EXHIBIT 1.1
Xxxxx Fargo Capital VIII
5.625% Trust Preferred Securities
(liquidation amount $25 per Capital Security)
guaranteed to the extent set forth in the Guarantee Agreement by
Xxxxx Fargo & Company
Underwriting Agreement
July 21, 2003
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
Xxxxx Fargo Capital VIII, 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"), 8,000,000 of its 5.625% Trust
Preferred Securities, liquidation amount $25 per Preferred Security, plus the
number of Option Securities, if any, that the Underwriters elect to purchase
pursuant to Section 2(b) (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 July 28, 2003
(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 July 28, 2003 between the Trust and the Guarantor (the "Debenture Purchase
Agreement"), to purchase from the Guarantor $206,185,575 aggregate principal
amount of its 5.625% Junior Subordinated Debentures due August 1, 2033 (the
"Debentures") (or $237,113,425 aggregate principal amount of Debentures if the
Option granted to the Underwriters pursuant to Section 2(b) is exercised in
full) 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 February 7,
2002 executed by Wells 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(oo) to the
Registration Statement (as defined below). 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.
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(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 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 a letter dated the
Closing Date the ("Blood Letter") delivered by the Representatives to the
Company).
2. Purchase and Sale.
(a) Initial Securities. 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 (the "Initial
Securities"), at a purchase price of $25 (the "Purchase Price") per Capital
Security, plus any accumulated distributions thereon.
(b) Option Securities. In addition, subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Trust hereby grants an option (the "Option") to the Underwriters, severally and
not jointly, to purchase up to an additional 1,200,000 Capital Securities (the
"Option Securities") at the Purchase Price per Capital Security, plus any
accumulated distributions thereon. The Option may be exercised in whole or in
part only for the purpose of covering overallotments which may be made in
connection with the offering and distribution of the Initial Securities upon
notice to the Company delivered no later than 2:00 p.m., New York time, on
Friday July 25, 2003 by the Representatives to the Trust setting forth the
number of Option Securities as to which the several Underwriters are then
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exercising the option. If the option is exercised as to all or any portion of
the Option Securities, each of the Underwriters, acting severally and not
jointly, will purchase that proportion of the aggregate principal amount of
Option Securities then being purchased which the principal amount of Initial
Securities set forth in Schedule II opposite the name of such Underwriter bears
to the aggregate principal amount of Initial Securities.
(c) 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 an aggregate of $6,300,000 if the
Underwriters do not exercise the Option to purchase Option Shares, and an
aggregate of $7,245,000 if the Option is exercised by the Underwriters in full.
3. Delivery and Payment. Delivery of and payment for the Initial
Securities and any Option Securities the Underwriters elect to purchase pursuant
to Section 2(b) 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 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
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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 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
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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 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
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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,
the Euroclear System and Clearstream Banking S.A., as applicable.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Capital Securities shall be subject to the
accuracy of the representations and warranties on the part of the Trust and the
Guarantor contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed after the
date hereof and prior to the Closing Date (including the filing of any document
incorporated by reference therein) and as of the Closing Date, to the accuracy
of the statements of the Trust and the Guarantor made in any certificates
pursuant to the provisions hereof, to the performance by the Trust and the
Guarantor of their obligations hereunder and to the following additional
conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, 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 Xxxx X. Xxxxxxxxx, Senior Counsel of the
Guarantor, or another senior lawyer of the Guarantor satisfactory to the
Representatives, dated the Closing Date, to the effect that:
(i) the Guarantor has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
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")
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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. Section
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;
(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
8
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, it being
understood and agreed that the only such information furnished by any
Underwriter consists of such information described as such in the
Blood Letter) 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
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 enforceable against the Guarantor in accordance with
their terms and 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
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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 the Blood Letter) 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) 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 the Blood Letter)
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
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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 the Blood Letter)
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 or NASD
regulations 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.
(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
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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 & Xxxxxx, 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 Statutory 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
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
12
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 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 it requests for the
purpose of enabling it 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
13
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.
(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.
14
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 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 the Blood Letter); 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
15
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 was not so delivered within the time required by the
Act and the rules thereunder 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 (it being understood and agreed that
the only such information furnished by any Underwriter consists of such
information described as such in the Blood Letter). 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 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
16
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 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
17
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 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
18
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 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
19
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 addresses specified in Schedule I hereto, or if sent to
the Trust, at Xxxxx Fargo Center, MAC: N9305-000, Xxxxx Xxxxxx xxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000 or to the Guarantor, at 000 Xxxxxx Xxxxxx,
MAC: 0195-000, 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.
20
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 VIII
By XXXXX FARGO & COMPANY, as Depositor
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
XXXXX FARGO & COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I hereto.
