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Exhibit 1.1
Wells Fargo Capital
XII
7.875 % Enhanced
Trust Preferred Securities (Enhanced T RU
PS®)
($25 liquidation
amount)
guaranteed to the extent
set forth in the Guarantee Agreement by
Wells Fargo &
Company
Underwriting
Agreement
March 5, 2008
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Wells Fargo Capital XII, a
statutory trust created under the laws of the State of Delaware
(the “Trust”), proposes to sell to the underwriters
named in Schedule II hereto (the “Underwriters”), for
whom you are acting as Representatives (the
“Representatives”), 56,000,000 of its 7.875% Enhanced
Trust Preferred Securities (Enhanced T RU PS®),
$25 liquidation amount (the “Firm Securities”). The
Trust also proposes to sell to the Underwriters not more than an
additional 8,400,000 of its 7.875% Enhanced Trust Preferred
Securities (Enhanced T RU PS®), $25 liquidation
amount (the “Additional Securities”), in order to cover
over-allotments, if any, if and to the extent that the
Representatives shall have determined to exercise the right to
purchase such securities granted to the Underwriters in
Section 2 hereof. The Firm Securities and the Additional
Securities are hereinafter collectively referred to as the
“Capital Securities”. If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms “Underwriters”
and “Representatives”, as used herein, shall each be
deemed to refer to such firm or firms.
The Capital Securities will
be guaranteed (the “Guarantee”) by Wells
Fargo & Company, a Delaware corporation (“Wells
Fargo” or the “Guarantor”), to the extent
described in a Guarantee Agreement to be dated as of March 12,
2008 (the “Guarantee Agreement”) between the Guarantor
and The Bank of New York Trust Company, N.A., as trustee (the
“Guarantee Trustee”). The Trust will use the proceeds
from the sale of the Capital Securities and the sale of the Trust
Common Securities (as defined below) pursuant to the Note Purchase
Agreement to be dated as of March 12, 2008 between the Trust
and the Guarantor (the “Note Purchase Agreement”), to
purchase from the Guarantor $1,400,010,000 aggregate principal
amount of its 7.875% junior subordinated deferrable interest
debentures due 2068 (the “Notes”) to be
issued
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under an Indenture dated as of
August 1, 2005 between the Guarantor and The Bank of New York
Trust Company, N.A. (successor to J.P. Morgan Trust Company,
National Association), as trustee (the “Note Trustee”),
as supplemented by the First Supplemental Indenture dated as of
December 5, 2006, the Second Supplemental Indenture dated as
of May 25, 2007 and the Third Supplemental Indenture to be
dated as of March 12, 2008 between the Guarantor and the Note
Trustee (collectively, the “Indenture”). The Guarantor
will also be the holder of one hundred percent of the common
securities representing undivided beneficial interests in the
assets of the Trust (the “Trust Common Securities”).
The Trust was created under Delaware law pursuant to a Declaration
of Trust and Trust Agreement dated as of April 22, 2004
executed by Wells Fargo, as depositor, and by Richard D. Levy and
Saturnino S. Fanlo, as administrative trustees of the Trust and by
Wilmington Trust Company, as Delaware trustee (the “Delaware
Trustee”), as amended by the Amended and Restated Declaration
of Trust and Trust Agreement (the “Trust Agreement”)
among Wells Fargo, the administrative trustees named therein (the
“Administrative Trustees”), the Delaware Trustee and
the property trustee named therein (the “Property
Trustee”) to be dated as of March 12, 2008. Under the
terms of the Trust Agreement, the Guarantor shall pay, under
certain circumstances, certain expenses of the Trust.
