
-----------------------------------------------
Its: Managing Director
------------------------------------------
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ U. Ahlers Murfitt Y.O.
-----------------------------------------------
Its: Director Associate Director
------------------------------------------
WELLS FARGO BROKERAGE SERVICES, LLC
By: /s/ M.S.
-----------------------------------------------
Its: SVP
------------------------------------------
SCHEDULE A
As compensation for the services of any Agent hereunder, the Company
shall pay it, on a discount basis, a commission for the sale of each Note equal
to the principal amount of such Note multiplied by the appropriate percentage
set forth below:
PERCENT OF
----------
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year............................. .125%
From 1 year to less than 18 months............................ .150
From 18 months to less than 2 years........................... .200
From 2 years to less than 3 years............................. .250
From 3 years to less than 4 years............................. .350
From 4 years to less than 5 years............................. .450
From 5 years to less than 7 years............................. .500
From 7 years to less than 10 years............................ .600
From 10 years to less than 15 years........................... .625
From 15 years to less than 20 years........................... .700
From 20 years to 30 years..................................... .750
More than 30 years............................................ As agreed at the
time of sale
EXHIBIT A
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES
TERMS AGREEMENT
_________________, 20__
Wells Fargo & Company
444 Market Street
MAC: 0195 - 171
San Francisco, California 94111
Attention:
Re: Distribution Agreement dated February 28, 2001 (the "Distribution
Agreement")
[We agree to purchase, severally and not jointly, the principal amount of
Notes set forth below opposite our names:
Principal Amount
Name of Notes
----------------
Morgan Stanley & Co. Incorporated..................... $
[Insert syndicate list]/1/............................
________________
Total................................................. $
________________________
/1/ Delete if the transaction will not be syndicated.
We agree to purchase your Medium-Term Notes having the following
terms:
Principal Amount: $________________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis applicable to each
interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and Original
Issue Discount Fixed Rate Notes, any terms required to be
established by the Internal Revenue Code of 1986, as amended
If Foreign Currency Notes:
Interest rate or interest rate basis
Authorized denominations (including integral multiples)
in the specified currency
Exchange rate agent
Specified currency account (if holder elects to receive
payments in other than U.S. dollars by wire transfer)
A-2
If Redeemable:
Redemption Date
Redemption Prices
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ___%
Price to Public: ___%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Payment of Expenses
Syndicate Provisions
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(a) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(b) of the Distribution
Agreement
Comfort Letter pursuant to Section 7(c) of the Distribution
Agreement
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement
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The provisions of the Distribution Agreement applicable to purchases of
Notes by the Agents and the related definitions are incorporated by reference
herein and shall be deemed to have the same force and effect as if set forth in
full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as _____________ may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date. If on the Settlement Date any Agent or Agents shall fail or refuse to
purchase Notes and the aggregate amount of Notes with respect to which such
default occurs is more than one-tenth of the aggregate amount of Notes to be
purchased on such date, and arrangements satisfactory to ___________ and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Agent or the Company. In any such case either ___________ or the
Company shall have the right to postpone the Settlement Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Agent from liability in respect of any default of such
Agent under this Agreement.]/2/
________________
/2/ Delete if the transaction will not be syndicated.
A-4
This Agreement is also subject to termination on the terms incorporated by
reference herein.
[NAME OF RELEVANT AGENT(S)]
By____________________________________
Name:
Title:
Accepted:
WELLS FARGO & Company
By_________________________________
Name:
Title:
A-5
ANNEX A
WELLS FARGO & COMPANY
Administrative Procedures
These Administrative Procedures relate to the Notes defined in the
Distribution Agreement, dated February 28, 2001 (the "Distribution Agreement"),
among Wells Fargo & Company (the "Company") and the Agents named therein
(together, the "Agents"), to which these Administrative Procedures are attached
as Annex A. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the applicable Indenture. To the extent any procedure
set forth below conflicts with the provisions of the Notes, the applicable
Indenture, the Distribution Agreement or the applicable Terms Agreement, the
relevant provisions of the Notes, the applicable Indenture, the Distribution
Agreement and the applicable Terms Agreement shall control.
