EXHIBIT 1.1
XXXXX FARGO CAPITAL VI
6.95% CAPITAL SECURITIES
(LIQUIDATION AMOUNT $25 PER CAPITAL SECURITY)
GUARANTEED TO THE EXTENT SET FORTH IN THE GUARANTEE AGREEMENT BY
XXXXX FARGO & COMPANY
UNDERWRITING AGREEMENT
March 20, 2002
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxx Fargo Capital VI, a statutory business 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"), 18,000,000 of its 6.95%
Capital Securities, liquidation amount $25 per Capital Security (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 Xxxxx
Fargo & Company, a Delaware corporation ("Xxxxx Fargo" or the "Guarantor"), to
the extent described in a Guarantee Agreement to be dated as of March 27, 2002
(the "Guarantee Agreement") between the Guarantor and Bank One 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 Debenture Purchase Agreement to be dated as
of March 27, 2002 between the Trust and the Guarantor (the "Debenture Purchase
Agreement"), to purchase from the Guarantor $463,917,550 aggregate principal
amount of its 6.95% Junior Subordinated Debentures due April 15, 2032 (the
"Debentures") to be issued under an Indenture dated as of August 29, 2001 (the
"Indenture") between the Guarantor and Bank One Trust Company, N.A., as trustee
(the "Debenture Trustee"). 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 August 7, 2001 executed by Xxxxx Fargo, as depositor, and by Xxxxxxx X.
Xxxxx and Xxxxxx X. Xxxxxxxx, as
administrative trustees of the Trust (the "Administrative Trustees") and by
Wilmington Trust Company, as Delaware trustee (the "Delaware Trustee"), as
hereafter amended in substantially the form of the Amended and Restated
Declaration of Trust and Trust Agreement (the "Trust Agreement") among Xxxxx
Fargo, the Administrative Trustees, the Delaware Trustee and the property
trustee named therein (the "Property Trustee") filed as exhibit 4(mm) to the
Registration Statement on Form S-3 (Registration No. 333-83566). 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") a registration statement on such Form (the file number of
which is set forth in Schedule I hereto), which has become effective,
for the registration under the Act of the Capital Securities, the
Guarantee and the Debentures. 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
Debentures in substantially the form heretofore delivered to you. Such
registration statement, including all exhibits thereto (but excluding
Form T-1), as amended at the date of this Agreement, is hereinafter
called the "Registration Statement"; such prospectus relating to the
Capital Securities, the Guarantee and the Debentures 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 heretofore been 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
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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 and
Qualification (Form T-1) under the Trust Indenture Act of the Debenture
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 furnished by
any Underwriter consists of such information described as such in
Schedule I hereto).
2. Purchase and Sale. 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 Capital Securities
set forth opposite such Underwriter's name in Schedule II hereto, at a purchase
price of $25 (the "Purchase Price") per Capital Security, plus any accumulated
distributions thereon.
In consideration of such purchases on the Closing Date, the proceeds of
which will be used to purchase the Debentures, the Guarantor shall pay to the
Underwriters as compensation, in immediately available funds, on the Closing
Date $0.7875 per Capital Security, or $14,175,000.
3. Delivery and Payment. Delivery of and payment for the Capital
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 Capital Securities being
herein called the "Closing Date"). Delivery of the Capital Securities 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. The Trust will deliver against payment of the purchase price
the Capital Securities in the form of one or more permanent global securities in
definitive form deposited with or on behalf of Xxxxx Fargo Bank Minnesota, N.A.
as custodian for The Depository Trust Company ("DTC") for credit to the
respective accounts of the Underwriters
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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 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 Debentures 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 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) If, at any time when a prospectus relating to the Capital
Securities, the Guarantee and the Debentures is required to be
delivered 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, 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
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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.
(c) 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.
(d) 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, as many copies of any Preliminary
Final Prospectus and the Final Prospectus 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.
(e) 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, 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.
(f) Until the business day following the Closing Date or such
earlier time as you may notify the Trust or the Guarantor, neither the
Trust nor the Guarantor will, without the consent of the
Representatives, offer or sell, or announce the offering of, any
securities (other than commercial paper) that are substantially similar
to the Capital Securities and are covered by the Registration Statement
or any other registration statement filed under the Act.
(g) 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 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
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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 that the
Debentures 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 Debentures 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 Debentures
are outstanding.
