<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 3, 1996
REGISTRATION NO. 333-15253
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- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
<TABLE>
<S> <C> <C>
WELLS FARGO & COMPANY DELAWARE 13-2553920
WELLS FARGO CAPITAL I DELAWARE 94-6701193
WELLS FARGO CAPITAL II DELAWARE 94-6701194
WELLS FARGO CAPITAL III DELAWARE 94-6701195
(EXACT NAME OF REGISTRANT (STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
AS SPECIFIED IN ITS
CHARTER)
</TABLE>
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(415) 477-1000
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
ALAN J. PABST
SENIOR VICE PRESIDENT AND TREASURER
WELLS FARGO & COMPANY
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(415) 477-1000
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
----------------
COPIES TO:
DOUGLAS D. SMITH, ESQ. FRANK H. GOLAY, JR., ESQ.
BROBECK PHLEGER & HARRISON LLP SULLIVAN & CROMWELL
ONE MARKET PLAZA 444 S. FLOWER STREET, SUITE 1200
SAN FRANCISCO, CALIFORNIA 94105 LOS ANGELES, CALIFORNIA 90071
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act of 1933 registration statement
number of the earlier effective registration statement for the same offering.
[_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
Securities Act of 1933 registration statement number of the earlier effective
registration statement for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
----------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Registration Statement contains two forms of Prospectuses to be used in
connection with offerings of the following securities: (1) preferred
securities of Wells Fargo Capital I, II and III, severally, junior
subordinated debt securities of Wells Fargo & Company (the "Company") and
guarantees by the Company of preferred securities issued by Wells Fargo
Capital I, II and III and (2) debt securities (both senior and subordinated),
preferred stock, common stock and depositary shares of the Company. Each
offering of securities made under this Registration Statement will be made
pursuant to one of these two Prospectuses, with the specifications of the
securities offered thereby set forth in an accompanying Prospectus Supplement.
A form of Prospectus Supplement for the offering of the preferred securities
of Wells Fargo Capital I, the junior subordinated debt securities of the
Company and guarantees by the Company of preferred securities issued by Wells
Fargo Capital I, is also filed as part of this Registration Statement.
2
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ +
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS TO +
+WHICH IT RELATES SHALL CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN +
+OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN +
+WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO +
+REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. +
+ +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED DECEMBER 3, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED DECEMBER , 1996
20,000,000 PREFERRED SECURITIES
WELLS FARGO CAPITAL I
% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES,
SERIES A (QUIPS(SM))*
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
WELLS FARGO & COMPANY
----------
The % Cumulative Quarterly Income Preferred Securities, Series A (the
"Series A QUIPS"), offered hereby represent beneficial ownership interests in
Wells Fargo Capital I, a business trust created under the laws of the State of
Delaware (the "Series A Issuer"). Wells Fargo & Company, a Delaware corporation
(the "Company"), will be the owner of all the common securities (the "Series A
Common Securities" and, collectively with the Series A QUIPS, the "Series A
Securities") of the Series
---------- (Continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE S-5 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE SERIES A QUIPS.
THESE SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS OR OTHER OBLIGATIONS OF
A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO
WHICH IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
<TABLE>
<CAPTION>
PROCEEDS TO
INITIAL PUBLIC UNDERWRITING THE SERIES A
OFFERING PRICE(1) COMMISSION(2) ISSUER(3)(4)
----------------- ------------- ------------
<S> <C> <C> <C>
Per Series A QUIPS................. $25.00 (3) $
Total(5)........................... $500,000,000 (3) $
</TABLE>
- -----
(1) Plus accumulated Distributions, if any, from , 1996.
(2) The Series A Issuer and the Company have each agreed to indemnify the
several Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended. See "Underwriting."
(3) In view of the fact that the proceeds of the sale of the Series A QUIPS
will be invested in the Series A Subordinated Debentures, the Company has
agreed to pay to the Underwriters as compensation ("Underwriters'
Compensation") for their arranging the investment therein of such proceeds
$ . per Series A QUIPS (or $ in the aggregate). See
"Underwriting."
(4) Expenses of the offering, which are payable by the Company, are estimated
to be $ .
(5) The Series A Issuer has granted the Underwriters an option for 30 days to
purchase up to an additional 3,000,000 Series A QUIPS at the initial public
offering price per Series A QUIPS solely to cover over-allotments. The
Company will pay Underwriters' Compensation in the amount per Series A
QUIPS set forth in Note 3 with respect to such additional Series A QUIPS.
If such option is exercised in full, the total Initial Public Offering
Price, Underwriting Commission and Proceeds to the Series A Issuer will be
$ , $ and $ , respectively. See "Underwriting."
----------
The Series A QUIPS offered hereby are offered severally by the Underwriters,
as specified herein, subject to receipt and acceptance by them and subject to
their right to reject any order in whole or in part. It is expected that the
Series A QUIPS will be ready for delivery in book-entry form only through the
facilities of The Depository Trust Company in New York, New York, on or about
, 1996, against payment therefor in immediately available funds.
- -----
*QUIPS is a service mark of Goldman, Sachs & Co.
GOLDMAN, SACHS & CO.
----------
The date of this Prospectus Supplement is , 1996
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES A
QUIPS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
----------------
(Continued from previous page)
A Issuer. The First National Bank of Chicago is the Property Trustee of the
Series A Issuer. The Series A Issuer exists for the sole purpose of issuing
Series A QUIPS and Series A Common Securities and investing the proceeds
thereof in % Junior Subordinated Deferrable Interest Debentures, Series A
(the "Series A Subordinated Debentures"), to be issued by the Company. The
Series A Subordinated Debentures will mature on January 1, 2027, which date
may be (i) shortened to a date not earlier than January 1, 2002 or
(ii) extended to a date not later than January 1, 2046, in each case if
certain conditions are met (including, in the case of a shortening of the
Stated Maturity (as defined herein), the Company having received prior
approval of the Board of Governors of the Federal Reserve System (the "Federal
Reserve") to do so if then required under applicable capital guidelines or
policies. The Series A QUIPS will have a preference under certain
circumstances with respect to cash distributions and amounts payable on
liquidation, redemption or otherwise over the Series A Common Securities. See
"Description of Preferred Securities -- Subordination of Common Securities" in
the accompanying Prospectus. The Series A Common Securities, like the Series A
QUIPS, will have a Liquidation Amount of $25 per security, and the Company
will acquire Series A Common Securities in an aggregate Liquidation Amount
equal to 3% of the total capital of the Series A Issuer (rounded up to the
nearest $50,000).
Holders of the Series A QUIPS will be entitled to receive preferential
cumulative cash distributions accumulating from the date of original issuance
and payable quarterly in arrears on the first day of January, April, July and
October of each year, commencing April 1, 1997, at the annual rate of % of
the Liquidation Amount of $25 per Series A QUIPS ("Distributions"). Subject to
certain exceptions described herein, the Company has the right to defer
payment of interest on the Series A Subordinated Debentures at any time or
from time to time for a period not exceeding 20 consecutive quarters with
respect to each deferral period (each, an "Extension Period"), provided that
no Extension Period may extend beyond the Stated Maturity of the Series A
Subordinated Debentures. Upon the termination of any such Extension Period and
the payment of all amounts then due, the Company may elect to begin a new
Extension Period subject to the requirements set forth herein. If interest
payments on the Series A Subordinated Debentures are so deferred,
Distributions on the Series A QUIPS will also be deferred and the Company will
not be permitted, subject to certain exceptions described herein, to declare
or pay any cash distributions with respect to the Company's capital stock or
debt securities of the Company that rank pari passu with or junior to the
Series A Subordinated Debentures. During an Extension Period, interest on the
Series A Subordinated Debentures will continue to accrue (and the amount of
Distributions to which holders of the Series A QUIPS are entitled will
accumulate) at the rate of % per annum, compounded quarterly, and holders
of Series A QUIPS will be required to accrue interest income for United States
federal income tax purposes. See "Certain Terms of Series A Subordinated
Debentures -- Option to Defer Interest Payments" and "Certain Federal Income
Tax Consequences -- Interest Income and Original Issue Discount."
The Company has, through the Series A Guarantee, the Trust Agreement, the
Series A Subordinated Debentures, the Indenture and the Expense Agreement
(each as defined herein), taken together, fully, irrevocably and
unconditionally guaranteed on a subordinated basis all of the Series A
Issuer's obligations under the Series A QUIPS. See "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated Debentures and the
Guarantees -- Full and Unconditional Guarantee" in the accompanying
Prospectus. The Series A Guarantee of the Company guarantees the payment of
Distributions and payments on liquidation or redemption of the Series A QUIPS,
but only in each case to the extent of funds held by the Series A Issuer, as
described herein (the "Series A
S-2
<PAGE>
Guarantee"). See "Description of Guarantees" in the accompanying Prospectus.
If the Company does not make interest payments on the Series A Subordinated
Debentures held by the Series A Issuer, the Series A Issuer will have
insufficient funds to pay Distributions on the Series A QUIPS. The Series A
Guarantee does not cover payment of Distributions when the Series A Issuer
does not have sufficient funds to pay such Distributions. In the event of an
Event of Default (as defined herein) under the Indenture, a holder of Series A
QUIPS may institute a legal proceeding directly against the Company to enforce
payment of a pro-rata portion of the payment due on the Corresponding Series A
Subordinated Debentures. See "Description of Junior Subordinated Debentures --
Enforcement of Certain Rights By Holders of Preferred Securities" in the
accompanying Prospectus. The obligations of the Company under the Series A
Guarantee and the Series A Subordinated Debentures are unsecured and are
subordinate and junior in right of payment to all Senior Indebtedness (as
defined in "Description of Junior Subordinated Debentures -- Subordination" in
the accompanying Prospectus) of the Company. At September 30, 1996, the
aggregate outstanding Senior Indebtedness of the Company was approximately
$5.4 billion. None of the Indenture, the Series A Guarantee or the Trust
Agreement places any limitation on the amount of additional Senior
Indebtedness that may be incurred by the Company.
The Series A QUIPS are subject to mandatory redemption, in whole or in part,
upon repayment of the Series A Subordinated Debentures at maturity or their
earlier redemption. Subject to the Company having received prior approval of
the Federal Reserve to do so if then required under applicable guidelines or
policies, the Series A Subordinated Debentures are redeemable prior to
maturity at the option of the Company (i) on or after January 1, 2002, in
whole at any time or in part from time to time, or (ii) at any time, in whole
(but not in part), upon the occurrence and continuation of a Tax Event,
Capital Treatment Event or Investment Company Event (as defined herein), in
each case at a redemption price equal to the accrued and unpaid interest on
the Series A Subordinated Debentures so redeemed to the date fixed for
redemption, plus 100% of the principal amount thereof. See "Certain Terms of
the Series A QUIPS -- Redemption."
The Company will have the right at any time to terminate the Series A Issuer
and, after satisfaction of liabilities to creditors of the Series A Issuer as
required by applicable laws, cause the Series A Subordinated Debentures to be
distributed to the holders of the Series A QUIPS in liquidation of the Series
A Issuer, subject to the Company having received prior approval of the Federal
Reserve to do so if then required under applicable capital guidelines or
policies. See "Certain Terms of Series A QUIPS -- Liquidation of Series A
Issuer and Distribution of Series A Subordinated Debentures to Holders."
In the event of the termination of the Series A Issuer, after satisfaction
of liabilities to creditors of the Series A Issuer as required by applicable
law, the holders of the Series A QUIPS will be entitled to receive a
Liquidation Amount of $25 per Series A QUIPS plus accumulated and unpaid
Distributions thereon to the date of payment, which may be in the form of a
distribution of such amount in Series A Subordinated Debentures, subject to
certain exceptions. See "Description of Preferred Securities --Liquidation
Distribution Upon Termination" in the accompanying Prospectus.
Application will be made to list the Series A QUIPS on the New York Stock
Exchange under the symbol " Pr ". If the Series A Subordinated Debentures
are distributed to the holders of Series A QUIPS upon the liquidation of the
Series A Issuer, the Company will use its best efforts to list the Series A
Subordinated Debentures on the New York Stock Exchange or such other stock
exchanges or other automated quotation systems, if any, on which the Series A
QUIPS are then listed or traded.
The Series A QUIPS will be represented by global certificates registered in
the name of The Depository Trust Company ("DTC") or its nominee. Beneficial
interests in the Series A QUIPS will be shown on, and transfers thereof will
be effected only through, records maintained by participants in
S-3
<PAGE>
DTC. Except as described in the accompanying Prospectus, Series A QUIPS in
certificated form will not be issued in exchange for the global certificates.
See "Book-Entry Issuance" in the accompanying Prospectus.
The information in this Prospectus Supplement supplements and should be read
in conjunction with the information contained in the accompanying Prospectus.
As used herein, (i) the "Indenture" means the Junior Subordinated Indenture,
as amended and supplemented from time to time, between the Company and The
First National Bank of Chicago, as trustee (the "Debenture Trustee"), and
(ii) the "Trust Agreement" means the Amended and Restated Trust Agreement
relating to the Series A Issuer executed by the Company, as Depositor, The
First National Bank of Chicago, as Property Trustee (the "Property Trustee"),
First Chicago Delaware Inc., as Delaware Trustee (the "Delaware Trustee"), and
the Administrative Trustees named therein (collectively, with the Property
Trustee and Delaware Trustee, the "Issuer Trustees"). The Trust Agreement
provides that each holder of Series A QUIPS by acceptance thereof agrees to
the provisions of the Series A Guarantee and the Indenture. Each of the other
capitalized terms used in this Prospectus Supplement and not otherwise defined
in this Prospectus Supplement has the meaning set forth in the accompanying
Prospectus.
S-4
<PAGE>
RISK FACTORS
Prospective purchasers of the Series A QUIPS should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following
matters. Because holders of Series A QUIPS may receive Series A Subordinated
Debentures on termination of the Series A Issuer, prospective purchasers of
Series A QUIPS are also making an investment decision with regard to the
Series A Subordinated Debentures and should carefully review all the
information regarding the Series A Subordinated Debentures contained herein.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE SERIES A GUARANTEE AND THE
SERIES A SUBORDINATED DEBENTURES
The obligations of the Company under the Series A Subordinated Debentures
are unsecured and rank subordinate and junior in right of payment to all
Senior Indebtedness of the Company. The obligations of the Company under the
Series A Guarantee are unsecured and rank subordinate and junior in right of
payment to all liabilities of the Company other than any liabilities which
expressly by their terms are made pari passu or subordinate to the obligations
of the Company under the Series A Guarantee. At September 30, 1996, the
aggregate outstanding Senior Indebtedness of the Company was approximately
$5.4 billion. None of the Indenture, the Series A Guarantee or the Trust
Agreement places any limitation on the amount of additional secured or
unsecured debt, including Senior Indebtedness, that may be incurred by the
Company. See "Description of Guarantees -- Status of the Guarantees" and
"Description of Junior Subordinated Debentures -- Subordination" in the
accompanying Prospectus. The Company is a legal entity separate and distinct
from its principal subsidiary, Wells Fargo Bank, National Association (the
"Bank"), and its other affiliates. There are various legal limitations on the
extent to which the Bank may extend credit, pay dividends or otherwise supply
funds to the Company or various of its affiliates. Since the Company is a
holding company, the right of the Company to participate in any distribution
of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Series A
QUIPS to benefit indirectly from such distribution) is subject to the prior
claims of creditors of that subsidiary, except to the extent that the Company
may itself be a creditor of that subsidiary. Claims on the Company's
subsidiaries by creditors other than the Company include long-term debt and
substantial obligations in respect of federal funds purchased, securities sold
under repurchase agreements and certain other short-term borrowings, as well
as deposit liabilities. Accordingly, the Series A Subordinated Debentures will
be effectively subordinated to all existing and future liabilities of the
Company's subsidiaries, and holders of Series A Subordinated Debentures should
look only to the assets of the Company for payments on the Series A
Subordinated Debentures. See "Wells Fargo & Company."
The ability of the Series A Issuer to pay amounts due on the Series A QUIPS
is solely dependent upon the Company making payments on the Series A
Subordinated Debentures as and when required.
OPTION TO DEFER INTEREST PAYMENTS; TAX CONSEQUENCES; MARKET PRICE CONSEQUENCES
So long as no Event of Default under the Indenture has occurred or is
continuing, the Company has the right under the Indenture to defer the payment
of interest on the Series A Subordinated Debentures at any time or from time
to time for a period not exceeding 20 consecutive quarters with respect to
each Extension Period, provided that no Extension Period may extend beyond the
Stated Maturity of the Series A Subordinated Debentures. As a consequence of
any such deferral, quarterly Distributions on the Series A QUIPS by the Series
A Issuer will be deferred (and the amount of Distributions to which holders of
the Series A QUIPS are entitled will accumulate additional Distributions
thereon at the rate of % per annum, compounded quarterly from the relevant
S-5
<PAGE>
payment date for such Distributions) during any such Extension Period. During
any such Extension Period, the Company may not, and may not permit any
subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company (including other Junior Subordinated
Debentures) that rank pari passu with or junior in interest to the Series A
Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any subsidiary of the
Company if such guarantee ranks pari passu with or junior in interest to the
Series A Subordinated Debentures (other than (a) dividends or distributions in
common stock of the Company, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under any Guarantee, and (d)
purchases of common stock related to the issuance of common stock or rights
under any of the Company's benefit plans for its directors, officers or
employees). Prior to the termination of any such Extension Period, the Company
may further defer the payment of interest, provided that no Extension Period
may exceed 20 consecutive quarters or extend beyond the Stated Maturity of the
Series A Subordinated Debentures. Upon the termination of any Extension Period
and the payment of all interest then accrued and unpaid (together with
interest thereon at the annual rate of %, compounded quarterly, to the
extent permitted by applicable law), the Company may elect to begin a new
Extension Period subject to the above requirements. There is no limitation on
the number of times that the Company may elect to begin an Extension Period.
See "Certain Terms of Series A QUIPS -- Distributions" and "Certain Terms of
Series A Subordinated Debentures -- Option to Extend Interest Payment Period."
Should an Extension Period occur, a holder of Series A QUIPS will continue
to accrue income for United States federal income tax purposes (in the form of
original issue discount) in respect of its pro rata share of the Series A
Subordinated Debentures held by the Series A Issuer. As a result, a holder of
Series A QUIPS will include such income in gross income for United States
federal income tax purposes in advance of the receipt of cash, and will not
receive the cash related to such income from the Series A Issuer if the holder
disposes of the Series A QUIPS prior to the record date for the payment of
Distributions. See "Certain Federal Income Tax Consequences -- Interest Income
and Original Issue Discount" and "-- Sales or Redemption of Series A QUIPS."
The Company believes that the likelihood of its exercising its right to
defer payments of interest is remote. However, should the Company elect to
exercise such right in the future, the market price of the Series A QUIPS is
likely to be affected. A holder that disposes of its Series A QUIPS during an
Extension Period, therefore, might not receive the same return on its
investment as a holder that continues to hold its Series A QUIPS. In addition,
as a result of the existence of the Company's right to defer interest
payments, the market price of the Series A QUIPS (which represent preferred
beneficial interests in the Series A Issuer) may be more volatile than the
market prices of other securities on which original issue discount accrues
that are not subject to such deferrals.
S-6
<PAGE>
TAX EVENT, CAPITAL TREATMENT EVENT OR INVESTMENT COMPANY EVENT -- REDEMPTION
Upon the occurrence and continuation of a Tax Event, Capital Treatment Event
or Investment Company Event, the Company has the right to redeem the Series A
Subordinated Debentures in whole (but not in part) within 90 days following
the occurrence of such Tax Event, Capital Treatment Event or Investment
Company Event and thereby cause a mandatory redemption of the Series A QUIPS
before, as well as on or after, January 1, 2002. The exercise of such
redemption right is subject to the Company having received prior approval from
the Federal Reserve to do so if then required under applicable guidelines or
policies of the Federal Reserve. An "Investment Company Event" means the
receipt by the Series A Issuer of an opinion of counsel experienced in such
matters to the effect that, as a result of the occurrence of a change in law
or regulation or change in interpretation or application of law or regulation
by any legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the Series A Issuer is or will be considered an
investment company that is required to be registered under the Investment
Company Act of 1940, as amended, which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the Series A QUIPS.
