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Exhibit 1.1
Wells Fargo Capital
XIII
7.70% Fixed-to-Floating
Rate Normal Preferred Purchase Securities
(liquidation amount $1,000
per security)
guaranteed to the extent
set forth in the Guarantee Agreement by
Wells Fargo &
Company
Underwriting
Agreement
May 12, 2008
To the Representative
named in Schedule
I hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Wells Fargo Capital XIII, 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 Representative (the
“Representative”), $2,500,000,000 of its 7.70%
Fixed-to-Floating Rate Normal Preferred Purchase Securities,
liquidation amount $1,000 per security (the “Normal
PPS”). 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
“Representative”, as used herein, shall each be deemed
to refer to such firm or firms.
The Normal PPS 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 May 19, 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 Normal PPS and the sale of the Trust Common Securities (as
defined below) pursuant to the Note Purchase Agreement to be dated
as of May 19, 2008 between the Trust and the Guarantor (the
“Note Purchase Agreement”), to purchase from the
Guarantor $2,500,100,000 aggregate principal amount of its
Remarketable 7.50% Junior Subordinated Notes due 2044 (the
“Notes”) to be issued 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, the Third Supplemental Indenture dated as of
March 12, 2008 and the Fourth Supplemental Indenture to be
dated as of May 19, 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 will
contemporaneously enter into (i) a Stock Purchase Contract
Agreement (the “Stock Purchase Contract Agreement”)
with the Guarantor, pursuant to which the Trust will agree to
purchase 25,001 Stock Purchase Contracts (each a “Stock
Purchase Contract”), each having a stated amount of $100,000
and obligating the Trust to purchase from the Guarantor, and the
Guarantor to sell to the Trust, subject to the terms thereof, one
share of the Guarantor’s Non-Cumulative Perpetual Preferred
Stock, Series A, $100,000 liquidation preference per share (the
“Preferred Stock”), on the Stock Purchase Date provided
for (and as defined) in the Stock Purchase Contract Agreement, and
(ii) a Collateral Agreement (the “Collateral
Agreement”) with Wilmington Trust Company, as collateral
agent (the “ Collateral Agent “), registrar and
transfer agent (the “Transfer Agent”) and custodial
agent (the “Custodial Agent”), under which the Trust
will initially pledge the Notes to secure its obligation to
purchase Preferred Stock under the Stock Purchase
Contracts.
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 May 19, 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 Normal PPS and the related
securities (including the Capital PPS, the Stripped PPS, the Notes,
the Guarantee, the Stock Purchase Contracts and the Preferred Stock
(collectively, the “Related Securities”)). 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 Normal PPS and the Related Securities 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
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supplement relating to the
Normal PPS and the Related Securities 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 Normal PPS and the Related Securities 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 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
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to the Trust or the Guarantor
by or on behalf of any Underwriter through the Representative
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 Representative 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 any Underwriter through
the Representative 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 Normal
PPS and the Related Securities 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 Normal PPS and the
Related Securities 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 Normal
PPS and the Related Securities, 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
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information furnished to the
Trust or the Guarantor by any Underwriter through the
Representative 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) The provisions of the
Collateral Agreement are effective to create in favor of the
Collateral Agent for the benefit of the Guarantor a valid security
interest under the Uniform Commercial Code as in effect in the
State of New York on the date hereof (the “UCC”) in all
“security entitlements” (as defined in
Section 8-102(a)(17) of the UCC and the Federal Book-Entry
Regulations) with respect to those Notes (other than the Notes
excluded from the definition of “Collateral” in the
Collateral Agreement) or treasury securities included in the
collateral account established pursuant to the Collateral Agreement
(the “Pledged Securities Entitlements”); and the
provisions of the Collateral Agreement are effective under the UCC
and the Federal Book-Entry Regulations to perfect the security
interest of the Collateral Agent for the benefit of the Guarantor
in the Pledged Security Entitlements.
(h) 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.
(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 Normal PPS
and the Related Securities or the offering that does not reflect
the final terms.
(v) “Capital PPS”
shall have the meaning given such term in the Final
Prospectus.
(vi) “Stripped
PPS” shall have the meaning given such term in the Final
Prospectus.
(vii) “ Federal
Book-Entry Regulations “ shall mean (a) the federal
regulations contained in Subpart B (“Treasury/Reserve
Automated Debt Entry System (TRADES) “ governing Book-Entry
Securities consisting of U.S.
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Treasury bonds, notes and
bills) and Subpart D (“ Additional Provisions “) of 31
C.F.R. Part 357, 31 C.F.R. Section 357.10 through
Section 357.14 and Section 357.41 through
Section 357.44 (including related defined terms in 31 C.F.R.