CITIGROUP GLOBAL MARKETS INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
UBS SECURITIES LLC
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Director
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
UBS SECURITIES LLC
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director - Fixed Income
Syndicate
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Executive Director - Fixed
Income Syndicate
SCHEDULE I
Underwriting Agreement dated July 21, 2003 (the "Agreement")
Registration Statement No. 333-103711
Representatives, including address:
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
UBS Securities LLC
000 Xxxxxxxxxx Xxxx.
Stamford, Connecticut 06901
Fax: (000) 000-0000
Title, Purchase Price and Description of Capital Securities:
Title: 5.625% Trust Preferred Securities
Number: 8,000,000 (9,200,000 if the Option is exercised in full)
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: 5.625% per Capital Security
Distribution Dates: February 1, May 1, August 1, and November 1,
beginning on November 1, 2003
Liquidation Amount: $25 per Capital Security
Denominations: Beneficial interests in the Capital Securities will be
held in denominations of $25 and integral multiples thereof
I-1
Sinking fund provisions: None
Maturity Date: August 1, 2033
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
Closing Date, Time and Location: July 28, 2003, 9:00 a.m., New York City time,
at the offices of Faegre & Xxxxxx LLP, 0000 Xxxxx Xxxxx Xxxxxx, 00 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
I-2
SCHEDULE II
Number of
Capital
Securities
to be
Underwriter Purchased
----------- ----------
Citigroup Global Markets Inc. ..................................... 1,245,000
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated................. 1,240,000
UBS Securities LLC. ............................................... 1,240,000
Xxxxxx Xxxxxxx & Co. Incorporated.................................. 1,240,000
Xxxxx Fargo Securities, LLC........................................ 1,240,000
Banc One Capital Markets, Inc. .................................... 160,000
Bear, Xxxxxxx & Co. Inc. .......................................... 160,000
Credit Suisse First Boston LLC..................................... 160,000
Xxxxxxx, Xxxxx & Co. .............................................. 160,000
X. X. Xxxxxxx & Sons, Inc. ........................................ 45,000
Xxxxxxx Xxxxxx & Co., Inc. ........................................ 45,000
Deutsche Bank Securities Inc. ..................................... 45,000
Xxxxxxxxxx & Co. Inc. ............................................. 45,000
H&R Block Financial Advisors, Inc. ................................ 45,000
HSBC Securities (USA) Inc. ........................................ 45,000
X.X. Xxxxxx Securities Inc. ....................................... 45,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated............................... 45,000
Xxxxxx Brothers Inc. .............................................. 45,000
McDonald Investments Inc. ......................................... 45,000
II-1
Xxxxx & Xxxxxx, Inc. .............................................. 45,000
Xxxxxxx Xxxxx & Associates, Inc. .................................. 45,000
RBC Xxxx Xxxxxxxx Inc. ............................................ 45,000
TD Waterhouse Capital Markets, Inc. ............................... 45,000
U.S. Bancorp Xxxxx Xxxxxxx Inc. ................................... 45,000
Advest, Inc. ...................................................... 20,000
BB&T Investment Services, Inc. .................................... 20,000
Xxxxxxxx & Partners, L.P........................................... 20,000
X. X. Xxxx & Associates, Inc. ..................................... 20,000
Xxxxxxx, Xxxxxx & Co. ............................................. 20,000
X.X. Xxxxxxxx & Co. ............................................... 20,000
Xxxxxxxxx & Company LLC............................................ 20,000
Xxxxx Securities, Inc. ............................................ 20,000
Xxxxxx, Xxxxx Xxxxx Incorporated................................... 20,000
Xxxxxx & Company................................................... 20,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. ................................. 20,000
Xxxxxx Xxxxxxxxxx Xxxxx LLC........................................ 20,000
XxXxxx, Xxxxx & Co., Inc. ......................................... 20,000
Mesirow Financial, Inc. ........................................... 20,000
Xxxxxx Xxxxxx & Company, Inc. ..................................... 20,000
NatCity Investments, Inc. ......................................... 20,000
Pershing LLC....................................................... 20,000
Xxxxxx X. Xxxxx & Co. Incorporated................................. 20,000
Xxxx, Xxxx & Co., Inc. ............................................ 20,000
Xxxxxxx X'Xxxxx & Partners, L.P.................................... 20,000
II-2
Southwest Securities, Inc. ........................................ 20,000
Xxxxxx, Xxxxxxxx & Company, Incorporated........................... 20,000
SunTrust Capital Markets, Inc. .................................... 20,000
Wedbush Xxxxxx Securities Inc. .................................... 20,000
Total......................................................... 8,000,000
II-3