The term "Capital Treatment Event" means the reasonable determination by the
Company that, as a result of the occurrence of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or which pronouncement, action or
decision is announced on or after the date of issuance of the Series A QUIPS,
there is more than an insubstantial risk that the Company will not be entitled
to treat an amount equal to the aggregate Liquidation Amount of the Series A
QUIPS as "Tier 1 Capital" (or the then equivalent thereof) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company.
A "Tax Event" means the receipt by the Series A Issuer of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance
of the Series A QUIPS under the Trust Agreement, there is more than an
insubstantial risk that (i) the Series A Issuer is, or will be within 90 days
of the date of such opinion, subject to United States Federal income tax with
respect to income received or accrued on the Series A Subordinated Debentures,
(ii) interest payable by the Company on the Series A Subordinated Debentures
is not, or within 90 days of such opinion, will not be, deductible by the
Company, in whole or in part, for United States Federal income tax purposes,
or (iii) the Series A Issuer is, or will be within 90 days of the date of the
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
See "Risk Factors -- Possible Tax Law Changes Affecting the Series A QUIPS"
for a discussion of certain legislative proposals that, if adopted, could give
rise to a Tax Event, which may permit the Company to cause a redemption of the
Series A QUIPS prior to January 1, 2002.
EXCHANGE OF SERIES A QUIPS FOR SERIES A SUBORDINATED DEBENTURES
The Company will have the right at any time to terminate the Series A Issuer
and, after satisfaction of liabilities to creditors of the Series A Issuer as
required by applicable law, cause the Series A Subordinated Debentures to be
distributed to the holders of the Series A QUIPS in exchange therefor upon
liquidation of the Series A Issuer. The exercise of such right is subject to
the Company having received prior approval of the Federal Reserve if then
required under applicable capital guidelines or
S-7
<PAGE>
policies. See "Certain Terms of the Series A QUIPS -- Liquidation of Series A
Issuer and Distribution of Series A Subordinated Debentures to Holders."
Under current law, and assuming, as expected, the Series A Issuer is treated
as a grantor trust, a distribution by the Series A Issuer of the Series A
Subordinated Debentures as described under the caption "Certain Terms of
Series A QUIPS -- Liquidation of Series A Issuer and Distribution of Series A
Subordinated Debentures to Holders" will be non-taxable and will result in the
holder of Series A QUIPS receiving directly his pro rata share of the Series A
Subordinated Debentures previously held indirectly through the Series A
Issuer, with a holding period and aggregate tax basis equal to the holding
period and aggregate tax basis such holder of Series A QUIPS had in its
Series A QUIPS before such distribution. A holder of Series A QUIPS will
accrue interest in respect of Series A Subordinated Debentures received from
the Series A Issuer in the manner described below under "Certain Federal
Income Tax Consequences--Interest Income and Original Issue Discount."
However, if there should be a change in law (including a change in legal
interpretation), a distribution of Series A Subordinated Debentures could be a
taxable event to the holders of Series A QUIPS.
SHORTENING OF STATED MATURITY OF SERIES A SUBORDINATED DEBENTURES
The Company will have the right at any time to shorten the maturity of the
Series A Subordinated Debentures to a date not earlier than January 1, 2002
and thereby cause the Series A QUIPS to be redeemed on such earlier date. The
exercise of such right is subject to the Company having received prior
approval of the Federal Reserve if then required under applicable capital
guidelines or policies.
EXTENSION OF STATED MATURITY OF SERIES A SUBORDINATED DEBENTURES
The Company will also have the right to extend the maturity of the Series A
Subordinated Debentures whether or not the Series A Issuer is terminated and
the Series A Subordinated Debentures are distributed to holders of the Series
A QUIPS to a date no later than the 49th anniversary of the initial issuance
of the Series A QUIPS, provided that the Company can extend the maturity only
if at the time such election is made and at the time of such extension (i) the
Company is not in bankruptcy, otherwise insolvent or in liquidation, (ii) the
Company is not in default in the payment of any interest or principal on the
Series A Subordinated Debentures, (iii) the Series A Issuer is not in arrears
on payments of Distributions on the Series A QUIPS and no deferred
Distributions are accumulated and (iv) the Series A Subordinated Debentures
are rated not less than BBB- by Standard & Poor's Ratings Services or Baa3 by
Moody's Investor Service, Inc. or the equivalent by any other nationally
recognized statistical rating organization. To the extent that the Stated
Maturity of the Series A Subordinated Debentures is extended at such time as
the Series A QUIPS are outstanding, the Series A QUIPS would remain
outstanding until such extended date or until redeemed at an earlier date.
MARKET PRICES
There can be no assurance as to the market prices for Series A QUIPS or
Series A Subordinated Debentures that may be distributed in exchange for
Series A QUIPS if a liquidation of the Series A Issuer occurs. Accordingly,
the Series A QUIPS that an investor may purchase, whether pursuant to the
offer made hereby or in the secondary market, or the Series A Subordinated
Debentures that a holder of Series A QUIPS may receive on liquidation of the
Series A Issuer, may trade at a discount to the price that the investor paid
to purchase the Series A QUIPS offered hereby. As a result of the existence of
the Corporation's right to defer interest payments, the market price of the
Series A QUIPS (which represent beneficial ownership interests in the Series A
Issuer) may be more volatile than the market prices of other debt securities
that are not subject to such optional deferrals. In addition, because the
Company has the right to (i) shorten the Maturity of the Series A Subordinated
Debentures (subject to prior approval of the Federal Reserve if then required
under applicable capital
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guidelines or policies) or (ii) extend the maturity of the Series A
Subordinated Debentures (subject to the conditions described above), there can
be no assurance that the Company will not exercise its option to change the
maturity of the Series A Subordinated Debentures as permitted by the terms
thereof and of the Indenture. See "Certain Terms of the Series A Subordinated
Debentures" and "Description of Junior Subordinated Debentures --
Corresponding Junior Subordinated Debentures" in the accompanying Prospectus.
RIGHTS UNDER THE SERIES A GUARANTEE
The Series A Guarantee will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The First
National Bank of Chicago will act as the indenture trustee under the Series A
Guarantee (the "Guarantee Trustee") for the purposes of compliance with the
Trust Indenture Act and will hold the Series A Guarantee for the benefit of
the holders of the Series A QUIPS. The First National Bank of Chicago will
also act as Debenture Trustee for the Series A Subordinated Debentures and as
Property Trustee under the Trust Agreement and its affiliate First Chicago
Delaware Inc. will act as Delaware Trustee under the Trust Agreement. The
Series A Guarantee guarantees to the holders of the Series A QUIPS the
following payments, to the extent not paid by the Series A Issuer: (i) any
accumulated and unpaid Distributions required to be paid on the Series A
QUIPS, to the extent that the Series A Issuer has funds on hand available
therefor at such time, (ii) the redemption price with respect to any Series A
QUIPS called for redemption, to the extent that the Series A Issuer has funds
on hand available therefor at such time, and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of the Series A Issuer
(unless the Series A Subordinated Debentures are distributed to holders of the
Series A QUIPS), the lesser of (a) the aggregate of the Liquidation Amount and
all accrued and unpaid Distributions to the date of payment to the extent that
the Series A Issuer has funds on hand available therefor at such time and (b)
the amount of assets of the Series A Issuer remaining available for
distribution to holders of the Series A QUIPS.
The holders of not less than a majority in aggregate Liquidation Amount of
the Series A QUIPS have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee in
respect of the Series A Guarantee or to direct the exercise of any trust power
conferred upon the Guarantee Trustee under the Series A Guarantee. Any holder
of the Series A QUIPS may institute a legal proceeding directly against the
Company to enforce its rights under the Series A Guarantee without first
instituting a legal proceeding against the Series A Issuer, the Guarantee
Trustee or any other person or entity. If the Company were to default on its
obligation to pay amounts payable under the Series A Subordinated Debentures,
the Series A Issuer would lack funds for the payment of Distributions or
amounts payable on redemption of the Series A QUIPS or otherwise, and, in such
event, holders of the Series A QUIPS would not be able to rely upon the
Series A Guarantee for payment of such amounts. Instead, in the event a
Debenture Event of Default shall have occurred and be continuing and such
event is attributable to the failure of the Company to pay interest on or
principal of the Series A Subordinated Debentures on the applicable payment
date, then a holder of Series A QUIPS may institute a legal proceeding
directly against the Company for enforcement of payment to such holder of the
principal of or interest on such Series A Subordinated Debentures having a
principal amount equal to the aggregate Liquidation Amount of the Series A
QUIPS of such holder (a "Direct Action"). In connection with such Direct
Action, the Company will have a right of set-off under the Indenture to the
extent of any payment made by the Company to such holder of Series A QUIPS in
the Direct Action. Except as described herein, holders of Series A QUIPS will
not be able to exercise directly any other remedy available to the holders of
the Series A Subordinated Debentures or assert directly any other rights in
respect of the Series A Subordinated Debentures. See "Description of Junior
Subordinated Debentures --Enforcement of Certain Rights of Holders of
Preferred Securities," "Description of Junior Subordinated Debentures --
Debenture Events of Default" and "Description of Guarantees" in the
accompanying Prospectus. The Trust Agreement
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provides that each holder of Series A QUIPS by acceptance thereof agrees to
the provisions of the Series A Guarantee and the Indenture.
LIMITED VOTING RIGHTS
Holders of Series A QUIPS will generally have limited voting rights relating
only to the modification of the Series A QUIPS, and the exercise of the Series
A Guarantee and of the Series A Issuer's rights as holder of Series A
Subordinated Debentures. Holders of Series A QUIPS will not be entitled to
vote to appoint, remove or replace the Property Trustee or the Delaware
Trustee, and such voting rights are vested exclusively in the holder of the
Series A Common Securities except upon the occurrence of certain events
described herein. The Property Trustee, the Administrative Trustees and the
Company may amend the Trust Agreement without the consent of holders of Series
A QUIPS to ensure that the Series A Issuer will be classified for United
States federal income tax purposes as a grantor trust even if such action
adversely affects the interests of such holders. See "Description of Preferred
Securities -- Voting Rights; Amendment of Each Trust Agreement" and "--
Removal of Issuer Trustees" in the accompanying Prospectus.
TRADING CHARACTERISTICS OF SERIES A QUIPS
Application will be made to list the Series A QUIPS on the New York Stock
Exchange. If the Series A QUIPS are not listed on a national securities
exchange or the NASDAQ National Market and the underwriters do not make a
market for the securities, the liquidity of the Series A QUIPS could be
adversely affected. Even if listed, the Series A QUIPS may trade at prices
that do not fully reflect the value of accrued and unpaid interest with
respect to the underlying Series A Subordinated Debentures.
POSSIBLE TAX LAW CHANGES AFFECTING THE SERIES A QUIPS
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill")
proposed by the Clinton administration was released. The Bill would, among
other things, generally deny interest deductions for interest on an instrument
issued by a corporation that has a maximum term of more than 20 years and that
is not shown as indebtedness on the separate balance sheet of the issuer or,
where the instrument is issued to a related party (other than a corporation),
where the holder or some other related party issues a related instrument that
is not shown as indebtedness on the issuer's consolidated balance sheet. If
the provision were to apply to the Series A Subordinated Debentures, the
Company would be unable to deduct interest on the Series A Subordinated
Debentures. However, on March 29, 1996, the Chairmen of the Senate Finance and
House Ways and Means Committees issued a joint statement to the effect that it
was their intention that the effective date of the President's legislative
proposals, if adopted, will be no earlier than the date of appropriate
Congressional action on the proposals. The proposals were not enacted in the
recently concluded session of Congress and, under current law, the Company is
able to deduct interest on the Series A Subordinated Debentures. There can be
no assurance, however, that final legislation similar to the Bill or future
legislative proposals, future regulations or official administrative
pronouncements, or future judicial decisions will not affect the ability of
the Company to deduct interest on the Series A Subordinated Debentures. Such a
change could give rise to a Tax Event, which may permit the Company, upon
approval of the Federal Reserve if then required under applicable capital
guidelines or policies, to cause a redemption of the Series A QUIPS before, as
well as after, January 1, 2002. See "Certain Terms of Series A Subordinated
Debentures -- Redemption" in this Prospectus Supplement and "Description of
Preferred Securities -- Redemption or Exchange -- Tax Event Redemption" in the
accompanying Prospectus. See also "Certain Federal Income Tax Consequences --
Possible Tax Law Changes."
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<PAGE>
WELLS FARGO CAPITAL I
Wells Fargo Capital I (the "Series A Issuer") is a statutory business trust
created under Delaware law pursuant to (i) the Trust Agreement executed by the
Company, as Depositor, and an initial Delaware Trustee and (ii) the filing of
a certificate of trust and a restated certificate of trust with the Delaware
Secretary of State on October 30, 1996 and November 20, 1996, respectively.
Under the amended and restated Trust Agreement (the "Trust Agreement"), the
Series A Issuer's business and affairs are conducted by the Issuer Trustees:
the Property Trustee, the Delaware Trustee, and three individual
Administrative Trustees who are employees or officers of or affiliated with
the Company. The Series A Issuer exists for the exclusive purposes of
(i) issuing and selling the Series A QUIPS and Series A Common Securities,
(ii) using the proceeds from the sale of Series A QUIPS and Series A Common
Securities to acquire Series A Subordinated Debentures issued by the Company
and (iii) engaging in only those other activities necessary, advisable or
incidental thereto (such as registering the transfer of the Series A
Securities). Accordingly, the Series A Subordinated Debentures will be the
sole assets of the Series A Issuer, and payments by the Company under the
Series A Subordinated Debentures and the related Expense Agreement will be the
sole revenue of the Series A Issuer. All of the Series A Common Securities
will be owned by the Company. The Series A Common Securities will rank pari
passu, and payments will be made thereon pro rata, with the Series A QUIPS,
except that upon the occurrence and continuance of an event of default under
the Trust Agreement resulting from an Event of Default under the Indenture,
the rights of the Company as holder of the Series A Common Securities to
payment in respect of Distributions and payments upon liquidation, redemption
or otherwise will be subordinated to the rights of the holders of the Series A
QUIPS. See "Description of Preferred Securities -- Subordination of Common
Securities" in the accompanying Prospectus. The Company will acquire Series A
Common Securities in an aggregate liquidation amount of $15.5 million, which
is equal to approximately 3% of the total capital of the Series A Issuer. The
Series A Issuer has a term of 55 years, but may terminate earlier as provided
in the Trust Agreement. The principal executive office of the Series A Issuer
is 420 Montgomery Street, San Francisco, California 94163, and its telephone
number is (415) 477-1000. See "The Issuers" in the accompanying Prospectus.
The Company anticipates that the Series A Issuer will not be subject to the
reporting requirements of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
WELLS FARGO & COMPANY
Wells Fargo & Company is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended. On April 1, 1996, the Company
completed its acquisition of First Interstate Bancorp ("First Interstate"). On
the basis of assets as of September 30, 1996, the Company was the eighth
largest bank holding company in the United States. As of September 30, 1996,
the Company had loans of $69.2 billion, total assets of $109.2 billion, total
deposits of $83.7 billion and stockholders' equity of $14.9 billion. Its
principal subsidiary is Wells Fargo Bank, National Association (the "Bank").
The Bank is primarily engaged in retail, commercial and corporate banking,
real estate lending and trust and investment services.
The Company is a legal entity separate and distinct from the Bank and its
other affiliates. There are various legal limitations on the extent to which
the Bank may extend credit, pay dividends or otherwise supply funds to the
Company or various of its affiliates. The executive offices of the Company are
located at 420 Montgomery Street, San Francisco, California 94163. The
Company's telephone number is (415) 477-1000.
Since the Company is a holding company, the rights of the Company to
participate in any distribution of assets of any subsidiary upon its
liquidation or reorganization or otherwise (and thus the ability of holders of
the Series A Subordinated Debentures to benefit indirectly from such
distribution) are subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company
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may itself be a creditor of that subsidiary. Claims on the Company's
subsidiaries by creditors other than the Company include long-term debt and
substantial obligations in respect of federal funds purchased, securities sold
under repurchase agreements and certain other short-term borrowings, as well
as deposit liabilities.
Wells Fargo Capital A, Wells Fargo Capital B and Wells Fargo Capital C (each
a Delaware business trust all of whose common securities are owned by the
Company) have recently issued an aggregate of $750 million of capital
securities under a structure similar to the structure of the Series A QUIPS,
albeit on different terms. Wells Fargo Capital A and Wells Fargo Capital B
issued $300 million and $200 million of capital securities, respectively, on
November 27, 1996, and Wells Fargo Capital C issued $250 million of capital
securities on December 3, 1996. The capital securities issued by Wells Fargo
Capital A, Wells Fargo Capital B, and Wells Fargo Capital C, and the related
junior subordinated deferrable interest debentures and guarantee of the
Company, will rank pari passu with the Series A QUIPS, Series A Subordinated
Debentures and Series A Guarantee, respectively. All of such capital
securities are expected to qualify for Tier 1 capital treatment by the
Company. See "Regulatory Capital Benefits to Wells Fargo & Company" in the
accompanying Prospectus.
CONSOLIDATED RATIOS OF EARNINGS TO FIXED CHARGES
The following sets forth the consolidated historical ratios of earnings to
fixed charges and the historical ratios of earnings to fixed charges and
preferred stock dividends of the Company for the periods indicated:
<TABLE>
<CAPTION>
QUARTER ENDED NINE MONTHS ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, SEPTEMBER 30, ------------------------
1996 1996 1995 1994 1993 1992 1991
------------- ----------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Ratios of
Earnings to
Fixed Charges (1)(3)
Including interest on
deposits............. 2.02 2.13 2.19 2.20 1.90 1.33 1.02
Excluding interest on
deposits............. 5.34 5.46 4.56 5.04 4.53 2.56 1.10
Consolidated Ratios of
Earnings to
Fixed Charges and Pre-
ferred Stock
Dividends (1)(2)(3)
Including interest on
deposits............. 1.91 2.02 2.09 2.07 1.77 1.26 1.00
Excluding interest on
deposits............. 4.28 4.48 3.99 4.18 3.51 2.02 1.01
</TABLE>
- --------
(1) For purposes of computing these ratios, earnings represent income before
income tax expense plus fixed charges. Fixed charges represent interest
expense plus the estimated interest component of net rental expense.
(2) The preferred stock dividends are increased to amounts representing the
pretax earnings required to cover such dividends.
(3) These computations are included herein in compliance with Securities and
Exchange Commission regulations. However, management believes the fixed
charge ratios are not meaningful measures for the business of the Company
because of two factors. First, even if there were no change in net income,
the ratios would decline with an increase in the proportion of income
which is tax-exempt or, conversely, they would increase with a decrease in
the proportion of income which is tax-exempt. Second, even if there were
no change in net income, the ratios would decline if interest income and
interest expense increase by the same amount due to an increase in the
level of interest rates or, conversely, they would increase if interest
income and interest expense decrease by the same amount due to a decrease
in the level of interest rates.
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ACCOUNTING TREATMENT
For financial reporting purposes, the Series A Issuer will be treated as a
subsidiary of the Company and, accordingly, the accounts of the Series A
Issuer will be included in the consolidated financial statements of the
Company. The assets of the Series A Issuer consist solely of the Series A
Subordinated Debentures and the right under the Expense Agreement to
reimbursement by the Company of the Series A Issuer's operating expenses. The
Series A Subordinated Debentures have a principal amount of $515.5 million, an
interest rate of % and mature on January 1, 2027, which date may be (i)
shortened to a date not earlier than January 1, 2002 or (ii) extended to a
date not later than January 1, 2046, in each case if certain conditions are
met (including, in the case of a shortening of maturity, the Company having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies).
The Series A QUIPS will be presented as a separate line item in the
consolidated balance sheet of the Company, which will be entitled "Guaranteed
Preferred Beneficial Interests in Company's Subordinated Debentures," and
appropriate disclosures about the Series A QUIPS, the Series A Guarantee and
the Series A Subordinated Debentures will be included in the notes to the
consolidated financial statements. For financial reporting purposes, the
Company will record Distributions payable on the Series A QUIPS as an expense
in the consolidated statement of income.