Section 357.2); and (b) to the extent substantially
identical to the federal regulations referred to in clause
(a) above (as in effect from time to time), the federal
regulations governing other Book-Entry Securities.
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 Normal PPS set forth opposite
such Underwriter’s name in Schedule II hereto at a
purchase price of $1,000 (the “Purchase Price”) per
Normal PPS, plus any accumulated distributions thereon.
(b) In consideration of such
purchases on the Closing Date, 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 $12.50 per Normal PPS, or an aggregate of
$31,250,000.
3. Delivery and
Payment . Delivery of and payment for the Normal PPS 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 Representative, the Trust and the Guarantor or
as provided in Section 8 hereof (such date and time of
delivery and payment for the Normal PPS being herein called the
“Closing Date”). Delivery of the Normal PPS shall be
made to the Representative for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representative of the purchase price thereof in the
manner set forth in Schedule I hereto. The Trust will deliver
against payment of the purchase price the Normal PPS in the form of
one or more permanent global securities in definitive form
deposited with or on behalf of Wilmington Trust Company, 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 Normal PPS 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 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 Representative’s consent
to, nor the
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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 Representative
(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 Normal PPS
and the Related Securities 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 Normal PPS 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
Representative 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 Normal PPS and the Related Securities 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 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 Representative’s
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.
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(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 Representative 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 Representative 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 Normal PPS and
the Related Securities for sale under the laws of such
jurisdictions as the Representative may designate and will maintain
such qualifications in effect so long as required to complete the
distribution of the Normal PPS; 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 the
Trust will, without the prior written consent of the
Representative, offer, sell, contract to sell or otherwise dispose
of, directly or indirectly, any Normal PPS (except for (x) the
Normal PPS offered pursuant to the Final Prospectus and
(y) any securities to be offered in an exchange offer or
similar transaction in respect of securities outstanding on the
date hereof, in each case including any guarantee of such
securities), any other beneficial interests in the assets of the
Trust (other than the Common Securities), any similar security
issued by another trust or other limited purpose vehicle, or any of
the Guarantor’s preferred stock, as the case may be, that in
the reasonable judgment of the Representative are substantially
similar to the Normal PPS or any of the Capital PPS, the Stripped
PPS, the Notes, the Guarantee, the Stock Purchase Contracts or the
Preferred Stock (including any guarantee of such securities), or
any securities that are convertible into or exchangeable for or
that represent the right to receive preferred securities or any
such substantially similar securities of either the Trust, a
similar trust or the Guarantor, except with the prior written
consent of the Representative.
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(i) The Trust and the
Guarantor agree to use all commercially reasonable efforts to
obtain and maintain the listing of the Normal PPS on the New York
Stock Exchange until such time as none of the Normal PPS are
outstanding. If the Normal PPS 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 Normal PPS on
a stock exchange agreed upon by the Trust, the Guarantor and the
Representative. 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 Normal PPS 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 Normal PPS. In the event the Notes are
distributed to the holders of the Normal PPS, 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 Normal PPS 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 Representative, 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 Normal PPS and the Related
Securities 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 Representative 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 Normal PPS and the Related
Securities for sale and determination of their eligibility for
investment under the laws of such jurisdictions as the
Representative may designate and the printing of
memoranda
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relating thereto, for any
fees charged by investment rating agencies for the rating of the
Normal PPS 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
Normal PPS 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; 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; and the fees and expenses of the Collateral Trustee,
including the fees and disbursements of counsel for the Collateral
Trustee in connection with the Collateral Agreement.
(l) The Trust and the
Guarantor will cooperate with the Representative and use all
commercially reasonable efforts to permit the Normal PPS 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 Normal PPS 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.
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(b) The Trust and the
Guarantor shall have furnished to the Representative the opinion of
Jeannine E. Zahn, Senior Counsel of the Guarantor, or another
senior lawyer of the Guarantor satisfactory to the Representative,
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 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;
11
(vi) neither the issue and
sale of the Normal PPS and the Related Securities, nor the
consummation of any other of the transactions herein contemplated
nor the fulfillment of the terms hereof or the Indenture, the
Related Securities, the Trust Agreement, the Guarantee Agreement,
the Stock Purchase Contract Agreement, the Collateral Agreement or
the Remarketing Agreement (as defined in the Final Prospectus) will
result in a breach of, or constitute a default under, any indenture
or other agreement or instrument to which the Guarantor or any
Significant Subsidiary is a party or bound and which constitutes a
material contract and is set forth as an exhibit to the
Guarantor’s most recent Annual Report on Form 10-K or
any subsequent Quarterly Reports on Form 10-Q or Current
Reports on Form 8-K, or any other indenture or material
agreement or instrument known to such counsel and to which the
Guarantor or any Significant Subsidiary is a party or bound, the
breach of which would have a material adverse effect on the
financial condition of the Guarant
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