(h) 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 Debentures, for any applicable filing fee incident to, and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with, the review by the New York Stock Exchange of the
Capital Securities, 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 and for expenses incurred
in distributing any Preliminary Final Prospectus or the Final
Prospectus. The Guarantor will also pay all fees and expenses of the
Debenture Trustee, including the fees and disbursements of counsel for
the Debenture Trustee in connection with the Indenture and the
Debentures; 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.
(i) 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.
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
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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, shall have been
issued and no proceedings for that purpose shall have been instituted
or threatened by the Commission; and 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.
(b) The Trust and the Guarantor shall have furnished to the
Representatives the opinion of Xxxxxx X. Xxxxxxxx, Senior Vice
President and Assistant General Counsel of the Guarantor, 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 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; each of Xxxxx
Fargo Bank Minnesota, National Association ("Xxxxx Minnesota")
and Xxxxx Fargo Bank, National Association ("Xxxxx 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 Minnesota and Xxxxx 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. ss.55 in the case of Xxxxx Fargo Bank
and Wells Minnesota) 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 Final
Prospectus;
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(v) to such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which are
required to be disclosed in the 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 Capital
Securities and the Debentures, nor the consummation of any
other of the transactions herein contemplated nor the
fulfillment of the terms hereof or the Indenture, the
Debentures, the Trust Agreement or the Guarantee Agreement
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 Report 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 result in a material adverse effect
on the financial condition of the Guarantor and its
subsidiaries, taken as a whole, or violate any order or
regulation known to such counsel to be applicable to the
Guarantor or any Significant Subsidiary of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Guarantor or any
Significant Subsidiary; nor will such action result in any
violation of the provisions of the Restated Certificate of
Incorporation or By-Laws of the Guarantor;
(vii) the statements in the Final Prospectus (other
than statements furnished in writing to the Trust or the
Guarantor by or on behalf of an Underwriter through the
Representatives) under the captions "Description of Junior
Subordinated Debentures", "Description of Capital Securities",
"Description of Guarantee", "Relationship Among the Capital
Securities, the Junior Subordinated Debentures and the
Guarantee," "Underwriters", "Description of Junior
Subordinated Debt Securities", "Description of Trust Preferred
Securities", "Description of Guarantees", "Relationship Among
Trust Preferred Securities, Corresponding Junior Subordinated
Debt Securities and Guarantees," and "Plan of Distribution"
insofar as they purport to summarize certain provisions of
documents or laws specifically referred to therein, are
accurate summaries of such provisions or laws or of the
sources from which such summaries were derived;
(viii) the Indenture has been duly authorized,
executed and delivered by the Guarantor, has been duly
qualified under the Trust
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Indenture Act, as amended, and (assuming the Indenture has
been duly authorized, executed and delivered by the Debenture
Trustee) constitutes a valid and legally binding instrument
enforceable against the Guarantor in accordance with its terms
(subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time
in effect and subject to general equity principles and except
further as enforcement thereof may be limited by any
governmental authority that limits, delays or prohibits the
making of payments outside the United States); and the
Debentures have been duly authorized and executed by the
Guarantor and, when authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the Trust pursuant to the Debenture Purchase Agreement, the
Debentures will constitute valid and legally binding
obligations of the Guarantor entitled to the benefits of the
Indenture subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and subject to general equity principles and
except further as enforcement thereof may be limited by any
governmental authority that limits, delays or prohibits the
making of payments outside the United States;
(ix) the Guarantee Agreement has been duly
authorized, executed and delivered by the Guarantor, and
(assuming the Guarantee Agreement has been duly authorized,
executed and delivered by the Guarantee Trustee) constitutes a
valid and legally binding instrument enforceable against the
Guarantor in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and
subject to general equity principles and except further as
enforcement thereof may be limited by any governmental
authority that limits, delays or prohibits the making of
payments outside the United States); and the Trust Agreement
has been duly authorized, executed and delivered by the
Guarantor and each of the Administrative Trustees;
(x) the Registration Statement and any amendments
thereto have become effective under the Act; to the knowledge
of such counsel, no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Final Prospectus