The Company has agreed that future financial reports of the Company will:
(i) present the Series A QUIPS and any other Preferred Securities of Issuers
(each as defined in the accompanying Prospectus) on the Company's balance
sheet as a separate line item, which will be entitled "Guaranteed Preferred
Beneficial Interests in Company's Subordinated Debentures;" (ii) include, in
an audited note to the financial statements, disclosure that the sole assets
of the Issuers are the Junior Subordinated Debentures (specifying as to each
Issuer the principal amount, interest rate and maturity date of Junior
Subordinated Debentures held); and (iii) if Staff Accounting Bulletin 53
treatment is sought, include, in an audited note to the financial statements,
disclosure that (a) the common securities of the Issuers are wholly owned by
the Company, (b) the sole assets of the Issuers are the Junior Subordinated
Debentures (specifying as to each Issuer the principal amount, interest rate
and maturity date of Junior Subordinated Debentures held) and (c) the
obligations of the Company under the Junior Subordinated Debentures, the
Indenture, the relevant trust agreement and the Guarantees, in the aggregate,
constitute a full and unconditional guarantee by the Company on a subordinated
basis of the Issuers' obligations under the Preferred Securities issued by
each Issuer.
CERTAIN TERMS OF SERIES A QUIPS
GENERAL
The following summary of certain terms and provisions of the Series A QUIPS
supplements the description of the terms and provisions of the Preferred
Securities set forth in the accompanying Prospectus under the heading
"Description of Preferred Securities," to which description reference is
hereby made. This summary of certain terms and provisions of the Series A
QUIPS does not purport to be complete and is subject to, and qualified in its
entirety by reference to, the Trust Agreement. The form of the Trust Agreement
has been filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and accompanying Prospectus form is a part.
DISTRIBUTIONS
The Series A QUIPS represent beneficial ownership interests in the Series A
Issuer, and Distributions on each Series A QUIPS will be payable at the annual
rate of % of the stated Liquidation Amount of $25, payable quarterly in
arrears on January 1, April 1, July 1 and October 1 of each year, to the
holders of the Series A QUIPS on the relevant record dates. The record dates
will
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be, for so long as the Series A QUIPS remain in book-entry form, one Business
Day (as defined in the accompanying Prospectus) prior to the relevant
Distribution payment date and, in the event the Series A QUIPS are not in
book-entry form, the 15th day of the month in which the relevant Distribution
payment date occurs. Distributions will accumulate from the date of original
issuance. The first Distribution payment date for the Series A QUIPS will be
April 1, 1997. The amount of Distributions payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. In the event
that any date on which Distributions are payable on the Series A QUIPS is not
a Business Day, then payment of the Distributions payable on such date will be
made on the next succeeding day that is a Business Day (and without any
additional Distributions or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year,
such payment shall be made on the immediately preceding Business Day, in each
case with the same force and effect as if made on the date such payment was
originally payable. See "Description of Preferred Securities -- Distributions"
in the accompanying Prospectus.
So long as no Debenture Event of Default has occurred and is continuing, the
Company has the right under the Indenture to defer the payment of interest on
the Series A Subordinated Debentures at any time or from time to time for a
period not exceeding 20 consecutive quarters with respect to each Extension
Period, provided that no Extension Period may extend beyond the Stated
Maturity of the Series A Subordinated Debentures. As a consequence of any such
deferral, quarterly Distributions on the Series A QUIPS by the Series A Issuer
will also be deferred during any such Extension Period. Distributions to which
holders of the Series A QUIPS are entitled will accumulate additional
Distributions thereon at the rate per annum of % thereof, compounded
quarterly from the relevant payment date for such Distributions. The term
"Distributions" as used herein shall include any such additional
Distributions. During any such Extension Period, the Company may not, and may
not permit any subsidiary of the Company to, (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a liquidation
payment with respect to, any of the Company's capital stock or (ii) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities of the Company (including other series of Junior
Subordinated Debentures) that rank pari passu with or junior in interest to
the Series A Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks pari passu or junior in
interest to the Series A Subordinated Debentures (other than (a) dividends or
distributions in common stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under any
Guarantee, and (d) purchases of common stock related to the issuance of common
stock or rights under any of the Company's benefit plans for its directors,
officers or employees). Prior to the termination of any such Extension Period,
the Company may further defer the payment of interest, provided that no
Extension Period may exceed 20 consecutive quarters or extend beyond the
Stated Maturity of the Series A Subordinated Debentures. Following the
termination of any such Extension Period and the payment of all amounts then
due, the Company may elect to begin a new Extension Period. There is no
limitation on the number of times that the Company may elect to begin an
Extension Period. See "Certain Terms of Series A Subordinated Debentures --
Option to Extend Interest Payment Period" and "Certain Federal Income Tax
Consequences -- Original Issue Discount."
The Company has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series A
Subordinated Debentures.
REDEMPTION
Upon the repayment or redemption, in whole or in part, of the Series A
Subordinated Debentures, whether at Stated Maturity or upon earlier redemption
as provided in the Indenture, the proceeds from
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such repayment or redemption shall be applied by the Property Trustee to
redeem a Like Amount (as defined in the accompanying Prospectus) of the Series
A Securities, upon not less than 15 nor more than 60 days notice prior to the
date fixed for repayment or redemption, at a redemption price, with respect to
the Series A QUIPS (the "Redemption Price"), equal to the aggregate
Liquidation Amount of such Series A QUIPS plus accumulated and unpaid
Distributions thereon to the date of redemption (the "Redemption Date"). See
"Description of Preferred Securities -- Redemption or Exchange" in the
accompanying Prospectus. For a description of the Stated Maturity and
redemption provisions of the Series A Subordinated Debentures, see "Certain
Terms of Series A Subordinated Debentures -- General" and "-- Redemption."
Under regulations of the Federal Reserve, any perpetual preferred securities
with a feature permitting redemption at the option of the issuer can qualify
as Tier 1 capital only if the redemption is subject to prior approval of the
Federal Reserve. Therefore, any redemption of the Series A Subordinated
Debentures and attendant redemption of the Series A Securities will be subject
to the prior approval of the Federal Reserve if such regulations have not been
revised. Under current policies, the Federal Reserve may grant approval of a
redemption without a formal application or notice if (1) the redemption,
together with other redemptions and repurchases of securities in the preceding
12 months, constitutes less than 10% of the bank holding company's net worth
or (2) both before and after the redemption, the bank holding company is well-
capitalized and highly-rated.
LIQUIDATION OF SERIES A ISSUER AND DISTRIBUTION OF SERIES A SUBORDINATED
DEBENTURES TO HOLDERS
The Company will have the right at any time to terminate the Series A Issuer
and, after satisfaction of liabilities to creditors of the Series A Issuer as
required by applicable law, cause the Series A Subordinated Debentures to be
distributed to the holders of Series A QUIPS in exchange therefor upon
liquidation of the Series A Issuer. Such right is subject to the Company
having received prior approval of the Federal Reserve if then required under
applicable guidelines or policies of the Federal Reserve.
Under current United States Federal income tax law and interpretations and
assuming, as expected, the Series A Issuer is treated as a grantor trust, a
distribution of the Series A Subordinated Debentures in exchange for Series A
QUIPS should not be a taxable event to holders of the Series A QUIPS. Should
there be a change in law, a change in legal interpretation, a Tax Event or
other circumstances, however, the distribution could be a taxable event to
holders of the Series A QUIPS. See "Certain Federal Income Tax Consequences --
Distribution of Series A Subordinated Debentures to Holders of Series A
QUIPS." If the Company elects neither to redeem the Series A Subordinated
Debentures prior to maturity nor to liquidate the Series A Issuer and
distribute the Series A Subordinated Debentures to holders of the Series A
QUIPS, the Series A QUIPS will remain outstanding until the repayment of the
Series A Subordinated Debentures.
If the Company elects to liquidate the Series A Issuer and thereby causes
the Series A Subordinated Debentures to be distributed to holders of the
Series A QUIPS in exchange therefor upon liquidation of the Series A Issuer,
the Company shall continue to have the right to shorten or extend the maturity
of such Series A Subordinated Debentures, subject to certain conditions as
described under "Certain Terms of Series A Subordinated Debentures --
General."
LIQUIDATION VALUE
The amount payable on the Series A QUIPS in the event of any liquidation of
the Series A Issuer is $25 per Series A QUIPS plus accumulated and unpaid
Distributions, which amount may be paid in the form of a distribution of such
amount in Series A Subordinated Debentures, subject to certain exceptions. See
"Description of Preferred Securities -- Liquidation Distribution Upon
Termination" in the accompanying Prospectus.
S-15
<PAGE>
REGISTRATION OF SERIES A QUIPS
The Series A QUIPS will be represented by global certificates registered in
the name of DTC or its nominee. Beneficial interests in the Series A QUIPS
will be shown on, and transfers thereof will be effected only through, records
maintained by participants in DTC. Except as described below and in the
accompanying Prospectus, Series A QUIPS in certificated form will not be
issued in exchange for the global certificates. See "Book-Entry Issuance" in
the accompanying Prospectus.
A global security shall be exchangeable for Series A QUIPS registered in the
names of persons other than DTC or its nominee only if (i) DTC notifies the
Series A Issuer that it is unwilling or unable to continue as a depository for
such global security and no successor depository shall have been appointed, or
if at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, at a time when DTC is required to
be so registered to act as such depository, (ii) the Series A Issuer in its
sole discretion determines that such global security shall be so exchangeable,
or (iii) there shall have occurred and be continuing an event of default under
the Indenture with respect to the Series A Subordinated Debentures. Any global
security that is exchangeable pursuant to the preceding sentence shall be
exchangeable for definitive certificates registered in such names as DTC shall
direct. It is expected that such instructions will be based upon directions
received by DTC from its Participants (as defined in the accompanying
Prospectus) with respect to ownership of beneficial interests in such global
security. In the event that Series A QUIPS are issued in definitive form, such
Series A QUIPS will be in denominations of $25 and integral multiples thereof
and may be transferred or exchanged at the offices described below.
Payments on Series A QUIPS represented by a global security will be made to
DTC, as the depositary for the Series A QUIPS. In the event Series A QUIPS are
issued in certificated form, the Redemption Price and Distributions will be
payable, the transfer of the Series A QUIPS will be registrable, and Series A
QUIPS will be exchangeable for Series A QUIPS of other denominations of a like
aggregate principal amount, at the corporate office of the Property Trustee in
New York, New York, or at the offices of any paying agent or transfer agent
appointed by the Administrative Trustees, provided that payment of any
Distribution may be made at the option of the Administrative Trustees by check
mailed to the address of the persons entitled thereto or by wire transfer. In
addition, if the Series A QUIPS are issued in certificated form, the record
dates for payment of Distributions will be the 15th day of the last month of
each calendar quarter. For a description of DTC and the terms of the
depositary arrangements relating to payments, transfers, voting rights,
redemptions and other notices and other matters, see "Book-Entry Issuance" in
the accompanying Prospectus.
CERTAIN TERMS OF SERIES A SUBORDINATED DEBENTURES
GENERAL
The following summary of certain terms and provisions of the Series A
Subordinated Debentures supplements the description of the terms and
provisions of the Corresponding Junior Subordinated Debentures set forth in
the accompanying Prospectus under the headings "Description of Junior
Subordinated Debentures" and "Description of Junior Subordinated Debentures --
Corresponding Junior Subordinated Debentures," to which description reference
is hereby made. The summary of certain terms and provisions of the Series A
Subordinated Debentures set forth below does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Indenture. The
Indenture has been filed as an exhibit to the Registration Statement of which
this Prospectus Supplement and accompanying Prospectus form a part.
Concurrently with the issuance of the Series A QUIPS, the Series A Issuer
will invest the proceeds thereof, together with the consideration paid by the
Company for the Series A Common Securities, in the Series A Subordinated
Debentures issued by the Company. The Series A Subordinated
S-16
<PAGE>
Debentures will bear interest at the annual rate of % of the principal
amount thereof, payable quarterly in arrears on January 1, April 1, July 1 and
October 1 of each year (each, an "Interest Payment Date"), commencing April 1,
1997, to the person in whose name each Series A Subordinated Debenture is
registered, subject to certain exceptions, at the close of business on the
Business Day next preceding such Interest Payment Date. It is anticipated
that, until the liquidation, if any, of the Series A Issuer, all Series A
Subordinated Debentures will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Series A QUIPS. The amount of
interest payable for any period will be computed on the basis of a 360-day
year of twelve 30-day months. In the event that any date on which interest is
payable on the Series A Subordinated Debentures is not a Business Day, then
payment of the interest payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay), except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and
effect as if made on the date such payment was originally payable. Accrued
interest that is not paid on the applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law) at
the rate per annum of % thereof, compounded quarterly. The term "interest"
as used herein shall include quarterly interest payments, interest on
quarterly interest payments not paid on the applicable Interest Payment Date
and Additional Sums (as defined below), as applicable.
The Series A Subordinated Debentures will be issued as a series of junior
subordinated debentures under the Indenture. The Series A Subordinated
Debentures will mature on January 1, 2027 (such date, as it may be shortened
or extended, as hereinafter described, the "Stated Maturity"). Such date may
be shortened at any time by the Company to any date not earlier than January
1, 2002, subject to the Company having received prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve. Such date may also be extended at any time at the
election of the Company for one or more periods, but in no event to a date
later than January 1, 2046, provided that at the time such election is made
and at the time of extension (i) the Company is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Company is not in default in the payment
of any interest or principal on the Series A Subordinated Debentures, (iii)
the Series A Issuer is not in arrears on payments of Distributions on the
Series A QUIPS and no deferred Distributions are accumulated, and (iv) the
Series A Subordinated Debentures are rated not less than BBB- by Standard &
Poor's Ratings Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of
the Series A Subordinated Debentures, it shall give notice of such shortening
or extension to the Debenture Trustee, and the Debenture Trustee shall give
notice to the holders of the Series A Subordinated Debentures no more than 15
and no less than 60 days prior to the effectiveness thereof.
The Series A Subordinated Debentures will be unsecured and will rank junior
and be subordinate in right of payment to all Senior Indebtedness of the
Company. At September 30, 1996, the aggregate outstanding Senior Indebtedness
of the Company was approximately $5.4 billion. Since the Company is a holding
company, the right of the Company to participate in any distribution of assets
of any subsidiary upon such subsidiary's liquidation or reorganization or
otherwise (and thus the ability of holders of the Series A QUIPS to benefit
indirectly from such distribution) is subject to the prior claims of creditors
of that subsidiary, except to the extent that the Company may itself be a
creditor of that subsidiary. Claims on the Company's subsidiaries by creditors
other than the Company include long-term debt and substantial obligations in
respect of federal funds purchased, securities sold under repurchase
agreements and certain other short-term borrowings, as well as deposit
liabilities. Accordingly, the Series A Subordinated Debentures will be
effectively subordinated to all existing and future liabilities of the
Company's subsidiaries, and holders of Series A Subordinated Debentures should
look only to the assets of the Company for payments on the Series A
Subordinated Debentures. The Indenture does not limit the incurrence or
issuance of other secured or unsecured debt of the Company, including Senior
Indebtedness, whether under the Indenture or any existing or other
S-17
<PAGE>
indenture that the Company may enter into in the future or otherwise,
including the Company's Senior and Subordinated Indentures entered into with
The Chase Manhattan Bank (formerly known as Chemical Bank) and Marine Midland
Bank, respectively. See "Description of Junior Subordinated Debentures --
Subordination" in the accompanying Prospectus.
OPTION TO DEFER INTEREST PAYMENTS
So long as no Event of Default under the Indenture has occurred or is
continuing, the Company has the right under the Indenture at any time during
the term of the Series A Subordinated Debentures to defer the payment of
interest on the Series A Subordinated Debentures at any time or from time to
time for a period not exceeding 20 consecutive quarters with respect to each
Extension Period, provided that no Extension Period may extend beyond the
Stated Maturity of the Series A Subordinated Debentures. At the end of such
Extension Period, the Company must pay all interest then accrued and unpaid on
the Series A Subordinated Debentures (together with interest thereon at the
annual rate of %, compounded quarterly, to the extent permitted by
applicable law). During an Extension Period, interest will continue to accrue
and holders of Series A Subordinated Debentures (and holders of Series A QUIPS
while such series is outstanding) will be required to accrue interest income
for United States federal income tax purposes. See "Certain Federal Income Tax
Consequences -- Original Issue Discount."
During any such Extension Period, the Company may not, and may not permit
any subsidiary of the Company to, (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a liquidation payment
with respect to, any of the Company's capital stock or (ii) make any payment
of principal, interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company (including other series of Junior
Subordinated Debentures) that rank pari passu with or junior in interest to
the Series A Subordinated Debentures or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Series A Subordinated Debentures (other than (a) dividends or
distributions in common stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
with the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments
under any Guarantee, and (d) purchases of common stock related to the issuance
of common stock or rights under any of the Company's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further defer the payment of interest on the
Series A Subordinated Debentures, provided that no Extension Period may exceed
20 consecutive quarters or extend beyond the Stated Maturity of the Series A
Subordinated Debentures. Following the termination of any such Extension
Period and the payment of all amounts then due on the Series A Subordinated
Debentures, the Company may elect to begin a new Extension Period subject to
the above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company must give the
Property Trustee, the Administrative Trustees and the Debenture Trustee notice
of its election to begin such Extension Period at least one Business Day prior
to the earlier of (i) the date the Distributions on the Series A QUIPS would
have been payable except for the election to begin such Extension Period or
(ii) the date the Administrative Trustees are required to give notice to the
New York Stock Exchange, the Nasdaq National Market or other applicable self-
regulatory organization or to holders of such Series A QUIPS of the record
date or (iii) the date such Distributions are payable, but in any event not
less than one Business Day prior to such record date. The Debenture Trustee
shall give notice of the Company's election to begin an Extension Period to
the holders of the Series A Subordinated Debentures, and the Administrative
Trustees shall give notice of the Company's election to the holders of the
Series A QUIPS. There is no limitation on the number of times that the Company
may elect to begin an Extension Period. See "Description of Junior
Subordinated Debentures -- Option to Extend Interest Payment Date" in the
accompanying Prospectus.
S-18
<PAGE>
ADDITIONAL SUMS
If the Series A Issuer is required to pay any additional taxes, duties or
other governmental charges as a result of a Tax Event, the Company will pay as
additional amounts on the Series A Subordinated Debentures such amounts as
shall be required so that the Distributions payable by the Series A Issuer
shall not be reduced as a result of any such additional taxes, duties or other
governmental charges.
REDEMPTION
The Series A Subordinated Debentures are redeemable prior to maturity at the
option of the Company (i) on or after January 1, 2002, in whole at any time or
in part from time to time, or (ii) at any time in whole (but not in part),
upon the occurrence and continuation of a Tax Event, Capital Treatment Event
or Investment Company Event in each case at a redemption price equal to the
accrued and unpaid interest on the Series A Subordinated Debentures so
redeemed to the date fixed for redemption, plus 100% of the principal amount
thereof. As described above in "Certain Terms of Series A QUIPS --
Redemption," any redemption of the Series A Subordinated Debentures may be
subject to prior approval of the Federal Reserve. See "Description of Junior
Subordinated Debentures -- Redemption" in the accompanying Prospectus.
DISTRIBUTION OF SERIES A SUBORDINATED DEBENTURES
As described under "Certain Terms of Series A QUIPS -- Liquidation of Issuer
and Distribution of Series A Subordinated Debentures to Holders," under
certain circumstances involving the termination of the Series A Issuer, Series
A Subordinated Debentures may be distributed to the holders of the Series A
QUIPS in exchange therefor upon liquidation of the Series A Issuer after
satisfaction of liabilities to creditors of the Series A Issuer as provided by
applicable law. If distributed to holders of Series A QUIPS in liquidation,
the Series A Subordinated Debentures will initially be issued in the form of
one or more global securities and DTC, or any successor depositary for the
Series A QUIPS, will act as depositary for the Series A Subordinated
Debentures. It is anticipated that the depositary arrangements for the Series
A Subordinated Debentures would be substantially identical to those in effect
for the Series A QUIPS. If the Series A Subordinated Debentures are
distributed to the holders of Series A QUIPS upon the liquidation of the
Series A Issuer, the Company will use its best efforts to list the Series A
Subordinated Debentures on the New York Stock Exchange or such other stock
exchanges or automated quotation systems, if any, on which the Series A QUIPS
are then listed. There can be no assurance as to the market price of any
Series A Subordinated Debentures that may be distributed to the holders of
Series A QUIPS.