An Agent, in relation to a purchase of a Note by a purchaser solicited by
such Agent, is referred to herein as the "Selling Agent" and, in relation to a
purchase of a Note by such Agent as principal pursuant to a Terms Agreement, as
the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Note will be issued only in fully registered form, without coupons,
and will be represented by either a global security (a "Global Security")
delivered to the applicable Trustee, or the agent for such Trustee, as agent for
The Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Security") or a certificate issued in
definitive form (a "Certificated Security") delivered to a person designated by
an Agent, as set forth in the applicable Pricing Supplement. An owner of a Book-
Entry Security will not be entitled to receive a certificate representing such a
Note, except as provided in the applicable Indenture.
Book-Entry Securities, which may be payable only in U.S. dollars, will be
issued in accordance with the Administrative Procedure set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures and Certificated Securities will be issued in accordance
with the Administrative Procedure set forth in Part II hereof.
Certain duties of the Senior Trustee and the Subordinated Trustee hereunder
may be performed by Wells Fargo Bank Minnesota, National Association, as
Issuing, Paying & Authenticating Agent, and other duly appointed agents of the
Senior Trustee or the Subordinated Trustee. The Calculation Agent will be Wells
Fargo Bank Minnesota, National Association.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by DTC, the Senior Trustee and
the Subordinated Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance:
On any date of settlement (as defined under "Date of Settlement" below) for
one or more Book-Entry Securities, the Company will issue a single Global
Security representing the principal amount of all such Notes that have the same
Original Issue Date, Stated Maturity Date and other terms (which Global Security
shall represent no more than U.S. $400,000,000 of such principal amount if such
Global Security is to be deposited with DTC). Each Global Security will be dated
and issued as of the date of its authentication by the applicable Trustee. Each
Global Security will bear an "Interest Accrual Date," which will be (i) with
respect to an original Global Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global Security (or any portion
thereof) issued subsequently upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most recent Interest Payment Date
to which interest has been paid or duly provided for on the predecessor Global
Security (or if no such payment or provision has been made, the original
issuance date of the predecessor Global Security), regardless of the date of
authentication of such subsequently issued Global Security. No Global Security
will represent any Certificated Security.
Denominations:
Book-Entry Securities will be issued in principal amounts of U.S. $1,000 or
any amount in excess thereof that is an integral multiple of U.S. $1,000. Global
Securities will be denominated in principal amounts not in excess of U.S.
$400,000,000 if such Global Security is to be deposited with DTC. If one or more
Book-Entry Securities having an aggregate principal amount in excess of
$400,000,000 would, but for the preceding sentence, be represented by a single
Global Security, then one Global Security will be issued to represent each U.S.
$400,000,000 principal amount of such Book-Entry Security or Securities and an
additional Global Security will be issued to represent any remaining principal
amount of such Book-Entry Security or Securities. In such a case, each of the
Global Securities representing such Book-Entry Security or Securities shall be
assigned the same CUSIP number.
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
A-2
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase Book-
Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the applicable Trustee.
Communication of Sale Information to the Company by Selling Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate, the
Interest Payment Dates and the initial Interest Payment Date;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) If payments thereon are to be determined by reference to an
index, the relevant provisions relating thereto;
(7) issue price;
(8) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(9) Net proceeds to the Company;
(10) If a redeemable or repayable Book-Entry Security, provisions
relating to such redemption or repayment;
A-3
(11) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Base Rate,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) maximum rate,
(v) minimum rate,
(vi) initial interest rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Denomination of certificates to be delivered at settlement;
(13) Selling Agent or Purchasing Agent;
(14) original issue discount provisions, if any;
(15) Any other applicable terms.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the applicable Trustee by facsimile transmission or other
acceptable written means. The applicable Trustee will assign a CUSIP number to
the Global Security from a list of CUSIP numbers previously delivered to the
applicable Trustee by the Company representing such Book-Entry Security and then
advise the Company and the Selling Agent or Purchasing Agent, as the case may
be, of such CUSIP number as soon as practicable.
C. The applicable Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the following settlement
information to DTC, and DTC shall forward such information to such Agent and
Standard & Poor's Corporation:
(1) The applicable Sale Information;
A-4
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the participant account maintained by DTC on behalf of
the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security.
D. The applicable Trustee will complete the Global Security, in the form
previously approved by the Company, the Agents and the applicable Trustee.