1. Representations and
Warranties . Each of the Trust and the Guarantor jointly and
severally represent and warrant to, and agree with, each
Underwriter that:
(a) The Trust and the
Guarantor meet the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the “Act”) and have
filed with the Securities and Exchange Commission (the
“Commission”) an automatic shelf registration statement
on such Form as defined in Rule 405 under the Act (the file number
of which is set forth in Schedule I hereto) for the
registration under the Act of the Capital Securities, the Guarantee
and the Notes. Such registration statement, including any
amendments thereto, became effective upon filing. The Trust and the
Guarantor propose to file with the Commission pursuant to
Rule 424 under the Act a supplement to the form of prospectus
included in such registration statement relating to the Capital
Securities, the Guarantee and the Notes in substantially the form
heretofore delivered to you. Such registration statement, including
all exhibits thereto (but excluding the Statements of Eligibility
on Form T-1), as amended at the date of this Agreement, and
including any prospectus supplement relating to the Capital
Securities, the Guarantee and the Notes that is filed with the
Commission pursuant to Rule 424(b) under the Act and deemed part of
such registration statement pursuant to Rule 430B under the Act, is
hereinafter called the “Registration Statement”; such
prospectus relating to the Capital Securities, the Guarantee and
the Notes in the form in which it appears in the Registration
Statement is hereinafter called the “Basic Prospectus”
and such supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424(b)
(including the Basic Prospectus as so supplemented) is hereinafter
called the “Final Prospectus”. Any preliminary form of
the Final Prospectus which has been or will be filed pursuant to
Rule 424 is hereinafter called the “Preliminary Final
Prospectus”. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were
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filed under the Securities
Exchange Act of 1934 (the “Exchange Act”) on or before
the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the
terms “amend”, “amendment” or
“supplement” with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the date of
this Agreement, or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case
may be, and deemed to be incorporated therein by
reference.
(b) As of the date hereof,
when the Final Prospectus is first filed pursuant to
Rule 424(b) under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement
becomes effective (including the filing of any document
incorporated by reference in the Registration Statement), when any
supplement to the Final Prospectus is filed with the Commission and
at the Closing Date (as hereinafter defined), (i) the
Registration Statement, as amended as of any such time, and the
Final Prospectus, as amended or supplemented as of any such time,
the Indenture, the Trust Agreement and the Guarantee Agreement will
comply in all material respects with the applicable requirements of
the Act, the Trust Indenture Act of 1939 (the “Trust
Indenture Act”) and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as
amended as of any such time, nor the Final Prospectus, as amended
or supplemented as of any such time, will contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that
the Trust and the Guarantor make no representations or warranties
as to (i) that part of the Registration Statement which shall
constitute the Statements of Eligibility on Form T-1 under the
Trust Indenture Act of the Note Trustee, the Guarantee Trustee and
the Property Trustee, or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus or
any amendment thereof or supplement thereto in reliance upon and in
conformity with information furnished in writing to the Trust or
the Guarantor by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus
(it being understood and agreed that the only such information
contained in the Registration Statement or Final Prospectus
furnished by any Underwriter consists of such information described
as such in a letter dated the Closing Date the (“Blood
Letter”) delivered by the Representatives to the Trust and
the Guarantor).
(c) At the Applicable Time,
the Disclosure Package does not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The preceding sentence
does not apply to statements in or omissions from the Disclosure
Package based upon and in conformity with written information
furnished to the Trust or the Guarantor by
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any Underwriter through the
Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by or on behalf
of any Underwriter consists of the information described as such in
the Blood Letter.
(d)(i) At the time of filing
the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with
Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Sections 13 or 15(d) of the Exchange Act or form of prospectus) and
(iii) at the time the Trust or the Guarantor or any person
acting on their behalf (within the meaning, for this clause only,
of Rule 163(c) under the Act) made any offer relating to the
Capital Securities, the Guarantee and the Notes in reliance on the
exemption in Rule 163 under the Act, the Trust and the Guarantor
were or are (as the case may be) each a “well-known seasoned
issuer” as defined in Rule 405 under the Act. The Guarantor
agrees to pay the fees required by the Commission relating to the
Capital Securities, the Guarantee and the Notes within the time
required by Rule 456(b)(1) under the Act without regard to the
proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the Act.
(e) At the earliest time
after the filing of the Registration Statement that the Trust, the
Guarantor or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Act) of the Capital
Securities, the Guarantee and the Notes, each of the Trust and the
Guarantor was not and is not an Ineligible Issuer (as defined in
Rule 405 under the Act), without taking account of any
determination by the Commission pursuant to Rule 405 that it is not
necessary that the Trust and the Guarantor be considered an
Ineligible Issuer.