and each amendment thereof or supplement thereto as of their
respective effective or issue dates (other than the financial
statements and other financial and statistical information
contained therein, other than statements furnished in writing
to the Guarantor or the Trust by or on behalf of an
Underwriter through the Representatives (it being understood
and agreed that the only such information furnished by any
Underwriter consists of such information described as such in
Schedule I hereto) and
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other than the Statements of Eligibility on Form T-1 included
or incorporated by reference therein, as to which such counsel
need express no opinion) complied as to form in all material
respects with the applicable requirements of the Act and the
Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that the Registration
Statement, or any amendment thereof, at the time it became
effective (other than the financial statements and other
financial and statistical information contained therein, other
than statements furnished in writing to the Guarantor or the
Trust by or on behalf of an Underwriter through the
Representatives (it being understood and agreed that the only
such information furnished by any Underwriter consists of such
information described as such in Schedule I hereto) and other
than the Statements of Eligibility on Form T-1 included or
incorporated by reference therein, as to which such counsel
need express no opinion), contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Final Prospectus, as
amended or supplemented (other than the financial statements
and other financial and statistical information contained
therein, other than statements furnished in writing to the
Guarantor or the Trust by or on behalf of an Underwriter
through the Representatives (it being understood and agreed
that the only such information furnished by any Underwriter
consists of such information described as such in Schedule I
hereto) and other than the Statements of Eligibility on Form
T-1 included or incorporated by reference therein, as to which
such counsel need express no opinion), includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(xi) this Agreement has been duly authorized,
executed and delivered by each of the Trust and the Guarantor;
and
(xii) no consent, approval, authorization or order of
any court or government agency or body is required for the
consummation of the transactions contemplated herein or in the
Indenture, the Debentures, the Trust Agreement or the
Guarantee Agreement, except such as have been obtained under
the Act and the Trust Indenture Act and such as may be
required under the Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the Capital
Securities by the Underwriters.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Minnesota and the Delaware General Corporation Law or
the United States, to the extent deemed proper and specified in such
opinion, upon the opinion of counsel who are satisfactory to counsel
for the Underwriters; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of the Trust and
the Guarantor and its subsidiaries and public officials.
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(c) The Representatives shall have received the opinion of
counsel to Bank One Trust Company, N.A., as Property Trustee under the
Trust Agreement, Debenture Trustee under the Indenture, and Guarantee
Trustee under the Guarantee Agreement, dated the Closing Date, to the
effect that:
(i) Bank One Trust Company, N.A. is duly incorporated
and is validly existing in good standing as a banking
corporation under the law of the State of Delaware.
(ii) Bank One Trust Company, N.A. has the power and
authority to execute, deliver and perform its obligations
under the Trust Agreement, the Indenture and the Guarantee
Agreement.
(iii) Each of the Trust Agreement, the Indenture and
the Guarantee Agreement has been duly authorized, executed and
delivered by Bank One Trust Company, N.A. and constitutes a
legal, valid and binding obligation of Bank One Trust Company,
N.A., enforceable against Bank One Trust Company, N.A. in
accordance with its terms.
(iv) The execution, delivery and performance by Bank
One Trust Company, N.A. of the Trust Agreement, the Indenture
and the Guarantee Agreement do not conflict with or constitute
a breach of the charter or by-laws of Bank One Trust Company,
N.A.
(v) No consent, approval or authorization of, or
registration with or notice to, any governmental authority or
agency of the State of Delaware or the United States of
America governing the banking or trust powers of Bank One
Trust Company, N.A. is required for the execution, delivery or
performance by Bank One Trust Company, N.A. of the Trust
Agreement, the Indenture and the Guarantee Agreement.
(d) The Representatives shall have received the opinion of
Xxxxxxxx, Xxxxxx & Finger, as special Delaware counsel to the Trust and
the Guarantor, dated the Closing Date, to the effect that:
(i) The Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act (the "Delaware Act"), and all
filings required as of the date hereof under the Delaware Act
with respect to the creation and valid existence of the Trust
as a business trust have been made.
(ii) Under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority to own property
and to conduct its business, all as described in the Final
Prospectus.
(iii) The Trust Agreement constitutes a valid and
legally binding instrument enforceable against the Guarantor
and each of the Administrative Trustees in accordance with its
terms (subject, as to
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enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and
subject to general equity principles and except further as
enforcement thereof may be limited by any governmental
authority that limits, delays or prohibits the making of
payments outside the United States).