E. The applicable Trustee will authenticate the Global Security
representing such Book-Entry Security.
F. DTC will credit such Book-Entry Security to the applicable Trustee's
participant account at DTC.
G. The applicable Trustee will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC to (i) debit such Book-Entry
Security to the applicable Trustee's participant account and credit such Book-
Entry Security to such Agent's participant account at DTC, and (ii) debit such
Agent's settlement account and credit the applicable Trustee's settlement
account for an amount equal to the price of such Book-Entry Security less such
Agent's commission. The entry of such a deliver order shall constitute a
representation and warranty by the applicable Trustee to DTC that (a) the Global
Security representing such Book-Entry Security has been issued and authenticated
and (b) the applicable Trustee is holding such Global Security pursuant to the
applicable Certificate Agreement.
H. Unless the relevant Agent is the end purchaser of such security, such
Selling or Purchasing Agent, as the case may be, will enter an SDFS deliver
order through DTC's Participant Terminal System instructing DTC (i) to debit
such Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
J. Upon confirmation of receipt of funds, the applicable Trustee will
transfer to such account as the Company may have previously specified to the
applicable Trustee, in funds
A-5
available for immediate use in the amount transferred to the applicable Trustee
in accordance with Settlement Procedure "G".
K. Unless the relevant Agent is the end purchaser of such security, such
Selling or Purchasing Agent, as the case may be, will confirm the purchase of
such Book-Entry Security to the purchaser either by transmitting to the
participants with respect to such Book-Entry Security a confirmation order or
orders through DTC's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. At any time upon request, the applicable Trustee will send to the
Company a statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the applicable Indenture.
M. DTC will, at any time, upon request of the Company or the applicable
Trustee, promptly furnish to the Company or the applicable Trustee a list of the
names and addresses of the participants for whom DTC has credited Book-Entry
Securities.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Security and arrange
to have delivered to the Selling Agent or Purchasing Agent, as the case may be,
such numbers of such Pricing Supplement as the Agent may reasonably request, not
later than 11:00 a.m., New York City time, on the Business Day following the
Trade Date (as defined below). The Company will arrange to file a copy of the
Pricing Supplement with the Commission not later than the close of business of
the Commission on the second Business Day following the date on which such
Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant Agent
will provide a copy of such Pricing Supplement to each investor or purchaser of
the relevant Book-Entry Security or its agent. Pursuant to Rule 434 under the
Securities Act, the Pricing Supplement may be delivered separately from the
Prospectus. Outdated Pricing Supplements (other than those retained for files)
will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry
A-6
Security shall constitute "settlement" with respect to such Book-Entry Security.
All orders of Book-Entry Securities solicited by a Selling Agent or made by a
Purchasing Agent and accepted by the Company on a particular date (the "Trade
Date") will be settled on a date (the "Settlement Date") which is on or before
the third Business Day after the Trade Date pursuant to the "Settlement
Procedure Timetable" set forth below, unless the Company and the purchaser agree
to settlement on another day, which shall be no earlier than the next Business
Day after the Trade Date.
Settlement Procedure Timetable:
For offers to purchase Book-Entry Securities solicited by a Selling Agent
and accepted by the Company for settlement on the first Business Day after the
Trade Date, Settlement Procedures "A" through "L" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
---------------- -------------------------------------
A 11:00 a.m. on the Trade Date
B 12:00 noon on the Trade Date
C 2:00 p.m. on the Trade Date
D 3:00 p.m. on the day before
the Settlement Date
E 9:00 a.m. on the Settlement Date
F 10:00 a.m. on the Settlement Date
G-H 2:00 p.m. on the Settlement Date
I 4:45 p.m. on the Settlement Date
J-K 5:00 p.m. on the Settlement Date
If a sale is to be settled more than one Business Day after the Trade Date,
Settlement Procedures A, B and C shall be completed as soon as practicable but
in no event later that 11:00 a.m., 12:00 noon and 2:00 p.m., as the case may be,
on the first Business Day after the Trade Date. If the initial interest rate for
a Floating Rate Book-Entry Security has not been determined at the time that
Settlement Procedure "A" is completed and the Settlement Date is at least three
Business Days after the Trade Date, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no later than 12:00 noon
and 2:00 p.m., respectively, on the second Business Day immediately preceding
the Settlement Date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or cancelled, the
applicable Trustee, upon obtaining knowledge thereof, will deliver to DTC,
through DTC's Participant Terminal System, a cancellation message to such effect
by no later than 2:00 p.m. on the Business Day immediately preceding the
scheduled Settlement Date.