(f) Each Issuer Free Writing
Prospectus does not include any information that conflicts with the
information contained in the Registration Statement, including any
document incorporated therein and any prospectus supplement deemed
to be a part thereof that has not been superseded or modified. The
foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Trust or the
Guarantor by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that
the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in the
Blood Letter.
(g) Certain Definitions. For
purposes hereof:
(i) “Disclosure
Package” shall mean (A) the Basic Prospectus, as amended
and supplemented to the Applicable Time, including the Preliminary
Final Prospectus, (B) the Issuer Free Writing Prospectuses
identified in Schedule III hereto, and (C) any other Free
Writing Prospectus that the parties hereto shall hereafter
expressly agree in writing to treat as part of the Disclosure
Package.
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(ii) “Applicable
Time” shall mean the Applicable Time listed in Schedule I
hereto.
(iii) “Free Writing
Prospectus” shall mean a free writing prospectus, as defined
in Rule 405 under the Act.
(iv) “Issuer Free
Writing Prospectus” shall mean an issuer free writing
prospectus, as defined in Rule 433 under the Act, that (A) is
required to be filed with the Commission by the Trust or the
Guarantor or (B) is exempt from filing pursuant to Rule
433(d)(5)(i) because it contains a description of the Capital
Securities, the Guarantee and the Notes or the offering that does
not reflect the final terms.
2. Purchase and Sale
.
(a) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Trust agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Trust, the number of the Firm Securities set forth
opposite such Underwriter’s name in Schedule II hereto
at a purchase price of $25 (the “Purchase Price”) per
Firm Security, plus any accumulated distributions
thereon.
(b) Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Trust agrees to sell to the Underwriters the
Additional Securities to cover over-allotments, if any. The
Underwriters shall have the right (the “Over-allotment
Option”) to purchase up to 8,400,000 of Additional Securities
at the Purchase Price per Additional Security, plus any accumulated
distributions thereon. The Over-allotment Option may consist of the
Pre-Closing Component and/or the Post-Closing Component, but shall
in no event exceed 8,400,000 of Additional Securities in the
aggregate.
(c) Prior to the Closing
Date, the Underwriters may exercise the Over-allotment Option one
or more times until 1:00 p.m., Central Time, on the business day
prior to the Closing Date (the “Pre-Closing
Component”). If the Underwriters exercise the Pre-Closing
Component, for each exercise the Representatives shall notify the
Trust and the Guarantor in writing of such exercise no later than
1:00 p.m., Central time, on the business day prior to the Closing
Date. Each such notice shall specify the number of Additional
Securities to be purchased by the Underwriters. The Trust agrees to
sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from the Trust, the number of
Additional Securities specified in each such notice proportionate
to such Underwriter’s purchase of Firm Securities set forth
on Schedule II hereto. The closing of the purchase of Additional
Securities pursuant to each exercise of the Pre-Closing Component
shall occur on the Closing Date.
(d) Following the Closing
Date, the Underwriters shall have a one time right to exercise the
Over-allotment Option within thirty (30) days of the date of
this Agreement (the “Post-Closing Component”). If the
Underwriters exercise the Post-Closing Component, the
Representatives shall notify the Trust and the Guarantor in writing
at any time on or prior to 3:00 p.m. Central time on the fifth
(5th) business day prior to April 4, 2008, which notice
shall specify the number of Additional Securities to be purchased
by the Underwriters. The Trust agrees to
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sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the
Trust, the number of Additional Securities specified in such notice
proportionate to such Underwriter’s purchase of Firm
Securities set forth on Schedule II hereto.
(f) In consideration of such
purchases on the Closing Date and the Additional Closing Date (if
applicable), the proceeds of which will be used to purchase the
Notes, the Guarantor shall pay to the Underwriters as compensation,
in immediately available funds, on the Closing Date and the
Additional Closing Date (if applicable) the commission per Capital
Security set forth on Schedule I hereto.