(iv) Under the Trust Agreement and the Delaware Act,
the Trust has the trust power and authority (i) to execute and
deliver, and to perform its obligations under, this Agreement,
and (ii) to issue, and to perform its obligations under, the
Capital Securities and the Trust Common Securities.
(v) Under the Trust Agreement and the Delaware Act,
the execution and delivery by the Trust of this Agreement, and
the performance by the Trust of its obligations under this
Agreement, have been duly authorized by all necessary trust
action on the part of the Trust.
(vi) Under the Delaware Act, the certificate attached
to the Trust Agreement as Exhibit C is an appropriate form of
certificate to evidence ownership of the Capital Securities.
The Capital Securities have been duly authorized by the Trust
Agreement and, when issued and delivered in accordance with
this Agreement, will be duly and validly issued, and, subject
to the qualifications hereinafter expressed in this paragraph
(vi), fully paid and non-assessable undivided beneficial
interests in the assets of the Trust and are entitled to the
benefits of the Trust Agreement. The Trust Common Securities
have been duly authorized by the Trust Agreement and are duly
and validly issued undivided beneficial interests in the
assets of the Trust and are entitled to the benefits of the
Trust Agreement. The holders of the Capital Securities, as
beneficial owners of the Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware. Such counsel may
note that the respective holders of the Capital Securities may
be obligated, pursuant to the Trust Agreement, to make certain
payments under the Trust Agreement.
(vii) Under the Trust Agreement and the Delaware Act,
the issuance of the Capital Securities and the Trust Common
Securities is not subject to preemptive or similar rights.
(viii) The issuance and sale by the Trust of the
Capital Securities and the Trust Common Securities, the
purchase by the Trust of the Debentures, the execution,
delivery and performance by the Trust of this Agreement, the
consummation by the Trust of the transactions contemplated by
this Agreement and compliance by the Trust with its
obligations under this Agreement do not violate (a) any of the
provisions
12
of the Certificate of Trust or the Trust Agreement, (b) any
applicable Delaware law or Delaware administrative regulation.
(e) The Representatives shall have received from their counsel
such opinion or opinions, dated the Closing Date, with respect to the
Capital Securities, the Debentures, the Guarantee Agreement, the
Indenture, the Registration Statement, the Final Prospectus and other
related matters as the Representatives may reasonably require, and the
Trust and the Guarantor shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
(f) Each of the Trust and the Guarantor shall have furnished
to the Representatives a certificate, signed, with respect to the
Trust, by an Administrative Trustee of the Trust and, with respect to
the Guarantor, any Senior Vice President or Executive Vice President
and the principal financial or accounting officer of the Guarantor,
dated the Closing Date, to the effect that:
(i) with respect to the certificate delivered by the
Trust, the representations and warranties of the Trust in
Section 1 hereof are true and correct on and as of the Closing
Date with the same effect as if made on the Closing Date, and
the Trust has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date and, with respect to the
certificate delivered by the Guarantor, the representations
and warranties of the Guarantor in Section 1 hereof are true
and correct as of the Closing Date with the same effect as if
made on the Closing Date, and the Guarantor has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) with respect to each certificate, no stop order
suspending the effectiveness of the Registration Statement, as
amended, has been issued and no proceedings for that purpose
have been instituted or threatened; and
(iii) with respect to the certificate delivered by
the Guarantor, since the date of the most recent financial
statements included in the Final Prospectus, there has been no
material adverse change in the condition, financial or
otherwise, earnings, business, properties or business
prospects of the Trust and the Guarantor and the Guarantor's
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Prospectus.
(g) At the Closing Date, KPMG LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated the
Closing Date, in substantially the form attached hereto as Exhibit A.
13
(h) As of the Closing Date, there shall not have occurred
since the date hereof any change in the condition, financial or
otherwise, or in the earnings, business, properties, results of
operations or business prospects of the Trust, the Guarantor and the
Guarantor's subsidiaries, taken as a whole, from that set forth in the
Final Prospectus, as amended or supplemented as of the date hereof,
that, in the judgment of the Representatives, is material and adverse
and that makes it, in the judgment of the Representatives,
impracticable to market the Capital Securities on the terms and in the
manner contemplated by the Final Prospectus, as so amended or
supplemented.