A-7
Failure to Settle:
If the applicable Trustee fails to enter an SDFS deliver order with respect
to a Book-Entry Security pursuant to Settlement Procedure "G", the applicable
Trustee may deliver to DTC, through DTC's Participant Terminal System, as soon
as practicable a withdrawal message instructing DTC to debit such Book-Entry
Security to the applicable Trustee's participant account, provided that the
applicable Trustee's participant account contains a principal amount of the
Global Security representing such Book-Entry Security that is at least equal to
the principal amount to be debited. If a withdrawal message is processed with
respect to all the Book-Entry Securities represented by a Global Security, the
applicable Trustee will mark such Global Security "cancelled," make appropriate
entries in the applicable Trustee's records and send such cancelled Global
Security to the Company. The CUSIP number assigned to such Global Security
shall, in accordance with the procedures of the CUSIP Service Bureau of Standard
& Poor's Corporation, be cancelled and not immediately reassigned. If a
withdrawal message is processed with respect to one or more, but not all, of the
Book-Entry Securities represented by a Global Security, the applicable Trustee
will exchange such Global Security for two Global Securities, one of which shall
represent such Book-Entry Security or Securities and shall be cancelled
immediately after issuance and the other of which shall represent the remaining
Book-Entry Securities previously represented by the surrendered Global Security
and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC, acting
on behalf of such purchaser), such participants and, in turn, the Agent for such
Book-Entry Security may enter delivery orders through DTC's Participant Terminal
System debiting such Book-Entry Security to such participant's account and
crediting such Book-Entry Security to such Agent's account and then debiting
such Book-Entry Security to such Agent's participant account and crediting such
Book-Entry Security to the applicable Trustee's participant account and shall
notify the Company and the applicable Trustee thereof. Thereafter, the
applicable Trustee will (i) immediately notify the Company of such order and the
Company shall transfer to such Agent funds available for immediate use in an
amount equal to the price of such Book-Entry Security which was credited to the
account of the Company maintained at the applicable Trustee in accordance with
Settlement Procedure J, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Securities to have been
represented by a Global Security, the applicable Trustee will provide, in
accordance with Settlement Procedures "D", "E" and "G", for the authentication
and issuance of a Global Security representing the other Book-Entry Securities
to have been represented by such Global Security and will make appropriate
entries in its records. The
A-8
Company will, from time to time, furnish the applicable Trustee with a
sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Issuance:
Each Certificated Security will be dated and issued as of the date of its
authentication by the applicable Trustee. Each Certificated Security will bear
an Original Issue Date, which will be (i) with respect to an original
Certificated Security (or any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with respect to any Certificated
Security (or portion thereof) issued subsequently upon transfer or exchange of a
Certificated Security or in lieu of a destroyed, lost or stolen Certificated
Security, the original issuance date of the predecessor Certificated Security,
regardless of the date of authentication of such subsequently issued
Certificated Security.
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the applicable
Trustee.
A. Communication of Sale Information to the Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly on the Sale Date
the following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Certificated Securities to be purchased;
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(2) If a Fixed Rate Certificated Security, the interest rate, the Interest
Payment Dates and the initial Interest Payment Date;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) If denominated or payable in a currency other than U.S. dollars, the
relevant provisions relating thereto;
(7) If payments thereon are to be determined by reference to an index, the
relevant provisions relating thereto;
(8) issue price;
(9) Selling Agent's commission or Purchasing Agent's discount, as the case
may be;
(10) Net proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, provisions
relating to such redemption or repayment;
(12) If a Floating Rate Certificated Security, such of the following as are
applicable:
(i) Base Rate,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) maximum rate,
(v) minimum rate,
(vi) initial interest rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
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(13) Name, address and taxpayer identification number of the registered
owner(s) and address for payment of principal and interest;
(14) Denomination of certificates to be delivered at settlement;
(15) original issue discount provisions, if any;
(16) Selling Agent or Purchasing Agent;
(17) Any other applicable terms.