REGISTRATION OF SERIES A SUBORDINATED DEBENTURES
The Series A Subordinated Debentures will be represented by global
certificates registered in the name of DTC or its nominee. Beneficial
interests in the Series A Subordinated Debentures will be shown on, and
transfers thereof will be effected only through, records maintained by
participants in DTC. Except as described below and in the accompanying
Prospectus, Series A Subordinated Debentures in certificated form will not be
issued in exchange for the global certificates. See "Book-Entry Issuance" in
the accompanying Prospectus.
A global security shall be exchangeable for Series A Subordinated Debentures
registered in the names of persons other than DTC or its nominee only if (i)
DTC notifies the Company that it is unwilling or unable to continue as a
depository for such global security and no successor depository shall have
been appointed, or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act at a time when DTC is required to be so
registered to act as such depository, (ii) the Company in its sole discretion
determines that such global security shall be so exchangeable, or (iii) there
shall have occurred and be continuing an Event of Default under the Indenture
with respect to the Series A
S-19
<PAGE>
Subordinated Debentures. Any global security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for definitive certificates
registered in such names as DTC shall direct. It is expected that such
instructions will be based upon directions received by DTC from its
Participants (as defined in the accompanying Prospectus) with respect to
ownership of beneficial interests in such global security. In the event that
Series A Subordinated Debentures are issued in definitive form, such Series A
Subordinated Debentures will be in denominations of $25 and integral multiples
thereof and may be transferred or exchanged at the offices described below.
Payments on Series A Subordinated Debentures represented by a global
security will be made to DTC, as the depositary for the Series A Subordinated
Debentures. In the event Series A Subordinated Debentures are issued in
certificated form, principal and interest will be payable, the transfer of the
Series A Subordinated Debentures will be registrable, and Series A
Subordinated Debentures will be exchangeable for Series A Subordinated
Debentures of other denominations of a like aggregate principal amount, at the
corporate office of the Debenture Trustee in New York, New York, or at the
offices of any paying agent or transfer agent appointed by the Company,
provided that payment of interest may be made at the option of the Company by
check mailed to the address of the persons entitled thereto or by wire
transfer. In addition, if the Series A Subordinated Debentures are issued in
certificated form, the record dates for payment of interest will be the 15th
day of the last month of each calendar quarter. For a description of DTC and
the terms of the depositary arrangements relating to payments, transfers,
voting rights, redemptions and other notices and other matters, see "Book-
Entry Issuance" in the accompanying Prospectus.
S-20
<PAGE>
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income tax
consequences of the purchase, ownership and disposition of Series A QUIPS. The
statements of law and legal conclusions set forth in this summary regarding
the tax consequences to the beneficial owners of Series A QUIPS (the
"Securityholders") represent the opinion of Brobeck, Phleger & Harrison LLP,
counsel to the Company and the Series A Issuer. This summary and the tax
opinion of counsel only address the tax consequences to a person that acquires
Series A QUIPS on their original issue at their original offering price and
that is (i) an individual citizen or resident of the United States, (ii) a
corporation or partnership organized in or under the laws of the United States
or any state thereof or the District of Columbia or (iii) an estate or trust
the income of which is subject to United States federal income tax regardless
of source (a "United States Person"). This summary does not address all tax
consequences that may be applicable to a United States Person that is a
Securityholder, nor does it address the tax consequences to (i) persons that
are not United States Persons, (ii) persons that may be subject to special
treatment under United States federal income tax law, such as banks, insurance
companies, thrift institutions, regulated investment companies, real estate
investment trusts, tax-exempt organizations and dealers in securities or
currencies, (iii) persons that will hold Series A QUIPS as part of a position
in a "straddle" or as part of a "hedging," "conversion" or other integrated
investment transaction for federal income tax purposes, (iv) persons whose
functional currency is not the United States dollar or (v) persons that do not
hold Series A QUIPS as capital assets.
This summary is based upon the Internal Revenue Code of 1986, as amended
(the "Code"), Treasury Regulations, Internal Revenue Service (the "Service")
rulings and pronouncements and judicial decisions now in effect, all of which
are subject to change at any time. Such changes may be applied retroactively
in a manner that could cause the tax consequences to vary substantially from
the consequences described below, possibly adversely affecting a beneficial
owner of Series A QUIPS. In particular, legislation has been proposed that
could adversely affect the Company's ability to deduct interest on the Series
A Subordinated Debentures, which may in turn permit the Company to cause a
redemption of the Series A QUIPS. See "-- Possible Tax Law Changes."
The authorities on which this summary is based (including authorities
distinguishing debt from equity) are subject to various interpretations, and
it is therefore possible that the federal income tax treatment of the Series A
QUIPS may differ from the treatment described below. No ruling has been
received from the Service regarding the tax consequences of the Series A
QUIPS. Counsel's opinion regarding such tax consequences represents only
counsel's best legal judgment based on current authorities and is not binding
on the Service or the courts.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES A QUIPS, AS WELL AS THE
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF THE SERIES A ISSUER
In the opinion of Brobeck, Phleger & Harrison LLP, under current law and
assuming compliance with the terms of the Trust Agreement, the Series A Issuer
will be classified as a grantor trust and not as an association taxable as a
corporation for United States federal income tax purposes. As a result, each
Securityholder will be treated as owning an undivided beneficial interest in
the Series A Subordinated Debentures. Accordingly, each Securityholder will be
required to include in its gross income its pro rata share of the interest
income, including original issue discount, paid or accrued with respect to the
Series A Subordinated Debentures whether or not cash is actually distributed
to the Securityholders. See "-- Interest Income and Original Issue Discount."
No amount included in income with respect to the Series A QUIPS will be
eligible for the dividends-received deduction.
S-21
<PAGE>
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under recently issued Treasury regulations applicable to debt instruments
issued on or after August 13, 1996 (the "Regulations"), a "remote" contingency
that stated interest will not be timely paid will be ignored in determining
whether a debt instrument is issued with original issue discount ("OID"). The
Company believes that the likelihood of its exercising its option to defer
payments is remote. Based on the foregoing, the Company believes that the
Series A Subordinated Debentures will not be considered to be issued with OID
at the time of their original issuance and, accordingly, a Securityholder
should include in gross income such Securityholder's allocable share of
interest on the Series A Subordinated Debentures in accordance with such
Securityholder's method of tax accounting.
Under the Regulations, if the Company should exercise its option to defer
any payment of interest, the Series A Subordinated Debentures would at that
time be treated as issued with OID, and all stated interest on the Series A
Subordinated Debentures would thereafter be treated as OID as long as the
Series A Subordinated Debentures remained outstanding. In such event, all of
the Securityholder's taxable interest income with respect to the Series A
Subordinated Debentures would be accounted for as OID on an economic accrual
basis regardless of such holder's method of tax accounting, and actual
distributions of stated interest would not be reported as taxable income.
Consequently, a Securityholder of Series A QUIPS would be required to include
in gross income OID even though the Company would not make any actual cash
payments during an Extension Period.
The Regulations have not been addressed in any rulings or other
interpretations by the Internal Revenue Service (the "IRS"), and it is
possible that the IRS could take a position contrary to the interpretation
herein.
DISTRIBUTION OF SERIES A SUBORDINATED DEBENTURES TO HOLDERS OF SERIES A QUIPS
Under current law, and assuming, as expected, the Series A Issuer is treated
as a grantor trust, a distribution by the Series A Issuer of the Series A
Subordinated Debentures as described under the caption "Certain Terms of
Series A QUIPS -- Liquidation of Series A Issuer or Distribution of Series A
Subordinated Debentures to Holders" will be non-taxable and will result in the
Securityholder receiving directly his pro rata share of the Series A
Subordinated Debentures previously held indirectly through the Series A
Issuer, with a holding period and aggregate tax basis equal to the holding
period and aggregate tax basis such Securityholder had in its Series A QUIPS
before such distribution. A Securityholder will accrue interest in respect of
Series A Subordinated Debentures received from the Series A Issuer in the
manner described above under "-- Interest Income and Original Issue Discount."
However, if there should be a change in law (including a change in legal
interpretation), a distribution of Series A Subordinated Debentures could be a
taxable event to the holders of Series A QUIPS.
SALES OR REDEMPTION OF SERIES A QUIPS
A Securityholder that sells (including a redemption for cash) Series A QUIPS
will recognize gain or loss equal to the difference between its adjusted tax
basis in the Series A QUIPS and the amount realized on the sale of such Series
A QUIPS. Assuming that the Company does not exercise its option to defer
payment of interest on the Series A Subordinated Debentures, and the Series A
QUIPS are not considered to be issued with OID, a Securityholder's adjusted
tax basis in the Series A QUIPS generally will be its initial purchase price.
If the Series A Subordinated Debentures are deemed to be issued with OID as a
result of the Company's deferral of any interest payment, a Securityholder's
tax basis in the Series A QUIPS generally will be its initial purchase price,
increased by OID previously includable in such Securityholder's gross income
to the date of disposition and decreased by distributions or other payments
received on the Series A QUIPS since and including the date of the first
Extension Period. Such gain or loss generally will be a capital gain or loss
(except to the extent of any accrued interest with respect to such
Securityholder's pro rata share of the Series A Subordinated Debentures
required to be included in income) and generally will be a long-term capital
gain or loss if the Series A QUIPS have been held for more than one year.
S-22
<PAGE>
Should the Company exercise its option to defer any payment of interest on
the Series A Subordinated Debentures, the Series A QUIPS may trade at a price
that does not accurately reflect the value of accrued but unpaid interest with
respect to the underlying Series A Subordinated Debentures. In the event of
such a deferral, a Securityholder that disposes of its Series A QUIPS between
record dates for payments of distributions thereon will be required to include
in income as ordinary income accrued but unpaid interest on the Series A
Subordinated Debentures to the date of disposition, and to add such amount to
its adjusted tax basis in its pro rata share of the underlying Series A
Subordinated Debentures deemed disposed of. To the extent the selling price is
less than the Securityholder's adjusted tax basis, such Securityholder will
recognize a capital loss. Subject to certain limited exceptions, capital
losses cannot be applied to offset ordinary income for United States federal
income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid and any OID accrued on the Series A QUIPS held
of record by United States Persons (other than corporations and other exempt
Securityholders) will be reported to the Internal Revenue Service. "Backup"
withholding at a rate of 31% will apply to payments of interest to non-exempt
United States Persons unless the Securityholder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
Regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions.
Payment of the proceeds from the disposition of Series A QUIPS to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
Any amounts withheld from a Securityholder under the backup withholding
rules will be allowed as a refund or a credit against such Securityholder's
United States federal income tax liability, provided the required information
is furnished to the Internal Revenue Service.
It is anticipated that income on the Series A QUIPS will be reported to
holders on Form 1099 and mailed to holders of the Series A QUIPS by January 31
following each calendar year.
POSSIBLE TAX LAW CHANGES
The Revenue Reconciliation Bill of 1996 (the "Bill"), the revenue portion of
President Clinton's budget proposal released on March 19, 1996, would, among
other things, generally deny interest deductions for interest on an instrument
issued by a corporation that has a maximum term of more than 20 years and that
is not shown as indebtedness on the separate balance sheet of the issuer or,
where the instrument is issued to a related party (other than a corporation),
where the holder or some other related party issues a related instrument that
is not shown as indebtedness on the issuer's consolidated balance sheet. The
above-described provision of the Bill was proposed to be effective generally
for instruments issued on or after December 7, 1995. If the provision were to
apply to the Series A Subordinated Debentures, the Company would be unable to
deduct interest on the Series A Subordinated Debentures. However, on March 29,
1996, the Chairmen of the Senate Finance and House Ways and Means Committees
issued a joint statement to the effect that it was their intention that the
effective date of the President's legislative proposals, if adopted, will be
no earlier than the date of appropriate Congressional action on the proposals.
S-23
<PAGE>
The above-described provision of the Bill was not enacted in the recently-
concluded session of Congress and, under current law, the Company is able to
deduct interest on the Series A Subordinated Debentures. There can be no
assurance that future legislation similar to the Bill, future regulations or
official administrative pronouncements or future judicial decisions will not
affect the ability of the Company to deduct interest on the Series A
Subordinated Debentures. Such a change could give rise to a Tax Event, which
may permit the Company, upon approval of the Federal Reserve if then required
under applicable capital guidelines or policies, to cause a redemption of the
Series A QUIPS, as described more fully in the accompanying Prospectus under
"Description of Preferred Securities --Redemption or Exchange -- Tax Event
Redemption or Distribution of Corresponding Junior Subordinated Debentures."
S-24
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Company and the Series A Issuer have agreed that the Series A Issuer will
sell to Goldman, Sachs & Co., [other Underwriters] (the "Underwriters"), and
the Underwriters have agreed to purchase from the Series A Issuer, the
respective number of Series A QUIPS set forth opposite their names below. In
the Underwriting Agreement, the several Underwriters have agreed, subject to
the terms and conditions set forth therein, to purchase all the Series A QUIPS
offered hereby if any of the Series A QUIPS are purchased. In the event of
default by an Underwriter, the Underwriting Agreement provides that, in
certain circumstances, the purchase commitments of the nondefaulting
Underwriters may be increased or the Underwriting Agreement may be terminated.
<TABLE>
<CAPTION>
NUMBER OF
SERIES A
UNDERWRITER QUIPS
----------- ---------
<S> <C>
Goldman, Sachs & Co. .........................................
----------
Total..................................................... 20,000,000
==========
</TABLE>
The Underwriters propose initially to offer the Series A QUIPS to the public
at the public offering price set forth on the cover of this Prospectus
Supplement and to certain dealers at such price less a concession not in
excess of $. per Series A QUIPS. The Underwriters may allow, and such
dealers may reallow, a discount not in excess of $. per Series A QUIPS to
certain other dealers. After the initial public offering, the public offering
price, concession and discount may be changed.
In view of the fact that the proceeds from the sale of the Series A QUIPS
will be used to purchase the Series A Subordinated Debentures issued by the
Company, the Underwriting Agreement provides that the Company will pay as
Underwriters' Compensation for the Underwriters' arranging the investment
therein of such proceeds an amount of $. per Series A QUIPS for the
accounts of the several Underwriters.
The Series A Issuer has granted the Underwriters an option exercisable for
30 days after the date of this Prospectus Supplement to purchase up to
3,000,000 additional Series A QUIPS to cover over-allotments, if any, at the
initial public offering price (with additional Underwriters' Compensation), as
set forth on the cover page of this Prospectus Supplement. If the Underwriters
exercise their over-allotment option, the Underwriters have severally agreed,
subject to certain conditions, to purchase approximately the same percentage
thereof that the number of Series A QUIPS to be purchased by each of them, as
shown on the foregoing table, bears to the number of Series A QUIPS offered
hereby.
The Company and the Series A Issuer have agreed that, during the period
beginning from the date of the Underwriting Agreement and continuing to and
including the earlier of (i) the termination of trading restrictions on the
Series A QUIPS, as determined by the Underwriters, and (ii) 30 days after the
closing date, they will not offer, sell, contract to sell or otherwise dispose
of any Preferred Securities, any other beneficial interests in the assets of
the Series A Issuer, or any preferred securities or any other securities of
the Series A Issuer or the Company which are substantially similar to the
Series A QUIPS, including any guarantee of such securities, or any securities
convertible into or exchangeable for or representing the right to receive
securities, preferred securities or any such substantially similar securities
of either the Series A Issuer or the Company, without the prior written
consent of the Underwriters, except for the Series A QUIPS offered in
connection with the offering.
S-25
<PAGE>
Prior to this offering, there has been no public market for the Series A
QUIPS. Application will be made to list the Series A QUIPS on the New York
Stock Exchange. Trading of the Series A QUIPS on the New York Stock Exchange
is expected to commence within a 30-day period after the initial delivery of
the Series A QUIPS. The Underwriters have advised the Company that they intend
to make a market in the Series A QUIPS prior to commencement of trading on the
New York Stock Exchange, but are not obligated to do so and may discontinue
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for the Series A QUIPS.
In order to meet one of the requirements for listing the Series A QUIPS on
the New York Stock Exchange, the Underwriters will undertake to sell lots of
100 or more Series A QUIPS to a minimum of 400 beneficial holders.
The Company and the Series A Issuer have agreed to indemnify the several
Underwriters against, or contribute to payments that the Underwriters may be
required to make in respect of, certain liabilities, including liabilities
under the Securities Act of 1933, as amended.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to the Company and its affiliates, for which such Underwriters or
their affiliates have received or will receive customary fees and commissions.
S-26
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY, THE ISSUER OR BY THE
UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS
OF THE COMPANY OR THE ISSUER SINCE THE DATE THEREOF. THIS PROSPECTUS SUPPLEMENT
AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER OR SOLICITATION BY ANYONE IN ANY
JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH
THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO SO OR TO
ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Prospectus Supplement
Risk Factors............................................................. S-5
Wells Fargo Capital I.................................................... S-11
Wells Fargo & Company.................................................... S-11
Consolidated Ratios of Earnings to Fixed Charges......................... S-12
Accounting Treatment..................................................... S-13
Certain Terms of Series A QUIPS.......................................... S-13
Certain Terms of Series A Subordinated Debentures........................ S-16
Certain Federal Income Tax Consequences.................................. S-21
Underwriting............................................................. S-25
Prospectus
Available Information.................................................... 3
Incorporation of Certain Documents by Reference.......................... 4
Wells Fargo & Company.................................................... 5
Regulatory Capital Benefits to Wells Fargo Company....................... 5
The Issuers.............................................................. 6
Use of Proceeds.......................................................... 7
Description of Junior Subordinated Debentures............................ 7
Description of Preferred Securities...................................... 17
Book-Entry Issuance...................................................... 28
Description of Guarantees................................................ 30
Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees.............................. 33
Plan of Distribution..................................................... 34
Validity of Securities................................................... 35
Experts.................................................................. 35
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
20,000,000
PREFERRED SECURITIES
WELLS FARGO CAPITAL I
% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES
SERIES A (QUIPS(SM)) FULLY AND
UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
WELLS FARGO & COMPANY
---------------
PROSPECTUS SUPPLEMENT
---------------
GOLDMAN, SACHS & CO.
REPRESENTATIVES OF THE UNDERWRITERS
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED DECEMBER 3, 1996
$750,000,000
WELLS FARGO & COMPANY
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
WELLS FARGO CAPITAL I
WELLS FARGO CAPITAL II
WELLS FARGO CAPITAL III
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY
GUARANTEED, AS DESCRIBED HEREIN, BY
WELLS FARGO & COMPANY
Wells Fargo & Company, a Delaware corporation (the "Company"), may from time
to time offer in one or more series or issuances its junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures"). The
Junior Subordinated Debentures will be unsecured and subordinate and junior in
right of payment to Senior Indebtedness (as defined in "Description of Junior
Subordinated Debentures -- Subordination") of the Company. If provided in an
accompanying Prospectus Supplement, the Company will have the right to defer
payments of interest on any series of Junior Subordinated Debentures by
extending the interest payment period thereon at any time or from time to time
for such number of consecutive interest payment periods (which shall not extend
beyond the Stated Maturity (as defined herein) of the Junior Subordinated
Debentures) with respect to each deferral period as may be specified in such
Prospectus Supplement (each, an "Extension Period"). See "Description of Junior
Subordinated Debentures -- Option to Defer Interest Payment Date".
Wells Fargo Capital I, Wells Fargo Capital II and Wells Fargo Capital III,
each a business trust created under the laws of the State of Delaware (each, an
"Issuer," and collectively, the "Issuers"), may severally offer, from time to
time, preferred securities (the "Preferred Securities") representing preferred
beneficial ownership interests in such Issuer. The Company will be the owner of
the common securities (the "Common Securities" and, together with the Preferred
Securities, the "Trust Securities") representing common beneficial ownership
interests in such Issuer. The payment of periodic cash distributions
("Distributions") with respect to the Preferred Securities of each Issuer and
payments on liquidation or redemption with respect to such Preferred
Securities, in each case out of funds held by such Issuer, are each irrevocably
guaranteed by the Company to the extent described herein (each, a "Guarantee").