(i) As of the Closing Date, the Capital Securities shall have
been approved for listing on the New York Stock Exchange or on such
other stock exchange agreed upon by the Trust, the Guarantor and the
Representatives, unless the failure to obtain such approval is a result
of the Underwriters' failure to provide any materials requested by such
exchange.
If (i) any of the conditions specified in this Section 5 shall
not have been fulfilled when and as provided in this Agreement, or (ii)
any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be reasonably satisfactory in form and
substance to the Representatives and their counsel, this Agreement and
all obligations of the Underwriters hereunder may be cancelled on, or
at any time prior to, the Closing Date by the Representatives. Notice
of such cancellation shall be given to the Trust and the Guarantor in
writing or by telephone or facsimile confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Capital
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Trust and the Guarantor to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Guarantor will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including,
without limitation, reasonable fees and disbursements of counsel and those
described in Section 4(h) hereof) that shall have been incurred by them in
connection with the proposed purchase and sale of the Capital Securities.
7. Indemnification and Contribution.
(a) The Trust and the Guarantor jointly and severally agree to
indemnify and hold harmless each Underwriter and each person who
controls any Underwriter within the meaning of either Section 15 of the
Act or Section 20 of the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement for the
registration of the Capital Securities, the Guarantee and the
Debentures as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment
14
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein 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, liability or action; provided,
however, that (i) the Trust and the Guarantor 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 upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Trust or the Guarantor by or on behalf of any Underwriter through
the Representatives specifically for use therein (it being understood
and agreed that the only such information furnished by any Underwriter
consists of such information described as such in Schedule I hereto);
and (ii) with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from the Basic Prospectus
or any Preliminary Final Prospectus, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any
Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such losses, claims, damages or liabilities
purchased the Capital Securities concerned, to the extent that the
Final Prospectus relating to such Capital Securities was required to be
delivered by such Underwriter under the Act in connection with such
purchase and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus
was corrected in the Final Prospectus as amended or supplemented if the
Trust or the Guarantor had previously furnished copies of the Final
Prospectus as amended or supplemented (exclusive of material
incorporated by reference) to such Underwriter. This indemnity
agreement will be in addition to any liability which the Trust or the
Guarantor may otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to
indemnify and hold harmless the Trust, the Administrative Trustees, the
Guarantor, each of their directors, each of the Guarantor's officers
and the Trust's representative who signs the Registration Statement,
and each person who controls the Trust or the Guarantor within the
meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Trust and
the Guarantor to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Trust or the
Guarantor by or on behalf of such Underwriter through the
Representatives for use in the preparation of the documents referred to
in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action (including any
governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the
15
indemnifying party will not relieve it from any liability which it may
have to any indemnified party otherwise than under this Section 7. In
case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the
extent that it shall wish, jointly, with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party). In any such proceeding, any indemnified party
shall have the right to obtain 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 indemnified party and the indemnifying party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of 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 separate identified
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 Representatives that are indemnified parties in the case
of parties to be indemnified pursuant to paragraph (a) of this Section
7 and by the Guarantor in the case of parties to be indemnified
pursuant to paragraph (b) of this Section 7. 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 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.
(d) To the extent the indemnification provided for in Section
7(a) or 7(b) hereof is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received
by the Trust and the Guarantor, on the one hand, and each Underwriter,
on the other hand, from the offering of such Capital Securities or (ii)
if the allocation provided by
16
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 Trust and the
Guarantor, on the one hand, and each Underwriter, on the other hand, in
connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Trust
and the Guarantor, on the one hand, and each Underwriter, on the other
hand, in connection with the offering of such Capital Securities shall
be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Capital Securities (before deducting
expenses) received by the Trust bear to the total discounts and
commissions received by each Underwriter in respect thereof. The
relative fault of the Trust and the Guarantor, on the one hand, and
each Underwriter, 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 Trust and the
Guarantor or by such Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Underwriter's obligation to contribute
pursuant to this Section 7 shall be several in the proportion that the
number of Capital Securities the sale of which by such Underwriter gave
rise to such losses, claims, damages or liabilities bears to the
aggregate number of Capital Securities the sale of which by all
Underwriters gave rise to such losses, claims, damages or liabilities,
and not joint.