3. Delivery and
Payment . Delivery of and payment for the Firm Securities and
the Additional Securities covered by any exercise of the
Pre-Closing Component (collectively, the “Closing Date
Securities”) shall be made at the office, on the date and at
the time specified in Schedule I hereto, which date and time
may be postponed by agreement among the Representatives, the Trust
and the Guarantor or as provided in Section 8 hereof (such
date and time of delivery and payment for the Closing Date
Securities being herein called the “Closing
Date”).
Delivery of and payment for
the Additional Securities covered by any exercise of the
Post-Closing Component (the “Additional Closing Date
Securities”) shall be made at the offices of
Faegre & Benson LLP, 2200 Wells Fargo Center, 90 South
Seventh Street, Minneapolis, Minnesota 55402, at 10:00 a.m.,
New York City time, on the date specified in the notice described
in Section 2(d), which shall be the fifth (5th) business
day following the exercise of the Post-Closing Component (unless
the Representatives, the Trust and the Guarantor otherwise agree in
writing) (such date and time of delivery and payment for the
Additional Closing Date Securities being herein called the
“Additional Closing Date”).
Delivery of the Closing Date
Securities and the Additional Closing Date Securities (if
applicable) shall be made to the Representatives for the respective
accounts of the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase price
thereof in the manner set forth in Schedule I hereto and this
Section 3, as applicable. The Trust will deliver against
payment of the purchase price the Closing Date Securities and the
Additional Closing Date Securities (if applicable) in the form of
one or more permanent global securities in definitive form
deposited with or on behalf of Wells Fargo Bank, N.A. as custodian
for The Depository Trust Company (“DTC”) for credit to
the respective accounts of the Underwriters and registered in the
name of Cede & Co., as nominee for DTC. Interests in the
permanent global Capital Securities will be held only in book-entry
form through DTC, except in the limited circumstances described in
the Final Prospectus.
4. Agreements . The
Trust and the Guarantor jointly and severally agree with the
several Underwriters that:
(a) The Trust or the
Guarantor will provide to counsel for the Underwriters one manually
executed copy of the Registration Statement, including all exhibits
thereto, in the form it became effective and all amendments
thereto. Prior to the Closing Date, the Trust and the Guarantor
will not file any amendment of the Registration Statement or
supplement (including the Final
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Prospectus) to the Basic
Prospectus unless the Trust or the Guarantor has furnished you a
copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object
promptly after notice thereof. Neither the Representatives’
consent to, nor the Underwriters’ delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof. Subject to the
foregoing sentence, the Trust and the Guarantor will cause the
Final Prospectus to be filed pursuant to Rule 424(b) under the
Act not later than the close of business on the second business day
following the execution and delivery of this Agreement. The Trust
and the Guarantor will promptly advise the Representatives
(i) when the Final Prospectus shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when any
amendment to the Registration Statement relating to the Capital
Securities, the Guarantee and the Notes shall have become
effective, (iii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or
supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement, or of any notice that would prevent its use, or the
institution or threatening of any proceeding for that purpose and
(v) of the receipt by the Trust or the Guarantor of any
notification with respect to the suspension of the qualification of
the Capital Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. In
the event of the issuance of any stop order preventing or
suspending the use of any Preliminary Final Prospectus or Final
Prospectus, the Trust and the Guarantor will use promptly their
best efforts to obtain the withdrawal of such stop
order.
(b) The Trust or the
Guarantor will prepare a final term sheet in a form approved by you
and will file such term sheet pursuant to Rule 433(d)(5)(ii) under
the Act within the time required by such Rule. Any such final term
sheet shall be an Issuer Free Writing Prospectus.
(c) If there occurs an event
or development as a result of which the Disclosure Package would
include an untrue statement of a material fact or would omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not
misleading, the Trust or the Guarantor will notify promptly the
Representatives so that any use of the Disclosure Package may cease
until it is amended or supplemented.
(d) If, at any time when a
prospectus relating to the Capital Securities, the Guarantee and
the Notes is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to
Rule 172 under the Act), any event occurs as a result of which the
Final Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or if it
shall be necessary to amend or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules
thereunder, including in
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connection with the use or
delivery of the Final Prospectus, the Trust or the Guarantor will
promptly notify you and, upon your request, the Trust and the
Guarantor will prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the
Representatives’ request for, nor the Underwriters’
delivery of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 5
hereof.