See "Description of Guarantees". The obligations of the Company under each
Guarantee will be subordinate and junior in right of payment to all liabilities
of the Company, other than any liabilities which expressly by their terms are
made pari passu or subordinate to the obligations of the Company under the
Series A Guarantee. Concurrently with the issuance by an Issuer of its
Preferred Securities, such Issuer will invest the proceeds thereof and any
contributions made in respect of the Common Securities in a corresponding
series of the Company's Junior Subordinated Debentures (the "Corresponding
Junior Subordinated Debentures") with terms corresponding to the terms of that
Issuer's Preferred Securities (the "Related Preferred Securities"). The
Corresponding Junior Subordinated Debentures will be the sole assets of each
Issuer, and payments under the Corresponding Junior Subordinated Debentures and
the related Expense Agreement (as defined herein) will be the only revenue of
each Issuer. If provided in the accompanying Prospectus Supplement, the Company
may, upon receipt of approval of the Federal Reserve (if such approval is then
required), redeem the Corresponding Junior Subordinated Debentures (and cause
the redemption of the Trust Securities) or may terminate each Issuer and cause
the Corresponding Junior Subordinated Debentures to be distributed to the
holders of Preferred Securities in liquidation of their interests in such
Issuer. See "Description of Preferred Securities -- Liquidation Distribution
Upon Termination".
(continued on next page)
----------
THE PREFERRED SECURITIES AND THE JUNIOR SUBORDINATED DEBENTURES ARE NOT
DEPOSITS OR SAVINGS ACCOUNTS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------
The date of this Prospectus is December , 1996.
<PAGE>
(continued from previous page)
Holders of the Preferred Securities will be entitled to receive preferential
cumulative cash Distributions accumulating from the date of original issuance
and payable periodically as specified in an accompanying Prospectus
Supplement. If provided in an accompanying Prospectus Supplement, the Company
will have the right to defer payments of interest on any series of
Corresponding Junior Subordinated Debentures by extending the interest payment
period thereon at any time or from time to time for one or more Extension
Periods (which shall not extend beyond the Stated Maturity of the
Corresponding Junior Subordinated Debentures). If interest payments are so
deferred, Distributions on the Related Preferred Securities will also be
deferred and the Company will not be permitted, subject to certain exceptions
set forth herein, to declare or pay any cash distributions with respect to the
Company's capital stock or debt securities that rank pari passu with or junior
to the Corresponding Junior Subordinated Debentures. During an Extension
Period, Distributions will continue to accumulate (and the Preferred
Securities will accumulate additional Distributions thereon at the rate per
annum set forth in the related Prospectus Supplement). See "Description of
Preferred Securities -- Distributions".
Taken together, the Company's obligations under each series of Junior
Subordinated Debentures, the Indenture, the related Trust Agreement, the
related Expense Agreement and the related Guarantee (each, as defined herein),
in the aggregate, provide a full, irrevocable and unconditional guarantee on a
subordinated basis of payments of distributions and other amounts due on the
related series of Preferred Securities. See "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and the
Guarantees -- Full and Unconditional Guarantee".
The Junior Subordinated Debentures and Preferred Securities may be offered
in amounts, at prices and on terms to be determined at the time of offering;
provided, however, the aggregate initial public offering price of all Junior
Subordinated Debentures (other than Corresponding Junior Subordinated
Debentures) and Preferred Securities (including the Corresponding Junior
Subordinated Debentures) issued pursuant to the Registration Statement of
which this Prospectus forms a part shall not exceed $750,000,000. Certain
specific terms of the Junior Subordinated Debentures or Preferred Securities
in respect of which this Prospectus is being delivered will be described in an
accompanying Prospectus Supplement, including without limitation and where
applicable and to the extent not set forth herein, (a) in the case of Junior
Subordinated Debentures, the specific designation, aggregate principal amount,
denominations, Stated Maturity (including any provisions for the shortening or
extension thereof), interest payment dates, interest rate (which may be fixed
or variable) or method of calculating interest, if any, applicable Extension
Period or interest deferral terms, if any, place or places where principal,
premium, if any, and interest, if any, will be payable, any terms of
redemption, any sinking fund provisions, terms for any conversion or exchange
into other securities, initial offering or purchase price, methods of
distribution and any other special terms, and (b) in the case of Preferred
Securities, the identity of the Issuer, specific title, aggregate amount,
stated liquidation preference, number of securities, Distribution rate or
method of calculating such rate, applicable Extension Period or Distribution
deferral terms, if any, place or places where Distributions will be payable,
any terms of redemption, exchange, initial offering or purchase price, methods
of distribution and any other special terms.
The Prospectus Supplement also will contain information, as applicable,
about certain United States Federal income tax consequences relating to the
Junior Subordinated Debentures or Preferred Securities.
The Junior Subordinated Debentures and Preferred Securities may be sold to
or through underwriters, through dealers, remarketing firms or agents or
directly to purchasers. See "Plan of Distribution". The names of any
underwriters, dealers, remarketing firms or agents involved in the sale of
Junior Subordinated Debentures or Preferred Securities in respect of which
this Prospectus is being delivered and any applicable fee, commission or
discount arrangements with them will be set forth in a Prospectus Supplement.
The Prospectus Supplement will state whether the Junior Subordinated
Debentures or Preferred Securities will be listed on any national securities
exchange or automated quotation system. If the Junior Subordinated Debentures
or Preferred Securities are not listed on any national securities exchange or
automated quotation system, there can be no assurance that there will be a
secondary market for the Junior Subordinated Debentures or Preferred
Securities.
2
<PAGE>
This Prospectus may not be used to consummate sales of Junior Subordinated
Debentures or Preferred Securities unless accompanied by a Prospectus
Supplement.
No dealer, salesperson or other person has been authorized to give any
information or make any representations, other than those contained in this
Prospectus and the applicable Prospectus Supplement, and if given or made such
information or representations must not be relied upon as having been
authorized by the Company or any agent, underwriter or dealer. This Prospectus
and the applicable Prospectus Supplement do not constitute an offer of any
securities other than those to which they relate, or an offer to sell or a
solicitation of an offer to buy those to which they relate, in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. The delivery of this Prospectus and/or the
applicable Prospectus Supplement at any time does not imply that the
information herein or therein is correct as of any time subsequent to its
date.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the Commission located at 7 World
Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500
West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such
material can also be obtained at prescribed rates by writing to the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549. Such material may also be accessed electronically by means of the
Commission's home page on the Internet at http://www.sec.gov. In addition,
such reports, proxy statements and other information can be inspected at the
offices of the New York and Pacific Stock Exchanges on which certain of the
Company's securities are listed.
The Company and the Issuers have filed with the Commission a Registration
Statement on Form S-3 (together with all amendments and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the securities offered hereby. This
Prospectus does not contain all the information set forth in the Registration
Statement, certain portions of which have been omitted as permitted by the
rules and regulations of the Commission. For further information with respect
to the Company and the securities offered hereby, reference is made to the
Registration Statement and the exhibits and the financial statements, notes
and schedules filed as a part thereof or incorporated by reference therein,
which may be inspected at the public reference facilities of the Commission,
at the addresses set forth above or through the Commission's Internet home
page. Statements made in this Prospectus concerning the contents of any
documents referred to herein are not necessarily complete, and in each
instance are qualified in all respects by reference to the copy of such
document filed as an exhibit to the Registration Statement.
No separate financial statements of any Issuer have been included herein.
The Company and the Issuers do not consider that such financial statements
would be material to holders of the Preferred Securities because each Issuer
is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the Corresponding Junior
Subordinated Debentures of the Company and issuing the Trust Securities. See
"The Issuers", "Description of Preferred Securities", "Description of Junior
Subordinated Debentures -- Corresponding Junior Subordinated Debentures" and
"Description of Guarantees". In addition, the Company does not expect that any
of the Issuers will be filing reports under the Exchange Act with the
Commission.
3
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following reports filed with the Commission pursuant to Section 13 of the Act:
(i) the Company's Annual Report on Form 10-K for the year ended December 31,
1995, (ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1996; (iii) the Company's Current Reports
on Form 8-K filed on January 16, January 24, January 31, February 29, April 1,
April 5, April 10, April 16, July 16, August 9, September 20, September 23,
October 15 and November 15, 1996; and (iv) the consolidated financial
statements of First Interstate Bancorp ("First Interstate") as of December 31,
1995 and 1994 and for each of the years in the three-year period ended
December 31, 1995, as contained in First Interstate's Annual Report on Form
10-K for the year ended December 31, 1995. All documents filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Act subsequent to the
date of this Prospectus and prior to the termination of the offering of the
Offered Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents.
Any person receiving a copy of this Prospectus may obtain without charge,
upon oral or written request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents unless such
exhibits are specifically incorporated by reference into the information that
the Prospectus incorporates. Requests should be directed to Wells Fargo &
Company, Investor/Public Relations, MAC #0163-029, 343 Sansome Street, San
Francisco, California 94163, telephone (415) 396-0560.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
4
<PAGE>
WELLS FARGO & COMPANY
Wells Fargo & Company is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended. On April 1, 1996, the Company
completed its acquisition of First Interstate Bancorp ("First Interstate"). On
the basis of assets as of September 30, 1996, the Company was the eighth
largest bank holding company in the United States. As of September 30, 1996,
the Company had loans of $69.2 billion, total assets of $109.2 billion, total
deposits of $83.7 billion and stockholders' equity of $14.9 billion. Its
principal subsidiary is Wells Fargo Bank, National Association (the "Bank").
The Bank is primarily engaged in retail, commercial and corporate banking,
real estate lending and trust and investment services.
The Company is a legal entity separate and distinct from the Bank and its
other affiliates. There are various legal limitations on the extent to which
the Bank may extend credit, pay dividends or otherwise supply funds to the
Company or various of its affiliates. The executive offices of the Company are
located at 420 Montgomery Street, San Francisco, California 94163. The
Company's telephone number is (415) 477-1000.
Since the Company is a holding company, the rights of the Company to
participate in any distribution of assets of any subsidiary upon its
liquidation or reorganization or otherwise (and thus the ability of holders of
the Junior Subordinated Debentures to benefit indirectly from such
distribution) are subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company may itself be a creditor of that
subsidiary. Claims on the Company's subsidiaries by creditors other than the
Company include long-term debt and substantial obligations in respect of
federal funds purchased, securities sold under repurchase agreements and
certain other short-term borrowings, as well as deposit liabilities.
REGULATORY CAPITAL BENEFITS TO WELLS FARGO & COMPANY
The Company is required by the Board of Governors of the Federal Reserve
System ("Federal Reserve Board") to maintain certain levels of capital for
bank regulatory purposes. For these purposes, different capital instruments
are classified as either Tier 1 or Tier 2 capital, with Tier 1 being the more
favorable classification. The Federal Reserve Board has recently stated that
long-term cumulative preferred instruments issued by a special-purpose
subsidiary of a bank holding company and structured in the manner in which the
Preferred Securities are structured normally will be accorded Tier 1 capital
treatment. The Company believes that the Preferred Securities will qualify for
Tier 1 capital treatment. Such treatment, together with the Company's ability
to deduct, for income tax purposes, the interest payable on the Junior
Subordinated Debentures, will provide the Company with a more cost-effective
means of obtaining capital for regulatory purposes than if the Company itself
were to issue additional preferred stock.
As of the date of this Prospectus, the Company had five series of Preferred
Stock outstanding which constitute Tier 1 Capital, consisting of 1,500,000
shares of Adjustable Rate Cumulative Preferred Stock, Series B ("Adjustable
Rate Preferred Stock"), 477,500 shares of 9% Preferred Stock, Series C ("9%
Preferred Stock") represented by 9,550,000 Depositary Shares each representing
a one-twentieth interest in a share of 9% Preferred Stock, 350,000 shares of 8
7/8% Preferred Stock, Series D (the "8 7/8% Preferred Stock" and together with
the 9% Preferred Stock, the "Fixed Rate Preferred Stock") represented by
7,000,000 Depositary Shares each representing a one-twentieth interest in a
share of 8 7/8% Preferred Stock, 750,000 shares of 9% Preferred Stock, Series
G ("9% Series G Preferred Stock") represented by 6,000,000 Depositary Shares
each representing a one-eighth interest in a share of 9% Series G Preferred
Stock and 4,000,000 shares of Fixed/Adjustable Rate Noncumulative Preferred
Stock, Series H (the "Fixed/Adjustable Rate Preferred Stock"). The Adjustable
Rate Preferred Stock has a liquidation preference of $50, the Fixed Rate
Preferred Stock has a liquidation preference of $500 per share or $25 per
Depositary Share, the 9% Series G Preferred Stock has a liquidation preference
of $200 per share or $25 per Depositary share and the Fixed/Adjustable Rate
Preferred Stock has a liquidation preference of $50 per share. The 9%
Preferred Stock has been called for redemption by the Company on December 31,
1996. The Company may call the other series of Preferred Stock for redemption
on dates from the date of this Prospectus to October 1, 2001.
5
<PAGE>
THE ISSUERS
Each Issuer is a statutory business trust created under Delaware law
pursuant to (i) a trust agreement executed by the Company, as Depositor of the
Issuer, and an initial Delaware trustee and (ii) the filing of a certificate
of trust and restated certificate of trust with the Delaware Secretary of
State. Each trust agreement will be amended and restated in its entirety
(each, as so amended and restated, a "Trust Agreement") substantially in the
form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each Trust Agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Each Issuer exists for the exclusive purposes of (i) issuing
and selling its Trust Securities, (ii) using the proceeds from the sale of
such Trust Securities to acquire a corresponding series of Corresponding
Junior Subordinated Debentures issued by the Company, and (iii) engaging in
only those other activities necessary, convenient or incidental thereto.
Accordingly, the Corresponding Junior Subordinated Debentures and the right to
reimbursement of operating expenses under the related Expense Agreement will
be the sole assets of each Issuer, and payments under the Corresponding Junior
Subordinated Debentures and the related Expense Agreement will be the sole
revenue of each Issuer.
All of the Common Securities of each Issuer will be owned by the Company.
The Common Securities of an Issuer will rank pari passu, and payments will be
made thereon pro rata, with the Preferred Securities of such Issuer, except
that upon the occurrence and continuance of an event of default under a Trust
Agreement resulting from a Debenture Event of Default (as defined herein), the
rights of the Company as holder of the Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption or otherwise will
be subordinated to the rights of the holders of the Preferred Securities of
such Issuer. See "Description of Preferred Securities -- Subordination of
Common Securities". The Company will acquire Common Securities in an aggregate
liquidation amount equal to not less than 3% of the total capital of each
Issuer.
Unless otherwise specified in the applicable Prospectus Supplement, each
Issuer has a term of approximately 55 years, but may terminate earlier as
provided in the applicable Trust Agreement. Each Issuer's business and affairs
are conducted by its trustees, each appointed by the Company as holder of the
Common Securities. Under the Trust Agreement, the trustees for each Issuer
will be the First National Bank of Chicago, as the Property Trustee (the
"Property Trustee"), First Chicago Delaware Inc. as the Delaware Trustee (the
"Delaware Trustee"), and three individual trustees (the "Administrative
Trustees") who are employees or officers of or affiliated with the Company
(collectively, the "Issuer Trustees"). The Property Trustee will act as sole
indenture trustee under each Trust Agreement for purposes of compliance with
the Trust Indenture Act. The First National Bank of Chicago will also act as
trustee under the Guarantees and the Indenture (each as defined herein). See
"Description of Guarantees" and "Description of Junior Subordinated
Debentures". The holder of the Common Securities of an Issuer, or the holders
of a majority in liquidation preference of the Related Preferred Securities if
a Debenture Event of Default under the Trust Agreement for such Issuer has
occurred and is continuing, will be entitled to appoint, remove or replace the
Property Trustee and/or the Delaware Trustee for such Issuer. In no event will
the holders of the Preferred Securities have the right to vote to appoint,
remove or replace the Administrative Trustees; such voting rights are vested
exclusively in the holder of the Common Securities. The duties and obligations
of each Issuer Trustee are governed by the applicable Trust Agreement. The
Company will pay all fees and expenses related to each Issuer and the offering
of the Preferred Securities and will pay, directly or indirectly, all ongoing
costs, expenses and liabilities of each Issuer.
Pursuant to the Expense Agreement entered into by the Company under each
Trust Agreement (the "Expense Agreement"), the Company will irrevocably and
unconditionally guarantee to each person or entity to whom the Issuer becomes
indebted or liable, the full payment of any costs, expenses or liabilities of
the Issuer, other than obligations of the Issuer to pay to the holders of any
Preferred Securities or other similar interests in the Issuer the amounts due
such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be.
The principal executive office of each Issuer is 420 Montgomery Street, San
Francisco, California 94163, and its telephone number is (415) 477-1000.
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USE OF PROCEEDS
All of the proceeds from the sale of Preferred Securities will be invested
by the Issuer in Junior Subordinated Debentures. The net proceeds from the
sale of the Junior Subordinated Debentures will be used by the Company for
general corporate purposes. Specific allocations of the proceeds to such
purposes have not been determined. The net proceeds may be used to reduce
outstanding commercial paper and other debt of the Company. Based upon the
anticipated future funding requirements of the Company and its subsidiaries,
the Company expects that it will, from time to time, engage in additional
financings of a character and in amounts to be determined and that its
commercial paper borrowings and other short-term debt may be increased above
the level prevailing after the initial use of proceeds.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or more series
under an indenture dated as of November 27, 1996, as supplemented from time to
time (as so supplemented, the "Indenture") between the Company and The First
National Bank of Chicago, as Trustee (the "Debenture Trustee"). This summary
of certain terms and provisions of the Junior Subordinated Debentures,
Corresponding Junior Subordinated Debentures and the Indenture does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, the Indenture, which is filed as an exhibit to the Registration
Statement of which this prospectus forms a part, and the Trust Indenture Act.
The Indenture is qualified under the Trust Indenture Act. Whenever particular
defined terms of the Indenture (as supplemented or amended from time to time)
are referred to herein or in a Prospectus Supplement, such defined terms are
incorporated herein or therein by reference.
GENERAL
The Indenture does not limit the amount of debt securities which can be
issued thereunder and provides that debt securities of any series may be
issued thereunder up to the aggregate principal amount which may be authorized
from time to time by the Company. The Indenture does not limit the amount of
other indebtedness or securities which may be issued by the Company. The
Junior Subordinated Debentures may be issued at various times with different
maturity dates and different principal repayment provisions, may bear interest
at different rates, may be payable in currencies other than United States
dollars, in composite currencies or in amounts determined by reference to an
index and may otherwise vary, all as provided in the Indenture.
The Prospectus Supplement will set forth the following specific terms
regarding the series of Junior Subordinated Debentures offered thereby: (i)
the designation and aggregate principal amount of Junior Subordinated
Debentures of such series; (ii) the percentage of their principal amount at
which such Junior Subordinated Debentures will be issued; (iii) the date or
dates (if any) on which such Junior Subordinated Debentures will mature; (iv)
the rate per annum or the method of determining the rate or rates per annum,
if any, at which such Junior Subordinated Debentures will bear interest; (v)
the dates from and on which such interest, if any, will accrue and be payable
and the designated record dates for such interest payments; (vi) the place or
places where the Junior Subordinated Debentures may be presented for payment,
if other than as described under "-- Payment and Paying Agents"; (vii) any
redemption terms; (viii) any conversion or exchange provisions; (ix)
provisions for issuance of global securities; (x) the terms and conditions of
any obligation or right of the Company or a holder to convert or exchange the
Junior Subordinated Debentures into Preferred Securities; (xi) the form of
Trust Agreement and Guarantee Agreement, if applicable; (xii) the relative
degree, if any, to which such Junior Subordinated Debentures of the series
shall be senior to or be subordinated to other series of such Junior
Subordinated Debentures or other indebtedness of the Company in right of
payment, whether such other series of Junior Subordinated Debentures or other
indebtedness are outstanding or not; and (xiii) any other terms of the Junior
Subordinated Debentures not inconsistent with the provisions of the Indenture.