(e) The Trust and the Guarantor and the Underwriters agree
that it would not be just or equitable if contribution pursuant to
Section 7(d) hereof were determined by pro rata allocation (even if the
Underwriters 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 7(d) hereof. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 7(d) 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 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Capital Securities referred to in Section
7(d) hereof that were offered and sold to the public through such
Underwriter exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Capital Securities agreed to be
purchased by such Underwriter or Underwriters hereunder, the remaining
Underwriters shall be obligated severally to take up and
17
pay for (in the respective proportions which the number of Capital Securities
set forth opposite their names in Schedule II hereto bear to the aggregate
number of Capital Securities set forth opposite the names of all the remaining
Underwriters) the Capital Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate number of Capital Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
number of Capital Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of such Capital Securities; provided further, that
if the remaining Underwriters do not exercise their right to purchase such
Capital Securities and arrangements for the purchase of such Capital Securities
satisfactory to the Trust and the Guarantor and the Representatives are not made
within 36 hours after such default, then this Agreement will terminate without
liability to any nondefaulting Underwriter, the Trust and the Guarantor. In the
event of a default by any Underwriter as set forth in this Section 8, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Trust or the
Guarantor and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Underwriter Representations and Agreements. In the event that the
offer or sale of the Capital Securities by an Underwriter in a jurisdiction
requires any action on the part of the Trust or the Guarantor in or with respect
to such jurisdiction, such Underwriter represents and agrees that it will (i)
inform the Trust or the Guarantor that the Trust or the Guarantor is required to
take such action prior to the time such action is required to be taken, and (ii)
cooperate with and assist the Trust or the Guarantor in complying with such
requirements. Each Underwriter severally agrees that it will, to the best of its
knowledge and belief, comply with all applicable securities laws and regulations
in force in any jurisdiction in which it purchases, offers, sells or delivers
the Capital Securities or possesses or distributes any Preliminary Final
Prospectus or the Final Prospectus, and will obtain any required consent,
approval or permission for its purchase, offer, sale or delivery of the Capital
Securities under the laws and regulations in force in any jurisdiction to which
it is subject or in which it makes any such purchases, offers, sales or
deliveries. Each Underwriter severally agrees that it will provide any materials
requested by the New York Stock Exchange or such other stock exchange upon which
the Capital Securities, or, if applicable, the Debentures, are listed. Each
Underwriter also severally agrees that it will timely file with the Corporate
Financing Department of the National Association of Securities Dealers, Inc.
(the "Association") any documents required to be filed under Rules 2710 and 2720
of the Association's Conduct Rules relating to the offering of the Capital
Securities.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Trust and the
Guarantor prior to delivery of and payment for the Capital Securities, if prior
to such time there shall have occurred any (i) suspension or material limitation
of trading generally on the New York Stock Exchange or a material disruption in
settlement services in the United States, (ii) suspension of trading of any
securities of the Guarantor 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
18
Guarantor 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 consequences, its rating of any debt securities of the
Guarantor 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 including, without limitation, an act of terrorism
that, in the judgment of the Representatives, 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
the Representatives, impracticable to proceed with completion of the public
offering of, or sale of and payment for, the Capital Securities.
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Trust, the Guarantor or their officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter, the Trust or the
Guarantor or any of the officers, directors or controlling persons referred to
in Section 7 hereof, and will survive delivery of and payment for the Capital
Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
12. 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 facsimile, telex, telecopier, or telegram and confirmed to
the recipient, and any such notice shall be effective when received if sent to
the Representatives, at the address specified in Schedule I hereto, or if sent
to the Trust, at Xxxxx Fargo Center, MAC: X0000-000, Xxxxx Xxxxxx and Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 or to the Guarantor, at 000 Xxxxxx Xxxxxx,
XXX: 0195-171, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
15. Business Day. As used herein, the term "business day" shall mean
any day when the Commission's office in Washington, D.C. is normally open for
business.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Trust, the Guarantor and the several Underwriters.
Very truly yours,
XXXXX FARGO CAPITAL VI
By XXXXX FARGO & COMPANY, as Depositor
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Assistant Treasurer
XXXXX FARGO & COMPANY
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
The foregoing Agreement is hereby confirmed
and accepted as of the date specified in
Schedule I hereto.