(e) As soon as practicable,
the Guarantor, on behalf of the Trust, will make generally
available to the Trust’s security holders an earnings
statement or statements of the Guarantor and the Guarantor’s
subsidiaries which will satisfy the provisions of
Section 11(a) of the Act.
(f) The Trust and the
Guarantor will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall
become effective on or prior to the Closing Date and, so long as
delivery of a prospectus by an Underwriter or dealer may be
required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172 under the Act),
as many copies of any Preliminary Final Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus included in the
Disclosure Package and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The
Guarantor will pay the expenses of printing or other production of
all documents relating to the offering and the expenses incurred in
distributing the Final Prospectus to the Underwriters.
(g) The Trust and the
Guarantor will arrange for the qualification of the Capital
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications
in effect so long as required to complete the distribution of the
Capital Securities; provided , however , that each of
the Trust and the Guarantor shall not be required to qualify to do
business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now so
subject or subject itself to taxation in any jurisdiction where it
is not now so subject.
(h) During the 30 day period
following the date of this Agreement, neither the Guarantor nor any
of its subsidiaries or other affiliates over which the Guarantor
exercises management or voting control, nor any person acting on
their behalf, will, without the prior written consent of the
Representatives, offer, sell, contract to sell or otherwise dispose
of any securities that are substantially similar to the Capital
Securities, with the exclusion of market making activities carried
out by any of the Guarantor’s affiliated brokers.
(i) The Trust and the
Guarantor agree to use all commercially reasonable efforts to
obtain and maintain the listing of the Capital Securities on the
New York Stock Exchange until such time as none of the Capital
Securities
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are outstanding. If the
Capital Securities cease to be listed on the New York Stock
Exchange, the Trust and the Guarantor agree to use all commercially
reasonable efforts promptly to list the Capital Securities on a
stock exchange agreed upon by the Trust, the Guarantor and the
Representatives. The Trust and the Guarantor will use all
commercially reasonable efforts to comply with the rules of the New
York Stock Exchange and will otherwise comply with any undertakings
given by it from time to time to the New York Stock Exchange in
connection with the Capital Securities listed thereon or the
listing thereof and, without prejudice to the generality of the
foregoing, to furnish or cause to be furnished to the New York
Stock Exchange all such information as it may require in connection
with the listing thereon of the Capital Securities. In the event
the Notes are distributed to the holders of the Capital Securities,
the Trust and the Guarantor agree to use all commercially
reasonable efforts to obtain and maintain the listing of the Notes
on the New York Stock Exchange or any other stock exchange on which
the Capital Securities are then listed until such time as none of
the Notes are outstanding.
(j) The Trust and the
Guarantor each agree that, unless it obtains the prior written
consent of the Representatives, and each Underwriter, severally and
not jointly, agrees with the Trust and the Guarantor that, unless
it has obtained or will obtain, as the case may be, the prior
written consent of the Trust and the Guarantor, it has not made and
will not make any offer relating to the Capital Securities, the
Guarantee and the Notes that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a Free
Writing Prospectus required to be filed with the Commission or
retained by the Trust or the Guarantor under Rule 433 under the
Act; provided that the prior written consent of the parties hereto
shall be deemed to have been given in respect of the Free Writing
Prospectuses included in Schedule III hereto. Any such Free Writing
Prospectus consented to by the Representatives or the Trust and the
Guarantor is hereinafter referred to as a “Permitted Free
Writing Prospectus.” The Trust and the Guarantor each agree
that (A) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (B) it has complied and will comply, as the
case may be, with the requirements of Rules 164 and 433 under the
Act applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the Commission, legending and
record keeping.