If so indicated in the applicable Prospectus Supplement, the terms of the
Junior Subordinated Debentures offered thereby may differ from those set forth
herein.
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Some of the Junior Subordinated Debentures may be issued as discounted
Junior Subordinated Debentures (bearing no interest or interest at a rate
which at the time of issuance is below market rates) to be sold at a discount
below their stated principal amount. Federal income tax consequences and other
special considerations applicable to such discounted Junior Subordinated
Debentures will be described in the Prospectus Supplement relating thereto.
Interest on the Junior Subordinated Debentures of any series will be payable
to the persons in whose names the Junior Subordinated Debentures are
registered at the close of business on the record date designated for an
interest payment date. The Junior Subordinated Debentures may be presented for
the payment of principal and interest, if any, transfer and exchange at the
offices or agencies of the appropriate Securities Registrar maintained for
such purposes in Chicago and New York City. Payment of any installment of
interest may be made at the option of the Company by check, mailed to the
address of the person entitled thereto as it appears on the Register of the
Junior Subordinated Debentures of such series. The initial Securities
Registrar will be The First National Bank of Chicago. The Junior Subordinated
Debentures will be issued in fully registered form, without coupons, in
denominations of $25 unless different authorized denominations are stated in
the Prospectus Supplement. No service charge will be made for any exchange or
registration of transfer of a Junior Subordinated Debenture, but the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge. The Indenture provides that if a series of Junior Subordinated
Debentures is denominated in a currency other than United States dollars or in
a composite currency, in the absence of a contrary provision in the Junior
Subordinated Debentures any action or distribution under the Indenture will be
based on the relative amount of United States dollars that could be obtained
on such reasonable basis of exchange on such date as is specified by the
Company to the Debenture Trustee.
In the event of any redemption, neither the Company nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of a series during a period beginning at the
opening of business 15 days before the day of selection for redemption of
Junior Subordinated Debentures of that series and ending at the close of
business on the day of mailing of the relevant notice of redemption or
(ii) transfer or exchange any Junior Subordinated Debentures so selected for
redemption, except, in the case of any Junior Subordinated Debentures being
redeemed in part, any portion thereof not to be redeemed.
All of the Junior Subordinated Debentures will be unsecured general
obligations of the Company. Since the Company is a holding company, the rights
of the Company to participate in any distribution of assets of any subsidiary
upon its liquidation or reorganization or otherwise (and thus the ability of
holders of the Junior Subordinated Debentures to benefit indirectly from such
distribution) are subject to the prior claims of creditors of that subsidiary,
except to the extent that the Company may itself be a creditor of that
subsidiary. Claims on the Company's subsidiaries by creditors other than the
Company include long-term debt and substantial obligations in respect of
federal funds purchased, securities sold under repurchase agreements and
certain other short-term borrowings, as well as deposit liabilities.
Accordingly, the Junior Subordinated Debentures will be effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries, and holders of the Junior Subordinated Debentures should look
only to the assets of the Company for payments on the Junior Subordinated
Debentures. Unless otherwise set forth in the applicable Prospectus
Supplement, neither the Indenture nor the Junior Subordinated Debentures
contain provisions which would afford holders of the Junior Subordinated
Debentures protection in the event of a takeover, recapitalization or similar
restructuring involving the Company which could adversely affect the Junior
Subordinated Debentures.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in whole or in
part in the form of one or more global securities ("Global Security") that
will be deposited with, or on behalf of, a depositary identified in the
Prospectus Supplement relating to such series. Global Securities will be
issued in registered form and in either temporary or definitive form. Unless
and until it is exchanged in whole or in part for Junior Subordinated
Debentures in definitive form, a Global Security may not be transferred except
as a whole by the depositary for such Global Security to a nominee of such
depositary or by a nominee of such depositary to such depositary or
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another nominee of such depositary or by such depositary or any such nominee
to a successor of such depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any Junior
Subordinated Debentures of a series will be described in the Prospectus
Supplement relating to such series. The Company anticipates that the following
provisions will apply to all depositary arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Junior Subordinated Debentures represented
by such Global Security to the accounts of institutions that have accounts
with such depositary ("Participants"). The accounts to be credited shall be
designated by the underwriters of such Junior Subordinated Debentures, by
certain agents of the Company or by the Company, if such Junior Subordinated
Debentures are offered and sold directly by the Company. Ownership of
beneficial interests in a Global Security will be limited to Participants or
persons that may hold interests through Participants. Ownership of beneficial
interests in such Global Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the depositary
with respect to Participants' interests in such Global Security or by
Participants or by persons that hold through Participants with respect to
beneficial owners' interests. The laws of some states require that certain
purchasers of securities take physical delivery of such securities in
definitive form. Such ownership limits and such laws may impair the ability to
transfer beneficial interests in a Global Security.
So long as the depositary for a Global Security, or its nominee, is the
holder of such Global Security, such depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Junior Subordinated
Debenture represented by such Global Security for all purposes under the
Indenture governing such Junior Subordinated Debentures. Except as set forth
below, owners of beneficial interests in a Global Security will not be
entitled to have Junior Subordinated Debentures of a series represented by
such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Junior Subordinated Debentures of
such series in definitive form and will not be considered the owners or
holders thereof under the Indenture governing such Junior Subordinated
Debentures.
Principal and interest payments on Junior Subordinated Debentures registered
in the name of or held by a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered owner of the
Global Security representing such Junior Subordinated Debentures. The Company
expects that the depositary for Junior Subordinated Debentures of a series,
upon receipt of any payment of principal or interest in respect of a Global
Security, will immediately credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of such
depositary. The Company also expects that payments by Participants or persons
who hold interests through Participants to owners of beneficial interests in
such Global Security held through such Participants or persons will be
governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such
Participants or persons. None of the Company, the Debenture Trustee, any
paying agent or any registrar for such Junior Subordinated Debentures will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Security for such Junior Subordinated Debentures or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
If a depositary for Junior Subordinated Debentures of a series is at any
time unwilling or unable to continue as depositary and a successor depositary
is not appointed by the Company within 90 days, the Company will issue Junior
Subordinated Debentures of such series in definitive form in exchange for the
Global Security or Securities representing the Junior Subordinated Debentures
of such series. In addition, the Company may at any time and in its sole
discretion determine not to have any Junior Subordinated Debentures of a
series represented by one or more Global Securities and, in such event, will
issue Junior Subordinated Debentures of such series in
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definitive form in exchange for the Global Security or Securities representing
such Junior Subordinated Debentures.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and any interest on Junior Subordinated
Debentures will be made at the offices of The First National Bank of Chicago,
as paying agent in the City of Chicago or New York, or at the offices of such
other paying agent or paying agents as the Company may designate from time to
time in the applicable Prospectus Supplement, except that at the option of the
Company payment of any interest may be made (i), except in the case of Global
Junior Subordinated Debentures, by check mailed to the address of the Person
entitled thereto as such address shall appear in the Securities Register or
(ii) by transfer to an account maintained by the Person entitled thereto as
specified in the Securities Register, provided that proper transfer
instructions have been received by the Regular Record Date. Unless otherwise
indicated in the applicable Prospectus Supplement, payment of any interest on
Junior Subordinated Debentures will be made to the Person in whose name such
Junior Subordinated Debenture is registered at the close of business on the
Regular Record Date for such interest, except in the case of Defaulted
Interest. The Company may at any time designate additional paying agents or
rescind the designation of any paying agent; however the Company will at all
times be required to maintain a paying agent in Chicago or New York for each
series of Junior Subordinated Debentures.
Any monies deposited with the Debenture Trustee or any Paying Agent, or then
held by the Company in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and
remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of the Company,
be repaid to the Company and the holder of such Junior Subordinated Debenture
shall thereafter look, as a general unsecured creditor, only to the Company
for payment thereof.
OPTION TO DEFER INTEREST PAYMENTS
The Company shall have the right at any time and from time to time during
the term of any series of Junior Subordinated Debentures to defer payment of
interest for such number of consecutive interest payment periods as may be
specified in the applicable Prospectus Supplement (each, an "Extension
Period") on the terms described in the applicable Prospectus Supplement,
provided that such Extension Period may not extend beyond the Stated Maturity
of such series of Junior Subordinated Debentures. Certain United States
Federal income tax consequences and special considerations applicable to any
such Junior Subordinated Debentures will be described in the applicable
Prospectus Supplement.
REDEMPTION
Junior Subordinated Debentures will not be subject to any sinking fund
unless otherwise indicated in the applicable Prospectus Supplement.
The Company may, at its option and subject to receipt of prior approval by
the Board of Governors of the Federal Reserve System (the "Federal Reserve")
if then required under applicable capital guidelines or policies, redeem the
Junior Subordinated Debentures of any series in whole at any time or in part
from time to time, unless otherwise indicated in the applicable Prospectus
Supplement. If the Junior Subordinated Debentures of any series are so
redeemable only on or after a specified date or upon the satisfaction of
additional conditions, the applicable Prospectus Supplement will specify such
date or describe such conditions. Junior Subordinated Debentures in
denominations larger than $25 may be redeemed in part but only in integral
multiples of $25. The redemption price for any Junior Subordinated Debenture
so redeemed shall equal any accrued and unpaid interest thereon to the
redemption date, plus the principal amount thereof, unless otherwise indicated
in the applicable Prospectus Supplement. The Company may not redeem a series
of Corresponding Junior Subordinated Debentures in part unless all accrued and
unpaid interest has been paid in full on all outstanding Corresponding Junior
Subordinated Debentures of such series for all interest periods terminating on
or prior to the Redemption Date.
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If a Tax Event, Capital Treatment Event or Investment Company Event (as
defined below) in respect of a series of Junior Subordinated Debentures shall
occur and be continuing, the Company may, at its option and subject to receipt
of prior approval by the Federal Reserve if then required under applicable
capital guidelines or policies, redeem such series of Junior Subordinated
Debentures in whole (but not in part) at any time within 90 days of the
occurrence of such Tax Event or Investment Company Event, at a redemption
price equal to 100% of the principal amount of such Junior Subordinated
Debentures then outstanding plus accrued and unpaid interest to the date fixed
for redemption unless otherwise indicated in the applicable Prospectus
Supplement.
"Tax Event" means the receipt by the applicable Issuer of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance
of the applicable series of Junior Subordinated Debentures under the
Indenture, there is more than an insubstantial risk that (i) the Issuer is, or
will be within 90 days of the date of such opinion, subject to United States
Federal income tax with respect to income received or accrued on the Junior
Subordinated Debentures, (ii) interest payable by the Company on such series
of Junior Subordinated Debentures is not, or within 90 days of the date of
such opinion will not be, deductible by the Company, in whole or in part, for
United States Federal income tax purposes, or (iii) the Issuer is, or will be
within 90 days of the date of such opinion, subject to more than a de minimis
amount of other taxes, duties or other governmental charges.
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of the occurrence of any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision thereof or therein, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on
or after the date of issuance of the applicable Preferred Securities, there is
more than an insubstantial risk that the Company will not be entitled to treat
an amount equal to the aggregate Liquidation Amount of the Preferred
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes
of the capital adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Company.
"Investment Company Event" means the receipt by the applicable Issuer of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority (a "Change in 1940 Act
Law"), the applicable Issuer is or will be considered an "investment company"
that is required to be registered under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), which Change in 1940 Act Law becomes
effective on or after the date of original issuance of the series of Preferred
Securities issued by the Issuer.
Notice of any redemption will be mailed at least 15 days but not more than
60 days before the redemption date to each Holder of Junior Subordinated
Debentures to be redeemed at its registered address. Unless the Company
defaults in payment of the redemption price, on and after the redemption date
interest ceases to accrue on such Junior Subordinated Debentures or portions
thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
The Company will also covenant, as to each series of Junior Subordinated
Debentures, that it will not, and will not permit any subsidiary of the
Company to, (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of
the Company (including other Junior Subordinated Debentures) that rank pari
passu with or junior in interest to the Junior Subordinated Debentures or make
any guarantee payments with respect to any guarantee by the
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Company of the debt securities of any subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the Junior
Subordinated Debentures (other than (a) dividends or distributions in common
stock of the Company, (b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under any Guarantee with respect to the series
of Related Preferred Securities and (d) purchases of common stock related to
the issuance of common stock or rights under any of the Company's benefit plans
for its directors, officers or employees), if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that (a) with the
giving of notice or the lapse of time, or both, would constitute an "Event of
Default" under the Indenture with respect to the Junior Subordinated Debentures
of such series and (b) in respect of which the Company shall not have taken
reasonable steps to cure, (ii) if such Junior Subordinated Debentures are held
by an Issuer of a series of Related Preferred Securities, the Company shall be
in default with respect to its payment of any obligations under the Guarantee
relating to such Related Preferred Securities or (iii) the Company shall have
given notice of its election of an Extension Period as provided in the
Indenture with respect to the Junior Subordinated Debentures of such series and
shall not have rescinded such notice, or such Extension Period, or any
extension thereof, shall be continuing.
MODIFICATION OF INDENTURE
From time to time, the Company and the Debenture Trustee may, without the
consent of the holders of any series of Junior Subordinated Debentures, amend,
waive or supplement the Indenture for specified purposes, including, among
other things, curing ambiguities, defects or inconsistencies (provided that any
such action does not materially adversely affect the interest of the holders of
any series of Junior Subordinated Debentures or, in the case of Corresponding
Junior Subordinated Debentures, the holders of Related Preferred Securities so
long as they remain outstanding) and qualifying, or maintaining the
qualification of, the Indenture under the Trust Indenture Act. In addition, the
Company and the Debenture Trustee may execute, without the consent of any
holder of Junior Subordinated Debentures, any supplemental indenture for the
purpose of creating any new series of Junior Subordinated Debentures.
The Indenture contains a provision permitting the Company and the Debenture
Trustee, with the consent of the holders of not less than a majority in
principal amount of the Junior Subordinated Debentures of all series then
outstanding under such Indenture affected by such supplemental indenture
(voting as one class), to execute supplemental indentures adding any provisions
to or changing or eliminating any of the provisions of such Indenture or
modifying the rights of the holders of Junior Subordinated Debentures of each
such series, provided that no such supplemental indenture may, without the
consent of the holder of each Junior Subordinated Debenture so affected, (i)
change the fixed maturity of any Junior Subordinated Debentures, or reduce the
rate or extend the time of payment of any interest thereon or on any overdue
principal amount, or reduce the principal amount thereof, or reduce any amount
payable upon any redemption thereof, or change the currency of payment of
principal or of any interest thereon or on any overdue principal amount, (ii)
reduce the aforesaid percentage of Junior Subordinated Debentures, the holders
of which are required to consent to any such supplemental indenture, (iii)
modify certain provisions of the Indenture relating to modification or waiver
except to increase the required percentage or (iv) modify the provisions with
respect to the subordination of outstanding Junior Subordinated Debentures of
any series in a manner adverse to the holders thereof; provided further that,
in the case of Corresponding Junior Subordinated Debentures, so long as any of
the Related Preferred Securities remain outstanding, no such modification may
be made that adversely affects the holders of such Preferred Securities in any
material respect, and no termination of the Indenture may occur, and no waiver
of any Event of Default or compliance with any covenant under the Indenture may
be effective, without the prior consent of the holders of at least a majority
of the aggregate liquidation preference of such Related Preferred Securities
unless and until the principal of the Corresponding Junior Subordinated
Debentures and all accrued and unpaid interest thereon have been paid in full
and certain other conditions are satisfied.
The Indenture provides that the Company may omit in any particular instance
to comply with any covenant or condition specifically contained in such
Indenture for the benefit of one or more series of Junior Subordinated
Debentures if before the time for such compliance the holders of a majority in
principal amount of the Junior
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Subordinated Debentures of all series then outstanding under such Indenture
affected by the omission (voting as one class) waive such compliance in such
instance, but such waiver shall not extend to or affect such covenant or
condition except to the extent so expressly waived.
DEBENTURE EVENTS OF DEFAULT
A Debenture Event of Default with respect to any series of Junior
Subordinated Debentures is defined in the Indenture as being: (a) default for
30 days in payment of any installment of interest on Junior Subordinated
Debentures of such series (subject to the deferral of any due date in the case
of an Extension Period); (b) default in payment of any principal or premium, if
any, on Junior Subordinated Debentures of such series; (c) default by the
Company in performance in any material respect of any of the covenants or
agreements in the Indenture specifically contained therein for the benefit of
the Junior Subordinated Debentures of such series which shall not have been
remedied for a period of 90 days after written notice to the Company by the
Debenture Trustee or to the Company and the Debenture Trustee by the holders of
not less than 25% in principal amount of the Junior Subordinated Debentures of
such series and all other series so benefited (all such series voting as one
class) then outstanding; or (d) certain events of bankruptcy, insolvency or
reorganization of the Company or the Bank. No Debenture Event of Default
described in clause (a), (b) or (c) above with respect to a particular series
of Junior Subordinated Debentures necessarily constitutes a Debenture Event of
Default with respect to any other series of Junior Subordinated Debentures.
The Indenture provides that if a Debenture Event of Default under clause (a),
(b) or (c) above shall have occurred and be continuing (but, in the case of
clause (c), only if the Debenture Event of Default is with respect to less than
all series of Junior Subordinated Debentures then outstanding under the
Indenture), either the Debenture Trustee or the holders of not less than 25% in
principal amount of the then outstanding Junior Subordinated Debentures of the
series as to which the Debenture Event of Default has occurred (each such
series voting as a separate class in the case of a Debenture Event of Default
under clause (a) or (b), and all such series voting as one class in the case of
a Debenture Event of Default under clause (c)) may declare the principal (or
portion thereof specified in the terms of such series) of all the Junior
Subordinated Debentures of such series, or of all such series in the case of a
Debenture Event of Default under clause (c) above, in each case together with
any accrued interest, to be due and payable immediately. In the case of
Corresponding Junior Subordinated Debentures, should the Debenture Trustee or
holders of such Corresponding Junior Subordinated Debentures fail to make such
declaration, the holders of at least 25% in aggregate liquidation preference of
the Related Preferred Securities shall have such right. The Indenture also
provides that if a Debenture Event of Default under clause (c) or (d) above
shall have occurred and be continuing (but, in the case of clause (c), only if
the Debenture Event of Default is with respect to all Junior Subordinated
Debentures then outstanding under the Indenture), either the Debenture Trustee
or the holders of not less than 25% in principal amount of all the Junior
Subordinated Debentures then outstanding (voting as one class) may declare the
principal (or portion thereof specified in the terms of any series) of all the
Junior Subordinated Debentures, together with any accrued interest, to be due
and payable immediately. In the case of Corresponding Junior Subordinated
Debentures, should the Debenture Trustee or such holders of such Corresponding
Junior Subordinated Debentures fail to make such declaration, the holders of at
least 25% in aggregate liquidation preference of the Related Preferred
Securities shall have such right. Upon certain conditions, (including a
declaration caused by a default in the payment of principal or interest, the
payment for which has subsequently been provided) such declaration may be
annulled by the holders of a majority in principal amount of the Junior
Subordinated Debentures of the series then outstanding as were entitled to
declare such default (such series or all series voting as one class, if more
than one series is so entitled). In the case of Corresponding Junior
Subordinated Debentures, should the holders of such Corresponding Junior
Subordinated Debentures fail to annul such declaration and waive such default,
the holders of a majority in aggregate liquidation preference of the Related
Preferred Securities shall have such right. In addition, past defaults may be
waived by the holders of a majority in principal amount of the Junior
Subordinated Debentures of all series then outstanding (all series voting as
one class), except a default in the payment of principal of or interest on the
Junior Subordinated Debentures or in respect of a covenant or provision of the
Indenture which cannot be modified or amended without the consent of the holder
of each Junior Subordinated Debenture so affected. In the case of Corresponding
Junior Subordinated Debentures, should the holders of such Corresponding
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Junior Subordinated Debentures fail to waive such default, the holders of a
majority in aggregate liquidation preference of the Related Preferred
Securities shall have such right.
In case a Debenture Event of Default shall occur and be continuing as to a
series of Corresponding Junior Subordinated Debentures, the Property Trustee
will have the right, as the holder of such Corresponding Junior Subordinated
Debentures, to declare the principal of and the interest on such Corresponding
Junior Subordinated Debentures, and any other amounts payable under the
Indenture, to be immediately due and payable and to enforce its other rights
with respect to such Corresponding Junior Subordinated Debentures.
