Exhibit 4.1
FOURTH SUPPLEMENTAL
INDENTURE
BETWEEN
WELLS FARGO &
COMPANY
AND
CITIBANK, N.A.
Dated as of December 10,
2008
SUPPLEMENTAL TO INDENTURE
DATED JULY 21, 1999
THIS FOURTH SUPPLEMENTAL INDENTURE
dated as of December 10, 2008 between WELLS FARGO &
COMPANY, a Delaware corporation (the “ Issuer
”), and CITIBANK, N.A., as trustee (the “
Trustee ”).
W I T N E S S E T H :
WHEREAS, the Issuer and the Trustee
are parties to that certain Indenture dated as of July 21,
1999 (the “ Indenture ”);
WHEREAS, on November 21, 2008,
the Federal Deposit Insurance Corporation (“ FDIC
”) issued its Final Rule, 12 C.F.R. Part 370 (the
“ Rule ”), establishing the FDIC’s
Temporary Liquidity Guarantee Program;
WHEREAS, the Issuer has entered into
a master agreement by and between the Issuer and the FDIC, dated
December 5, 2008 (the “ FDIC Master Agreement
”) pursuant to which the FDIC agrees to guarantee payments
with respect to certain Debt Securities that are eligible for such
guarantee under the Rule (the “ Guaranteed Securities
”) and the Issuer agrees to reimburse and make whole the
FDIC;
WHEREAS, pursuant to the FDIC Master
Agreement, the Issuer agreed to incorporate into the Indenture
governing any of its Guaranteed Securities certain provisions set
out in the FDIC Master Agreement and desires to incorporate such
provisions into the Indenture by entering into this Fourth
Supplemental Indenture;
WHEREAS, Section 901 of the
Indenture provides that, without the consent of the Holders (as
defined in the Indenture), the Issuer, when authorized by a Board
Resolution (as defined in the Indenture), and the Trustee may enter
into indentures supplemental to the Indenture under certain
circumstances provided therein;
WHEREAS, the entry into this Fourth
Supplemental Indenture by the parties hereto is in all respects
authorized by the provisions of the Indenture; and
WHEREAS, all things necessary to
make this Fourth Supplemental Indenture a valid agreement of the
Issuer, in accordance with its terms, and a valid amendment of, and
supplement to, the Indenture have been done;
NOW, THEREFORE:
In consideration of the premises and
the purchases of the Debt Securities by the Holders thereof, the
Issuer and the Trustee mutually covenant and agree for the equal
and proportionate benefit of the respective Holders from time to
time of Guaranteed Securities, as follows:
ARTICLE 1
Section 1.01. The Indenture is
hereby amended by the insertion of a new Article Sixteen which
shall provide as follows:
ARTICLE SIXTEEN
FDIC Guaranteed Senior Unsecured
Debt
Section 16.01.
Acknowledgement of the FDIC’s Debt Guarantee Program.
The parties to this Indenture acknowledge that the Issuer has not
opted out of the debt guarantee program (the “ Debt
Guarantee Program ”) established by the Federal Deposit
Insurance Corporation (the “ FDIC ”) under its
Temporary Liquidity Guarantee Program on November 21, 2008
pursuant to the FDIC’s Final Rule, 12 C.F.R. Part 370 (as may
be amended or supplemented from time to time, the “
Rule ”). The Debt Guarantee Program applies to any
Debt Securities issued on or after October 14, 2008 through
June 30, 2012 (the “ Effective Period ”)
that constitute senior unsecured debt, as defined in the Rule and
as to which the Issuer has not duly made an opt-out election in
accordance with Section 370.5(c) of the Rule (the “
Guaranteed Securities ”). As a result, this debt is
guaranteed under the FDIC Temporary Liquidity Guarantee Program and
is backed by the full faith and credit of the United States. The
details of the FDIC guarantee are provided in the FDIC’s
regulations, 12 CFR Part 370, and at the FDIC’s website,
www.fdic.gov/tlgp. The expiration date of the FDIC’s
guarantee is the earlier of the maturity date of this debt or
June 30, 2012.
The security certificate, note or
other instrument evidencing each Guaranteed Security shall bear a
legend, upon which the Representative (as defined below) shall be
entitled to conclusively rely, to the effect that such security
certificate, note or other instrument is guaranteed by the FDIC
under the Debt Guarantee Program.
Section 16.02. Trustee as
Representative of Holders.
(a) The Trustee and its successors
are designated as the duly authorized representatives of the
Holders for purposes of making claims and taking other permitted or
required actions under the Debt Guarantee Program (the “
Representative ”). Any Holder may elect not to be
represented by the Representative by providing written notice of
such election to the Representative (it being understood that such
election shall not affect the Trustee’s capacity hereunder
except as the representative of such Holder under the Debt
Guarantee Program).
2
(b) Upon an uncured failure by the
Issuer to make a timely payment of principal or interest under any
Guaranteed Securities (a “ Payment Default ”),
the Representative, on behalf of all Holders of such Guaranteed
Securities that are represented by the Representative, shall submit
to the FDIC a demand for payment by the FDIC of such unpaid
principal and interest, together with proof of such claim and such
other documentation as may be required by the FDIC under the Rule
(i) in the case of any Payment Default prior to maturity of
the Guaranteed Securities, promptly, and in no event later than the
earlier of the end of the applicable cure period and 60 days
following such Payment Default and (ii) in the case of any
payment due on the maturity date for the Guaranteed Securities, on
such maturity date.
Section 16.03.
Subrogation. The FDIC shall be subrogated to all of the
rights of the Holders of Guaranteed Securities and the
Representative with respect to such Guaranteed Securities under
this Indenture against the Issuer in respect of any amounts paid to
the Holders of the Guaranteed Securities, or for the benefit of the
Holders of the Guaranteed Securities, by the FDIC pursuant to the
Debt Guarantee Program.
Section 16.04. Assignment
upon Guarantee Payment. The Holders of Guaranteed Securities,
by their acceptance of the Guaranteed Securities, authorize the
Representative, at such time as the FDIC shall commence making any
guarantee payments to the Representative for the benefit of the
Holders of Guaranteed Securities pursuant to the Debt Guarantee
Program (each, a “ Guarantee Payment ”), to
execute an assignment in the form attached hereto as Annex A,
pursuant to which the Representative shall assign to the FDIC its
right as Representative to receive any and all payments from the
Issuer under this Indenture on behalf of the Holders of Guaranteed
Securities. The Issuer hereby consents and agrees that the FDIC is
an acceptable transferee for all or any portion of the Guaranteed
Securities for all purposes of this Indenture and upon any such
assignment, the FDIC shall be deemed a Holder under this Indenture
for all purposes hereof, and the Issuer hereby agrees to take such
reasonable steps as are necessary to comply with any relevant
provision of this Indenture as a result of such
assignment.
If a Holder of Guaranteed Securities
has exercised its right not to be represented by the
Representative, such Holder of Guaranteed Securities, by its
acceptance of the Guaranteed Securities, agrees that, at such time
as the FDIC shall commence making any Guarantee Payments to the
Holder pursuant to the Debt Guarantee Program, such Holder shall
execute an assignment in the form attached hereto as Annex A,
pursuant to which such Holder shall assign to the FDIC its right to
receive any and all payments from the Issuer under this
Indenture.
Section 16.05. Surrender of
Guaranteed Securities