B. The Company will advise the applicable Trustee by telephone or
electronic transmission (confirmed in writing at any time on the same date) of
the information set forth in Settlement Procedure "A" above.
C. The Company will have delivered to the applicable Trustee a pre-
printed four-ply packet for such Certificated Security, which packet will
contain the following documents in forms that have been approved by the Company,
the relevant Agent and the applicable Trustee:
(1) Security with customer confirmation;
(2) Stub One - For the applicable Trustee;
(3) Stub Two - For the relevant Agent; and
(4) Stub Three - For the Company.
D. The applicable Trustee will complete such Certificated Security and
authenticate such Certificated Security and deliver it (with the confirmation)
and Stubs One and Two to the relevant Agent, and such Agent will acknowledge
receipt of the Certificated Security by stamping or otherwise marking Stub One
and returning it to the applicable Trustee. Such delivery will be made only
against such acknowledgment of receipt and evidence that instructions have been
given by such Agent for payment to the account of the Company at such account as
the Company shall have specified to such Agent and the applicable Trustee, in
immediately available funds, of an amount equal to the price of such
Certificated Security less such Agent's commission. In the event that the
instructions given by such Agent for payment to the account of the Company are
revoked, the Company will as promptly as possible wire transfer to the account
of such Agent an amount of immediately available funds equal to the amount of
such payment made and such Agent will as promptly as possible return the
Certificated Security and all Stubs to the Company.
E. Unless the relevant Agent is the end purchaser of such Certificated
Security, such Agent will deliver such Certificated Security (with confirmation)
to the customer against payment in immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Certificated Security by retaining
Stub Two.
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F. The applicable Trustee will send Stub Three to the Company by first-
class mail. At any time upon request from an Agent, the applicable Trustee will
also send to the Company a statement setting forth the principal amount of the
Certificated Securities outstanding as of that date under the applicable
Indenture and setting forth a brief description of any sales of which the
Company has advised the applicable Trustee that have not yet been settled.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, such number of such Pricing Supplement as the Agent may
reasonably request, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to file a copy of the
Pricing Supplement with the Commission not later than the close of business of
the Commission on the second Business Day following the date on which such
Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant Agent
will provide a copy of such Pricing Supplement to each investor or purchaser of
the relevant Certificated Security or its agent. Pursuant to Rule 434 under the
Securities Act, the Pricing Supplement may be delivered separately from the
Prospectus. Outdated Pricing Supplements (other than those retained for files)
will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
The receipt by the Company of immediately available funds in exchange for
an authenticated Certificated Security delivered to the relevant Agent and, if
applicable, such Agent's delivery of such Certificated Security against receipt
of immediately available funds, shall constitute "settlement" with respect to
such Security. All offers of Certificated Securities solicited by a Selling
Agent or made by a Purchasing Agent and accepted by the Company will be settled
on a date (the "Settlement Date") which is the third Business Day after the date
of acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another Business Day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00 a.m., New York
City time, on the date of such acceptance.
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For sales by the Company of Certificated Securities to a Purchasing Agent
or through a Selling Agent (unless otherwise specified pursuant to a Terms
Agreement), Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times in New York City set forth below:
Settlement
Procedure Time
--------------- ----------------------------------------------
A 2:00 p.m. on the Business Day
before Settlement Date
B 3:00 p.m. on the Business Day
before Settlement Date
C-D 12:00 noon on Settlement Date
E 12:00 noon on Settlement Date
F 5:00 p.m. on Settlement Date
If the Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities, Settlement Procedure "B" will be given by the
Company by 11:00 a.m., New York City time.
The Company shall not use any proceeds advanced by a Selling Agent to
acquire securities prior to the Selling Agent receiving the Certificated
Securities from the Company.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the applicable Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the
applicable Trustee. Immediately upon receipt of such Certificated Security by
the applicable Trustee, the Company will return to the Selling Agent an amount
equal to the amount previously paid to the Company in respect of such
Certificated Security. Such wire transfer will be made on the Settlement Date,
if possible, and in any event not later than the Business Day following the
Settlement Date. If the failure shall have occurred for any reason other than a
default by such Selling Agent in the performance of its obligations hereunder
and under the Distribution Agreement, then the Company will reimburse the
Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company.
The applicable Trustee will cancel the Certificated Security in respect of
which the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
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