The Indenture contains a provision entitling the Debenture Trustee, subject
to the duty of the Debenture Trustee during default to act with the required
standard of care, to be indemnified by the holders of Junior Subordinated
Debentures issued under the Indenture before proceeding to exercise any right
or power under the Indenture at the request of such holders. The Indenture also
provides that the holders of a majority in principal amount of the outstanding
Junior Subordinated Debentures issued thereunder of all series affected (voting
as one class) may direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee, with respect to the
Securities of such series.
The Indenture contains a covenant that the Company will file annually with
the Debenture Trustee a certificate as to the absence of any default or
specifying any default that exists.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default with respect to a series of Corresponding
Junior Subordinated Debentures has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on such
Corresponding Junior Subordinated Debentures on the date such interest or
principal is due and payable, a holder of Related Preferred Securities may
institute a legal proceeding directly against the Company for enforcement of
payment to such holder of the principal of or interest on such Corresponding
Junior Subordinated Debentures having a principal amount equal to the aggregate
Liquidation Amount of the Related Preferred Securities of such holder (a
"Direct Action"). The Company may not amend the Indenture to remove the
foregoing right to bring a Direct Action without the prior written consent of
the holders of all of the Preferred Securities outstanding. If the right to
bring a Direct Action is removed, the applicable Issuer may become subject to
reporting obligations under the Exchange Act. The Company shall have the right
under the Indenture to set-off any payment made to such holder of Preferred
Securities by the Company in connection with a Direct Action.
The holders of the Preferred Securities will not be able to exercise directly
any remedies other than those set forth in the preceding paragraph available to
the holders of the Junior Subordinated Debentures unless there shall have been
an Event of Default under the Trust Agreement. See "Description of Preferred
Securities --Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company may not merge or consolidate or sell
or convey all or substantially all of its assets unless (i) the successor
entity (if other than the Company) is a U.S. entity and expressly assumes the
Company's obligations under such Indenture and on the Junior Subordinated
Debentures issued under such Indenture; (ii) immediately after giving effect to
such transaction, the Company or the successor would not be in default under
such Indenture; (iii) in the case of Corresponding Junior Subordinated
Debentures, such transaction is permitted under the related Trust Agreement or
Guarantee and does not give rise to any breach or violation of the related
Trust Agreement and Guarantee; and (iv) certain other conditions as prescribed
by the Indenture are met.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Junior Subordinated
Debentures not previously delivered to the Debenture Trustee for cancellation
(i) have become due and payable or (ii) will become due and payable at their
Stated Maturity within one year, and the Company deposits or causes to be
deposited with the Debenture Trustee trust funds, in trust, for the purpose and
in an amount in the currency or currencies in which
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the Junior Subordinated Debentures are payable sufficient to pay and discharge
the entire indebtedness on the Junior Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation, for the principal (and
premium, if any) and interest to the date of the deposit or to the Stated
Maturity, as the case may be, then the Indenture will cease to be of further
effect (except as to the Company's obligations to pay all other sums due
pursuant to the Indenture and to provide the officers' certificates and
opinions of counsel described therein), and the Company will be deemed to have
satisfied and discharged the Indenture.
CONVERSION OR EXCHANGE
The terms, if any, on which Junior Subordinate Debentures of any series are
convertible or exchangeable into Preferred Securities or other securities will
be set forth in the Prospectus Supplement relating thereto. Such terms may
include provisions for conversion or exchange, either mandatory, at the option
of the holder, or at the option of the Company, in which case the number of
shares of Preferred Securities or other securities to be received by the
holders of Junior Subordinated Debentures would be calculated as of a time and
in the manner stated in the Prospectus Supplement relating thereto.
SUBORDINATION
In the Indenture, the Company has covenanted and agreed that the obligations
of the Company to make any payment of or on account of the principal of and
interest on the Junior Subordinated Debentures of any series will be
subordinate and junior in right of payment to the Company's obligations to the
holders of Senior Indebtedness of the Company to the extent described in the
next two paragraphs. Senior Indebtedness of the Company with respect to the
Junior Subordinated Debentures will include the existing and future senior
notes, senior subordinated notes and subordinated notes of the Company and
means (i) any indebtedness of the Company for borrowed or purchased money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) obligations under letters of credit, (iii) any indebtedness
or other obligations of the Company with respect to commodity contracts,
interest rate and currency swap agreements, cap, floor and collar agreements,
currency spot and forward contracts, and other similar agreements or
arrangements designed to protect against fluctuations in currency exchange or
interest rates, and (iv) any guarantees, endorsements (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business) or other similar contingent obligations in respect of obligations of
others of a type described in (i), (ii) or (iii) above, whether or not such
obligation is classified as a liability on a balance sheet prepared in
accordance with generally accepted accounting principles, in each case listed
in (i), (ii), (iii) and (iv) above, whether outstanding on the date of
execution of the Indenture or thereafter incurred, other than obligations
"ranking on a parity" with the Junior Subordinated Debentures or "ranking
junior" to the Junior Subordinated Debentures (as those terms are defined in
the Supplemental Indenture); provided, however, that the Junior Subordinated
Debentures of any series will not be subordinate and junior in right of payment
to any trade creditors. As of September 30, 1996, there was $5.4 billion of
Senior Indebtedness of the Company outstanding. The Indenture does not limit
the amount of future increase in Senior Indebtedness of the Company. The
Company expects from time to time to issue additional indebtedness constituting
Senior Indebtedness.
No payments on account of principal (or premium, if any) or interest, if any,
in respect of the Junior Subordinated Debentures may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
In the case of any insolvency, receivership, conservatorship, reorganization,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings or any liquidation or winding-up of or relating to the Company as a
whole, whether voluntary or involuntary, all obligations of the Company to
holders of Senior Indebtedness of the Company shall be entitled to be paid in
full before any payment shall be made on account of the principal of or
interest on the Junior Subordinated Debentures. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Company, the holders of the Junior Subordinated Debentures,
together with the holders of any obligations of the Company ranking on a parity
with the Junior Subordinated Debentures, shall be entitled to be paid from the
remaining assets of the Company the
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amount at the time due and owing on account of unpaid principal of and
interest on the Junior Subordinated Debentures before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Company ranking junior to the
Junior Subordinated Debentures. By reason of such subordination, in the event
of the insolvency of the Company, holders of Senior Indebtedness of the
Company may receive more, ratably, and holders of the Junior Subordinated
Debentures having a claim pursuant to the Junior Subordinated Debentures may
receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of Default in
respect of the Junior Subordinated Debentures.
GOVERNING LAW
The Indenture and the Junior Subordinated Debentures will be governed by and
construed in accordance with the laws of the State of California.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the
Indenture at the request of any holder of Junior Subordinated Debentures,
unless offered reasonable indemnity by such holder against the costs, expenses
and liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures may be issued in one or
more series of Junior Subordinated Debentures under the Indenture with terms
corresponding to the terms of a series of Related Preferred Securities. In
that event, concurrently with the issuance of each Issuer's Preferred
Securities, such Issuer will invest the proceeds thereof and the consideration
paid by the Company for the Common Securities in a series of Corresponding
Junior Subordinated Debentures issued by the Company to such Issuer. Each
series of Corresponding Junior Subordinated Debentures will be in the
principal amount equal to the aggregate stated Liquidation Amount of the
Related Preferred Securities and the Common Securities of such Issuer and will
rank pari passu with all other series of Junior Subordinated Debentures.
Holders of the Related Preferred Securities for a series of Corresponding
Junior Subordinated Debentures will have the rights in connection with
modifications to the Indenture or upon occurrence of Debenture Events of
Default described under "-- Modification of Indenture" and "-- Debenture
Events of Default", unless provided otherwise in the Prospectus Supplement for
such Related Preferred Securities.
Unless otherwise specified in the applicable Prospectus Supplement, if a Tax
Event in respect of an Issuer of Related Preferred Securities shall occur and
be continuing, the Company may, at its option and subject to prior approval of
the Federal Reserve (if then so required under applicable guidelines or
policies), redeem the Corresponding Junior Subordinated Debentures at any time
within 90 days of the occurrence of such Tax Event, in whole but not in part,
subject to the provisions of the Indenture and whether or not such
Corresponding Junior Subordinated Debentures are then otherwise redeemable at
the option of the Company. The redemption price for any Corresponding Junior
Subordinated Debentures shall be equal to 100% of the principal amount of such
Corresponding Junior Subordinated Debentures then outstanding plus accrued and
unpaid interest to the date fixed for redemption. For so long as the
applicable Issuer is the holder of all the outstanding series of Corresponding
Junior Subordinated Debentures, the proceeds of any such redemption will be
used by the Issuer to redeem the corresponding Trust Securities in accordance
with their terms.
The Company will covenant in the Indenture as to each series of
Corresponding Junior Subordinated Debentures, that if and so long as (i) the
Issuer of the related series of Trust Securities is the holder of all such
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Corresponding Junior Subordinated Debentures, (ii) a Tax Event in respect of
such Issuer has occurred and is continuing and (iii) the Company has elected,
and has not revoked such election, to pay Additional Sums (as defined under
"Description of Preferred Securities -- Redemption or Exchange") in respect of
such Trust Securities, the Company will pay to such Issuer such Additional
Sums. The Company will also covenant, as to each series of Corresponding
Junior Subordinated Debentures, (i) to maintain directly or indirectly 100%
ownership of the Common Securities of the Issuer to which Corresponding Junior
Subordinated Debentures have been issued, provided that certain successors
which are permitted pursuant to the Indenture may succeed to the Company's
ownership of the Common Securities, (ii) not to voluntarily terminate, wind-up
or liquidate any Issuer, except (a) in connection with a distribution of
Corresponding Junior Subordinated Debentures to the holders of the Preferred
Securities in liquidation of such Issuer, or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the related Trust
Agreement, and (iii) to use its reasonable efforts, consistent with the terms
and provisions of the related Trust Agreement, to cause such Issuer to remain
classified as a grantor trust and not as an association taxable as a
corporation for United States Federal income tax purposes.
DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer, the Issuer
Trustees on behalf of such Issuer will issue the Preferred Securities and the
Common Securities. The Preferred Securities of a particular issue will
represent preferred beneficial ownership interests in the Issuer and the
holders thereof will be entitled to a preference in certain circumstances with
respect to Distributions and amounts payable on redemption or liquidation over
the Common Securities of such Issuer, as well as other benefits as described
in the corresponding Trust Agreement. This summary of certain provisions of
the Preferred Securities and each Trust Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of each Trust Agreement, including the definitions therein
of certain terms, and the Trust Indenture Act. Wherever particular defined
terms of a Trust Agreement (as amended or supplemented from time to time) are
referred to herein or in a Prospectus Supplement, such defined terms are
incorporated herein or therein by reference. The form of the Trust Agreement
has been filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each of the Issuers is a legally separate entity and
the assets of one are not available to satisfy the obligations of any of the
others.
GENERAL
The Preferred Securities of an Issuer will rank pari passu, and payments
will be made thereon pro rata, with the Common Securities of that Issuer
except as described under "-- Subordination of Common Securities." Legal title
to the Corresponding Junior Subordinated Debentures will be held by the
Property Trustee in trust for the benefit of the holders of the related
Preferred Securities and Common Securities. Each Guarantee Agreement executed
by the Company for the benefit of the holders of an Issuer's Preferred
Securities (the "Guarantee" for such Preferred Securities) will be a guarantee
on a subordinated basis with respect to the related Preferred Securities but
will not guarantee payment of Distributions or amounts payable on redemption
or liquidation of such Preferred Securities when the related Issuer does not
have funds on hand available to make such payments. See "Description of
Guarantees."
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such
dates as specified in the applicable Prospectus Supplement. In the event that
any date on which Distributions are payable on the Preferred Securities is not
a Business Day (as defined below), payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect to any such delay) except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date (each
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date on which Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of
New York and San Francisco are authorized or required by law or executive
order to remain closed or a day on which the corporate trust office of the
Property Trustee or the Debenture Trustee is closed for business.
Each Issuer's Preferred Securities represent preferred beneficial ownership
interests in the applicable Issuer, and the Distributions on each Preferred
Security will be payable at a rate specified in the Prospectus Supplement for
such Preferred Securities. The amount of Distributions payable for any period
will be computed on the basis of a 360-day year of twelve 30-day months unless
otherwise specified in the applicable Prospectus Supplement. Distributions to
which holders of Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
Prospectus Supplement. The term "Distributions" as used herein includes any
such additional Distributions unless otherwise stated.
If provided in the applicable Prospectus Supplement, the Company has the
right under the Indenture, pursuant to which it will issue the Corresponding
Junior Subordinated Debentures, to defer the payment of interest at any time
or from time to time on any series of the Corresponding Junior Subordinated
Debentures for a period which will be specified in such Prospectus Supplement
relating to such series (each, an "Extension Period"), provided that no
Extension Period may extend beyond the Stated Maturity of the Corresponding
Junior Subordinated Debentures. As a consequence of any such deferral,
Distributions on the Related Preferred Securities would be deferred (but would
continue to accumulate additional Distributions thereon at the rate per annum
set forth in the Prospectus Supplement for such Preferred Securities) by the
Issuer of such Preferred Securities during any such Extension Period. During
such Extension Period the Company may not, and may not permit any subsidiary
of the Company to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's capital stock (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu with or junior in interest to the Corresponding
Junior Subordinated Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Company of debt securities of any subsidiary
of the Company if such guarantee ranks pari passu with or junior in interest
to the Corresponding Junior Subordinated Debentures (other than (a) dividends
or distributions in common stock of the Company, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights
plans, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments
under any Guarantee with respect to such Related Preferred Securities and (d)
purchases of common stock or rights related to the issuance of common stock
under any of the Company's benefit plans for its directors, officers or
employees).
The revenue of each Issuer available for distribution to holders of its
Preferred Securities will be limited to payments under the Corresponding
Junior Subordinated Debentures in which the Issuer will invest the proceeds
from the issuance and sale of its Trust Securities. See "Description of Junior
Subordinated Debentures -- Corresponding Junior Subordinated Debentures." If
the Company does not make interest payments on such Corresponding Junior
Subordinated Debentures, the Property Trustee will not have funds available to
pay Distributions on the Related Preferred Securities. The payment of
Distributions (if and to the extent the Issuer has funds legally available for
the payment of such Distributions and cash sufficient to make such payments)
is guaranteed by the Company on a limited basis as set forth herein under
"Description of Guarantees".
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of such Issuer on the relevant record
dates, which, as long as the Preferred Securities remain in book-entry form,
will be one Business Day prior to the relevant Distribution Date. Subject to
any applicable laws and regulations and the provisions of the applicable Trust
Agreement, each such payment will be made as described under "Book-Entry
Issuance." In the event any Preferred Securities are not in book-entry form,
the relevant record date for such Preferred Securities shall be the date at
least 15 days prior to the relevant Distribution Date, as specified in the
applicable Prospectus Supplement.
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REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in whole or in part,
of any Corresponding Junior Subordinated Debentures, whether at maturity or
upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount (as defined below) of the Trust Securities, upon not less than 15
nor more than 60 days notice, at a redemption price (the "Redemption Price")
equal to the aggregate Liquidation Amount of such Trust Securities plus
accumulated but unpaid Distributions thereon to the date of redemption (the
"Redemption Date") and the related amount of the premium, if any, paid by the
Company upon the concurrent redemption of such Corresponding Junior
Subordinated Debentures. See "Description of Junior Subordinated Debentures --
Redemption". If less than all of any series of Corresponding Junior
Subordinated Debentures are to be repaid or redeemed on a Redemption Date,
then the proceeds from such repayment or redemption shall be allocated to the
redemption pro rata of the related Preferred Securities and the Common
Securities. The amount of premium, if any, paid by the Company upon the
redemption of all or any part of any series of any Corresponding Junior
Subordinated Debentures to be repaid or redeemed on a Redemption Date shall be
allocated to the redemption pro rata of the Related Preferred Securities and
the Common Securities.
The Company will have the right to redeem any series of Corresponding Junior
Subordinated Debentures (i) on or after such date as may be specified in the
applicable Prospectus Supplement, in whole at any time or in part from time to
time, (ii) at any time, in whole (but not in part), upon the occurrence of a
Tax Event or an Investment Company Event (each as defined below) or (iii) as
may be otherwise specified in the applicable Prospectus Supplement, in each
case subject to receipt of prior approval by the Federal Reserve if then
required under applicable guidelines or policies of the Federal Reserve.
Distribution of Corresponding Junior Subordinated Debentures. Subject to the
Company having received prior approval of the Federal Reserve to do so if then
required under applicable capital guidelines or policies, the Company has the
right to terminate any Issuer, and, after satisfaction of the liabilities of
creditors of such Issuer as provided by applicable law, cause such
Corresponding Junior Subordinated Debentures in respect of the Preferred
Securities and Common Securities issued by such Issuer to be distributed to
the holders of such Preferred Securities and Common Securities in liquidation
of the Issuer.
Tax Event, Capital Treatment Event or Investment Company Event
Redemption. If a Tax Event, Capital Treatment Event or Investment Company
Event in respect of a series of Preferred Securities and Common Securities
shall occur and be continuing, the Company has the right to redeem the
Corresponding Junior Subordinated Debentures in whole (but not in part) and
thereby cause a mandatory redemption of such Preferred Securities and Common
Securities in whole (but not in part) at the Redemption Price within 90 days
following the occurrence of such Tax Event, Capital Treatment Event or
Investment Company Event. In the event a Tax Event, Capital Treatment Event or
Investment Company Event in respect of a series of Preferred Securities and
Common Securities has occurred and is continuing, and the Company does not
elect to redeem the Corresponding Junior Subordinated Debentures and thereby
cause a mandatory redemption of such Preferred Securities and Common
Securities or to terminate the related Issuer and after satisfaction of the
liabilities of creditors of such Issuer as required by applicable law cause
the Corresponding Junior Subordinated Debentures to be distributed to holders
of such Preferred Securities and Common Securities in liquidation of the
Issuer as described above, such Preferred Securities will remain outstanding
and Additional Sums (as defined below) may be payable on the Corresponding
Junior Subordinated Debentures.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by an Issuer on the
outstanding Preferred Securities and Common Securities of the Issuer shall not
be reduced as a result of any additional taxes, duties and other governmental
charges to which such Issuer has become subject as a result of a Tax Event.
"Investment Company Event" means the receipt by the applicable Issuer of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a
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change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a
"Change in 1940 Act Law"), the applicable Issuer is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act"), which Change
in 1940 Act Law becomes effective on or after the date of original issuance of
the series of Preferred Securities issued by the Issuer.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to that portion of the principal amount of Corresponding
Junior Subordinated Debentures to be contemporaneously redeemed in accordance
with the Indenture, allocated to the Common Securities and to the Preferred
Securities based upon the relative Liquidation Amounts of such classes and the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (ii) with respect to a distribution of Corresponding Junior
Subordinated Debentures to holders of any series of Trust Securities in
connection with a dissolution or liquidation of the related Issuer,
Corresponding Junior Subordinated Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the holder to whom such
Corresponding Junior Subordinated Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Tax Event" means the receipt by the applicable Issuer of an opinion of
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which pronouncement or decision is announced on or after the date of issuance
of the Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that (i) such Issuer is, or will be within 90 days of the
date of such opinion, subject to United States Federal income tax with respect
to income received or accrued on the corresponding series of Corresponding
Junior Subordinated Debentures, (ii) interest payable by the Company on such
series of Corresponding Junior Subordinated Debentures is not, or within 90
days of the date of such opinion, will not be, deductible by the Company, in
whole or in part, for United States Federal income tax purposes, or (iii) such
Issuer is, or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other governmental
charges.
"Capital Treatment Event" means the reasonable determination by the Company
that, as a result of the occurrence of any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations thereunder)
of the United States or any political subdivision thereof or therein, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or which pronouncement, action or decision is announced on
or after the date of issuance of the applicable Preferred Securities, there is
more than an insubstantial risk that the Company will not be entitled to treat
an amount equal to the aggregate Liquidation Amount of the Preferred
Securities as "Tier 1 Capital" (or the then equivalent thereof) for purposes
of the capital adequacy guidelines of the Federal Reserve, as then in effect
and applicable to the Company.