XXXXXX XXXXXXX & CO. INCORPORATED
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
SCHEDULE I
Underwriting Agreement dated March 20, 2002 (the "Agreement")
Registration Statement No. 333-83566
Representatives, including addresses:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Financing Services Group
Fax: (000) 000-0000
Title, Purchase Price and Description of Capital Securities:
Title: 6.95% Capital Securities
Number: 18,000,000
Price to Public: $25
Purchase price (include type of funds, if other than Federal Funds, and
accrued interest or amortization if applicable): $25 payable in
immediately available funds
Commission: 3.15% ($0.7875 per Capital Security)
Distribution Rate: 6.95% per Capital Security
Distribution Dates: July 15, October 15, January 15, and April 15,
beginning on July 15, 2002
Liquidation Amount: $25 per capital security
Denominations: Beneficial interests in the Capital Securities will be
held in denominations of $25 and integral multiples thereof
Sinking fund provisions: None
Maturity Date: April 15, 2032, unless extended as specified in the
Final Prospectus
Redemption: As specified in the Final Prospectus
Provisions regarding repayment at the option of Holders: None
Deferral of Interest: As specified in the Final Prospectus
I-1
Closing Date, Time and Location: March 27, 2002, 9:00 a.m., New York
City time, at the offices of Faegre & Xxxxxx LLP, 2200 Xxxxx Fargo
Center, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
Information Supplied by Underwriters: For purposes of Sections 7(a) and
7(b) of the Agreement, the only information furnished to the Trust and
the Guarantor by any Underwriter for use in any Preliminary Final
Prospectus or the Final Prospectus consists of: (i) the names of the
Underwriters contained on the cover page and in the table under the
caption "Underwriters" therein, (ii) the concession and reallowance
figures contained in the third paragraph under the caption
"Underwriters" therein, (iii) the third sentence of the sixth paragraph
under the caption "Underwriters" therein, (iv) the eighth paragraph
under the caption "Underwriters" therein, and (v) the tenth paragraph
under the caption "Underwriters" therein (which information contained
in such paragraph was solely furnished by First Union Securities, Inc.)
and (vi) the twelfth paragraph under the caption "Underwriters"
therein.
I-2
SCHEDULE II
Underwriter Number of Capital
----------- Securities to be
Purchased
---------
Xxxxxx Xxxxxxx & Co. Incorporated.............................. 2,212,500
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated............. 2,212,500
X.X. Xxxxxxx & Sons, Inc....................................... 2,212,500
Prudential Securities Incorporated............................. 2,212,500
Xxxxxxx Xxxxx Xxxxxx Inc....................................... 2,212,500
Xxxxx Fargo Securities, LLC.................................... 2,212,500
Bear, Xxxxxxx & Co. Inc........................................ 450,000
Credit Suisse First Boston Corporation......................... 450,000
Deutsche Banc Alex. Xxxxx Inc.................................. 450,000
First Union Securities, Inc.................................... 450,000
Xxxxxxx, Sachs & Co............................................ 450,000
X.X. Xxxxxx Securities Inc..................................... 450,000
Xxxxxx Brothers Inc............................................ 450,000
ABN AMRO Incorporated.......................................... 75,000
Xxxxxx X. Xxxxx & Co. Incorporated............................. 75,000
Banc One Capital Markets, Inc.................................. 75,000
CIBC World Markets Corp........................................ 75,000
X.X. Xxxxxxxx & Co............................................. 75,000
Xxxx Xxxxxxxx Incorporated..................................... 75,000
First Albany Corporation....................................... 75,000
II-1
Fleet Securities, Inc. ........................................ 75,000
Xxxxxx & Company............................................... 75,000
H&R Block Financial Advisors, Inc.............................. 75,000
HSBC Securities (USA) Inc...................................... 75,000
Jannney Xxxxxxxxxx Xxxxx LLC................................... 75,000
Xxxx Xxxxx Xxxx Xxxxxx Incorporated............................ 75,000
Mellon Financial Markets, LLC.................................. 75,000
Mesirow Financial, Inc......................................... 75,000
Sandler X'Xxxxx & Partners, L.P................................ 75,000
Xxxxxxx Xxxxxx & Co., Inc...................................... 75,000
Xxxxxx Xxxxxxx & Co., Inc...................................... 75,000
U.S. Bancorp Xxxxx Xxxxxxx Inc................................. 75,000
Xxxxxxxx Capital Partners, L.P................................. 75,000
The Xxxxxxxx Capital Group, L.P................................ 75,000
----------
Total................................................. 18,000,000
II-2