(k) The Guarantor will pay
all expenses incident to the performance of the Trust’s and
its obligations under this Agreement, for any filing fees or other
expenses (including fees and disbursements of counsel) in
connection with qualification of the Capital Securities for sale
and determination of their eligibility for investment under the
laws of such jurisdictions as the Representatives may designate and
the printing of memoranda relating thereto, for any fees charged by
investment rating agencies for the rating of the Capital Securities
and the Notes, for any travel expenses of the Trust’s and the
Guarantor’s officers and employees and any other expenses of
the Trust and the Guarantor in connection with attending or hosting
meetings with prospective purchasers of Capital
Securities
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and for expenses incurred in
distributing any Preliminary Final Prospectus, the Free Writing
Prospectuses included in Schedule III hereto or the Final
Prospectus. The Guarantor will also pay all fees and expenses of
the Note Trustee, including the fees and disbursements of counsel
for the Note Trustee in connection with the Indenture and the
Notes; the fees and expenses of the Property Trustee and the
Delaware Trustee, including the fees and disbursements of counsel
for the Property Trustee and the Delaware Trustee in connection
with the Certificate of Trust filed with the Delaware Secretary of
State with respect to the Trust (the “Certificate of
Trust”) and the Trust Agreement; and the fees and expenses of
the Guarantee Trustee, including the fees and disbursements of
counsel for the Guarantee Trustee in connection with the Guarantee
and the Guarantee Agreement.
(l) The Trust and the
Guarantor will cooperate with the Representatives and use all
commercially reasonable efforts to permit the Capital Securities to
be eligible for clearance and settlement through DTC, the Euroclear
System and Clearstream Banking S.A., as applicable.
5. Conditions to the
Obligations of the Underwriters . The obligations of the
Underwriters to purchase the Capital Securities shall be subject to
the accuracy of the representations and warranties on the part of
the Trust and the Guarantor contained herein as of the date hereof,
as of the date of the effectiveness of any amendment to the
Registration Statement filed after the date hereof and prior to the
Closing Date (including the filing of any document incorporated by
reference therein) and as of the Closing Date, to the accuracy of
the statements of the Trust and the Guarantor made in any
certificates pursuant to the provisions hereof, to the performance
by the Trust and the Guarantor of their obligations hereunder and
to the following additional conditions:
(a) No stop order suspending
the effectiveness of the Registration Statement, as amended from
time to time, or any notice under Rule 401(g)(2) that would prevent
its use, shall have been issued and no proceedings for that purpose
shall have been instituted or threatened by the Commission; the
Final Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) not later than the close of business on the
second business day following the execution and delivery of this
Agreement; and the final term sheet contemplated by
Section 4(b) hereto, and any other material required to be
filed by the Trust or the Guarantor pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the
applicable time periods prescribed for such filings by Rule 433
under the Act.
(b) The Trust and the
Guarantor shall have furnished to the Representatives the opinion
of Jeannine E. Zahn, Senior Counsel of the Guarantor, or another
senior lawyer of the Guarantor satisfactory to the Representatives,
dated the Closing Date, to the effect that:
(i) the Guarantor has been
duly incorporated and is a validly existing corporation in good
standing under the laws of the State of
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Delaware, has the corporate
power and authority to own its properties and conduct its business
as described in the Disclosure Package or the Final Prospectus, and
is duly registered as a financial holding company and a bank
holding company under the Bank Holding Company Act of 1956, as
amended; 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, the
“Significant Subsidiaries”) is a duly organized and
validly existing corporation under the laws of the State of
Delaware;
(ii) each of the Guarantor
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 Guarantor and its
subsidiaries, taken as a whole;
(iii) 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. §55 in the case of Wells
Fargo Bank) nonassessable, and are owned directly or indirectly by
the Guarantor free and clear of any perfected security interest
and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances;
(iv) the number and type of
equity securities the Guarantor is authorized to issue is as set
forth in the Disclosure Package or the Final Prospectus;
(v) to such counsel’s
knowledge, there are no legal or governmental proceedings pending
or threatened which are required to be disclosed in the Disclosure
Package or Final Prospectus, other than as disclosed therein, and
there is no contract or other document of a character required to
be described or referred to in the Registration Statement or
required to be filed as an exhibit thereto other than those
described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the description thereof or
references thereto are correct;
(vi) neither the issue and
sale of the Capi
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