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debentures for any series of Preferred Securities (i) such
series of Preferred Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company ("DTC") or its nominee, as the record holder
of such series of Preferred Securities, will receive a registered global
certificate or certificates representing the Corresponding Junior Subordinated
Debentures to be delivered upon such distribution and (iii) any certificates
representing such series of Preferred Securities not held by DTC or its
nominee will be deemed to represent the Corresponding Junior Subordinated
Debentures having a principal amount equal to the stated liquidation
preference of such series of Preferred Securities, and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid Distributions on
such series of Preferred Securities until such certificates are presented to
the Administrative Trustees or their agent for transfer or reissuance.
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There can be no assurance as to the market prices for the Preferred
Securities or the Corresponding Junior Subordinated Debentures that may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of an Issuer were to occur. Accordingly, the Preferred Securities
that an investor may purchase, or the Corresponding Junior Subordinated
Debentures that the investor may receive on dissolution and liquidation of an
Issuer, may trade at a discount to the price that the investor paid to
purchase the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Junior Subordinated Debentures. Redemptions of
the Preferred Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the related Issuer has
funds on hand available for the payment of such Redemption Price. See also "--
Subordination of Common Securities".
If an Issuer gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
to the extent funds are available, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price
and will give DTC irrevocable instructions and authority to pay the Redemption
Price to the holders of such Preferred Securities. See "Book-Entry Issuance".
If such Preferred Securities are no longer in book-entry form, the Property
Trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for such Preferred Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the holders thereof
upon surrender of their certificates evidencing such Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Preferred Securities called for redemption shall be
payable to the holders of such Preferred Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Preferred Securities so called for
redemption will cease, except the right of the holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be outstanding.
In the event that any date fixed for redemption of Preferred Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer or by the
Company pursuant to the Guarantee as described under "Description of
Guarantees", Distributions on such Preferred Securities will continue to
accrue at the then applicable rate, from the Redemption Date originally
established by the Issuer for such Preferred Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
Payment of the Redemption Price on the Preferred Securities and any
distribution of Corresponding Junior Subordinated Debentures to holders of
Preferred Securities shall be made to the applicable recordholders thereof as
they appear on the register for such Preferred Securities on the Redemption
Date.
If less than all of the Preferred Securities and Common Securities issued by
an Issuer are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Preferred Securities and Common Securities to be
redeemed shall be allocated pro rata to the Preferred Securities and the
Common Securities based upon the relative Liquidation Amounts of such classes.
The particular Preferred Securities to be redeemed shall be selected on a pro
rata basis not more than 60 days prior to the Redemption Date by the Property
Trustee
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from the outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $25.
The Property Trustee shall promptly notify the trust registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of each Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Notice of any redemption will be mailed at least 15 days but not more than
60 days before the Redemption Date to each Holder of Trust Securities to be
redeemed at its registered address. Unless the Company defaults in payment of
the Redemption Price on the Corresponding Junior Subordinated Debentures, on
and after the Redemption Date interest will cease to accrue on such Junior
Subordinated Debentures or portions thereof (and distributions) will cease to
accrue on the Related Preferred Securities or portions thereof) called for
redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer's
Preferred Securities and Common Securities, as applicable, shall be made pro
rata based on the Liquidation Amount of such Preferred Securities and Common
Securities; provided, however, that if on any Distribution Date or Redemption
Date a Debenture Event of Default shall have occurred and be continuing, no
payment of any Distribution on, or Redemption Price of, any of the Issuer's
Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions on
all of the Issuer's outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all of the
Issuer's outstanding Preferred Securities then called for redemption, shall
have been made or provided for, and all funds available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions on, or Redemption Price of, the Issuer's Preferred Securities
then due and payable.
In the case of any Event of Default resulting from a Debenture Event of
Default, the Company as holder of such Issuer's Common Securities will be
deemed to have waived any right to act with respect to any such Event of
Default under the applicable Trust Agreement until the effect of all such
Events of Default with respect to such Preferred Securities have been cured,
waived or otherwise eliminated. Until any such Events of Default under the
applicable Trust Agreement with respect to the Preferred Securities have been
so cured, waived or otherwise eliminated, the Property Trustee shall act
solely on behalf of the holders of such Preferred Securities and not on behalf
of the Company as holder of the Issuer's Common Securities, and only the
holders of such Preferred Securities will have the right to direct the
Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, each Issuer shall automatically terminate
upon expiration of its term and shall terminate on the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Company; (ii)
the distribution of a Like Amount of the Corresponding Junior Subordinated
Debentures to the holders of its Trust Securities, if the Company, as
Depositor, has given written direction to the Property Trustee to terminate
such Issuer (which direction is optional and wholly within the discretion of
the Company, as Depositor and subject to the Company having received prior
approval of the Federal Reserve if so required under applicable capital
guidelines and policies); (iii) redemption of all of the Issuer's Preferred
Securities as described under "Description of Preferred Securities --
Redemption or Exchange -- Mandatory Redemption"; and (iv) the entry of an
order for the dissolution of the Issuer by a court of competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv)
above, the Issuer shall be liquidated by the Issuer Trustees as expeditiously
as the Issuer Trustees determine to be possible by distributing, after
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satisfaction of liabilities to creditors of such Issuer as provided by
applicable law, to the holders of such Trust Securities a Like Amount of the
Corresponding Junior Subordinated Debentures, unless such distribution is
determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of the Issuer available
for distribution to holders, after satisfaction of liabilities to creditors of
such Issuer as provided by applicable law, an amount equal to, in the case of
holders of Preferred Securities, the aggregate of the Liquidation Amount plus
accrued and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If such Liquidation Distribution can be
paid only in part because such Issuer has insufficient assets available to pay
in full the aggregate Liquidation Distribution, then the amounts payable
directly by such Issuer on its Preferred Securities shall be paid on a pro
rata basis. The holder(s) of such Issuer's Common Securities will be entitled
to receive distributions upon any such liquidation pro rata with the holders
of its Preferred Securities, except that if a Debenture Event of Default has
occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under each
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities issued thereunder (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the Indenture
(see "Description of Junior Subordinated Debentures -- Debenture Events of
Default"); or
(ii) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of
30 days; or
(iii) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in such Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate Liquidation
Amount of the outstanding Preferred Securities of the applicable Issuer, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" under such
Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of such Issuer's Preferred
Securities, the Administrative Trustees and the Company, as Depositor, unless
such Event of Default shall have been cured or waived. The Company, as
Depositor, and the Administrative Trustees are required to file annually with
the Property Trustee a certificate as to whether or not they are in compliance
with all the conditions and covenants applicable to them under each Trust
Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities upon
termination of each Issuer as described above. See "-- Liquidation
Distribution Upon Termination". The existence of an Event of Default does not
entitle the holders of Preferred Securities to accelerate the maturity
thereof.
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REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed at such time by
the holders of a majority in Liquidation Amount of the outstanding Preferred
Securities. In no event will the holders of the Preferred Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Company as the holder of the
Common Securities. No resignation or removal of an Issuer Trustee and no
appointment of a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the provisions of the
applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property
may at the time be located, the Company, as the holder of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case a
Debenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any
entity succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee under each Trust
Agreement, provided such entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATION OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any entity, except as described below or as
otherwise indicated in the Prospectus Supplement. An Issuer may, at the
request of the Company, with the consent of the Administrative Trustees and
without the consent of the holders of the Preferred Securities, merge with or
into, consolidate, amalgamate, or be replaced by or convey, transfer or lease
its properties and assets substantially as an entirety to a trust organized as
such under the laws of any State; provided, that (i) such successor entity
either (a) expressly assumes all of the obligations of such Issuer with
respect to the Preferred Securities or (b) substitutes for the Preferred
Securities other securities having substantially the same terms as the
Preferred Securities (the "Successor Securities"), so long as the Successor
Securities rank the same as the Preferred Securities rank in priority with
respect to distributions and payments upon liquidation, redemption and
otherwise, (ii) the Company expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Corresponding Junior Subordinated Debentures, (iii) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not cause the Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization,
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Preferred Securities (including any Successor
Securities) in any material respect, (v) such successor entity has a purpose
substantially identical to that of the Issuer, (vi) prior to such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Company has received an opinion from independent counsel to the Issuer
experienced in such matters to the effect that (a) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of the Preferred
Securities (including
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any Successor Securities) in any material respect, and (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, neither the Issuer nor such successor entity will be required to
register as an investment company under the Investment Company Act and (vii)
the Company or any permitted successor or assignee owns all of the Common
Securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, an Issuer shall not,
except with the consent of holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Issuer or the successor entity to be classified as other
than a grantor trust for United States Federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees -- Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under such Trust Agreement, which shall not be
inconsistent with the other provisions of such Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of such Trust Agreement to such
extent as shall be necessary to ensure that the Issuer will be classified for
United States Federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Issuer will not be
required to register as an "investment company" under the Investment Company
Act; provided, however, that in the case of clause (i), such action shall not
adversely affect in any material respect the interests of any holder of Trust
Securities, and any amendments of such Trust Agreement shall become effective
when notice thereof is given to the holders of Trust Securities. Each Trust
Agreement may be amended by the Issuer Trustees and the Company with (i) the
consent of holders representing not less than a majority (based upon
Liquidation Amounts) of the outstanding Trust Securities, and (ii) receipt by
the Issuer Trustees of an opinion of counsel to the effect that such amendment
or the exercise of any power granted to the Issuer Trustees in accordance with
such amendment will not affect the Issuer's status as a grantor trust for
United States Federal income tax purposes or the Issuer's exemption from
status as an "investment company" under the Investment Company Act, provided
that without the consent of each holder of Trust Securities, such Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a holder of Trust Securities
to institute suit for the enforcement of any such payment on or after such
date.
So long as any Corresponding Junior Subordinated Debentures are held by the
Property Trustee, the Issuer Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Property
Trustee with respect to such Corresponding Junior Subordinated Debentures,
(ii) waive any past default that is waivable under the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Junior Subordinated Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or such
Corresponding Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of the holders
of a majority in aggregate Liquidation Amount of all outstanding Preferred
Securities; provided, however, that where a consent under the Indenture would
require the consent of each holder of Corresponding Junior Subordinated
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the corresponding
Preferred Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Preferred
Securities except by subsequent vote of the holders of the Preferred
Securities. The
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Property Trustee shall notify each holder of Preferred Securities of any
notice of default with respect to the Corresponding Junior Subordinated
Debentures. In addition to obtaining the foregoing approvals of the holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Issuer Trustees shall obtain an opinion of counsel experienced in such matters
to the effect that the Issuer will not be classified as an association taxable
as a corporation for United States Federal income tax purposes on account of
such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Preferred Securities in the
manner set forth in each Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for an Issuer to redeem and cancel its Preferred Securities in accordance with
the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Company, the Issuer Trustees or any affiliate
of the Company or any Issuer Trustees, shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The Preferred Securities of a series may be issued in whole or in part in
the form of one or more Global Preferred Securities that will be deposited
with, or on behalf of, the Depositary identified in the Prospectus Supplement
relating to such series. Unless otherwise indicated in the applicable
Prospectus Supplement for such series, the Depositary will be DTC. Global
Preferred Securities may be issued only in fully registered form and in either
temporary or permanent form. Unless and until it is exchanged in whole or in
part for the individual Preferred Securities represented thereby, a Global
Preferred Security may not be transferred except as a whole by the Depositary
for such Global Preferred Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by the Depositary or any nominee to a successor Depositary or
any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Preferred Securities will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Preferred Security, and the deposit of such
Global Preferred Security with or on behalf of the Depositary, the Depositary
for such Global Preferred Security or its nominee will credit, on its book-
entry registration and transfer system, the respective aggregate Liquidation
Amounts of the individual Preferred Securities represented by such Global
Preferred Securities to the accounts of Participants. Such accounts shall be
designated by the dealers, underwriters or agents with respect to such
Preferred Securities or by the Company if such Preferred Securities are
offered and sold directly by the Company. Ownership of beneficial interests in
a Global Preferred Security will be limited to Participants or persons that
may hold interests through Participants. Ownership of beneficial interests in
such Global Preferred Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the applicable
Depositary or its nominee (with respect to interests of Participants) and the
records of Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests
in a Global Preferred Security.
So long as the Depositary for a Global Preferred Security, or its nominee,
is the registered owner of such Global Preferred Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Preferred Securities represented by such Global Preferred Security for
all purposes under the Indenture governing such Preferred Securities. Except
as provided below, owners of beneficial interests in a
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Global Preferred Security will not be entitled to have any of the individual
Preferred Securities of the series represented by such Global Preferred
Security registered in their names, will not receive or be entitled to receive
physical delivery of any such Preferred Securities of such series in
definitive form and will not be considered the owners or holders thereof under
the Indenture.
Payments of principal of (and premium, if any) and interest on individual
Preferred Securities represented by a Global Preferred Security registered in
the name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Preferred
Security representing such Preferred Securities. None of the Company, the
Property Trustee, any Paying Agent, or the Securities Registrar for such
Preferred Securities will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of the Global Preferred Security representing such Preferred
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Company expects that the Depositary for a series of Preferred Securities
or its nominee, upon receipt of any payment of Liquidation Amount, premium or
Distributions in respect of a permanent Global Preferred Security representing
any of such Preferred Securities, immediately will credit Participants'
accounts with payments in amounts proportionate to their respective beneficial
interest in the aggregate Liquidation Amount of such Global Preferred Security
for such Preferred Securities as shown on the records of such Depositary or
its nominee. The Company also expects that payments by Participants to owners
of beneficial interests in such Global Preferred Security held through such
Participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name." Such payments will be
the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Preferred Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Issuer within 90 days, the Issuer will issue individual
Preferred Securities of such series in exchange for the Global Preferred
Security representing such series of Preferred Securities. In addition, the
Issuer may at any time and in its sole discretion, subject to any limitations
described in the Prospectus Supplement relating to such Preferred Securities,
determine not to have any Preferred Securities of such series represented by
one or more Global Preferred Securities and, in such event, will issue
individual Preferred Securities of such series in exchange for the Global
Preferred Security or Securities representing such series of Preferred
Securities. Further, if the Issuer so specifies with respect to the Preferred
Securities of a series, an owner of a beneficial interest in a Global
Preferred Security representing Preferred Securities of such series may, on
terms accepable to the Issuer, the Property Trustee and the Depositary for
such Global Preferred Security, receive individual Preferred Securities of
such series in exchange for such beneficial interests, subject to any
limitations described in the Prospectus Supplement relating to such Preferred
Securities. In any such instance, an owner of a beneficial interest in a
Global Preferred Security will be entitled to physical delivery of individual
Preferred Securities of the series represented by such Global Preferred
Security equal in principal amount to such beneficial interest and to have
such Preferred Securities registered in its name. Individual Preferred
Securities of such series so issued will be issued in denominations, unless
otherwise specified by the Issuer, of $25 and integral multiples thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to the
Depositary, which shall credit the relevant accounts at the Depositary on the
applicable Distribution Dates or, if any Issuer's Preferred Securities are not
held by the Depositary, such payments shall be made by check mailed to the
address of the holder entitled thereto as such address shall appear on the
Register. Unless otherwise specified in the applicable Prospectus Supplement,
the paying agent (the "Paying Agent") shall initially be the Property Trustee
and any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Company. The Paying Agent shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Property Trustee
and the Company. In the event that the Property Trustee shall no longer be the
Paying Agent, the Administrative Trustees shall appoint a successor (which
shall be a bank or trust company acceptable to the Administrative Trustees and
the Company) to act as Paying Agent.
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REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of each Issuer, but upon payment of any tax or other
governmental charges that may be imposed in connection with any transfer or
exchange. The Issuers will not be required to register or cause to be
registered the transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in each Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of the powers
vested in it by the applicable Trust Agreement at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the applicable Trust Agreement or is unsure of the application of any
provision of the applicable Trust Agreement, and the matter is not one on
which holders of Preferred Securities are entitled under such Trust Agreement
to vote, then the Property Trustee shall take such action as is directed by
the Company and if not so directed, shall take such action as it deems
advisable and in the best interests of the holders of the Trust Securities and
will have no liability except for its own bad faith, negligence or willful
misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuers in such a way that no Issuer will be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association taxable as a
corporation for United States Federal income tax purposes and so that the
Corresponding Junior Subordinated Debentures will be treated as indebtedness
of the Company for United States Federal income tax purposes. In this
connection, the Company and the Administrative Trustees are authorized to take
any action, not inconsistent with applicable law, the certificate of trust of
each Issuer or each Trust Agreement, that the Company and the Administrative
Trustees determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not materially adversely affect the
interests of the holders of the related Preferred Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Issuer may borrow money or issue debt or mortgage or pledge any of its
assets.
BOOK-ENTRY ISSUANCE
DTC will act as securities depositary for all of the Preferred Securities
and the Junior Subordinated Debentures, unless otherwise referred to in the
Prospectus Supplement relating to an offering of Preferred Securities or
Junior Subordinated Debentures. The Preferred Securities and the Junior
Subordinated Debentures will be issued only as fully-registered securities
registered in the name of Cede & Co. (DTC's nominee). One or more fully-
registered global certificates will be issued for the Preferred Securities of
each Issuer and the Junior Subordinated Debentures, representing in the
aggregate the total number of such Issuer's Preferred Securities or aggregate
principal balance of Junior Subordinated Debentures, respectively, and will be
deposited with DTC.
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DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. DTC is owned by a number of its Direct
Participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to the DTC system is also available to others such as securities brokers and
dealers, banks and trust companies that clear through or maintain custodial
relationships with Direct Participants, either directly or indirectly
("Indirect Participants"). The rules applicable to DTC and its Participants
are on file with the Commission.
Purchases of Preferred Securities or Junior Subordinated Debentures within
the DTC system must be made by or through Direct Participants, which will
receive a credit for the Preferred Securities or Junior Subordinated
Debentures on DTC's records. The ownership interest of each actual purchaser
of each Preferred Security and each Junior Subordinated Debenture ("Beneficial
Owner") is in turn to be recorded on the Direct and Indirect Participants'
records. Beneficial Owners will not receive written confirmation from DTC of
their purchases, but Beneficial Owners are expected to receive written
confirmations providing details of the transactions, as well as periodic
statements of their holdings, from the Direct or Indirect Participants through
which the Beneficial Owners purchased Preferred Securities or Junior
Subordinated Debentures.
Transfers of ownership interests in the Preferred Securities or Junior
Subordinated Debentures are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not
receive certificates representing their ownership interests in Preferred
Securities or Junior Subordinated Debentures, except in the event that use of
the book-entry system for the Preferred Securities of such Issuer or Junior
Subordinated Debentures is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities or Junior Subordinated Debentures; DTC's records reflect only the
identity of the Direct Participants to whose accounts such Preferred
Securities or Junior Subordinated Debentures are credited, which may or may
not be the Beneficial Owners. The Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Preferred Securities or Junior Subordinated Debentures. If less than all
of an Issuer's Preferred Securities or the Junior Subordinated Debentures are
being redeemed, DTC's current practice is to determine by lot the amount of
the interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities or the Junior
Subordinated Debentures is limited to the holders of record of the Preferred
Securities or Junior Subordinated Debentures, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Preferred Securities or Junior Subordinated Debentures. Under its
usual procedures, DTC would mail an omnibus proxy (the "Omnibus Proxy") to the
relevant Trustee as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts such Preferred Securities or Junior Subordinated Debentures
are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
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Distribution payments on the Preferred Securities or the Junior Subordinated
Debentures will be made by the relevant Trustee to DTC. DTC's practice is to
credit Direct Participants' accounts on the relevant payment date in
accordance with their respective holdings shown on DTC's records unless DTC
has reason to believe that it will not receive payments on such payment date.
Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices and will be the responsibility of such
Participant and not of DTC, the relevant Trustee, the Issuer thereof or the
Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment of Distributions to DTC is the
responsibility of the relevant Trustee, disbursement of such payments to
Direct Participants is the responsibility of DTC, and disbursements of such
payments to the Beneficial Owners is the responsibility of Direct and Indirect
Participants.
DTC may discontinue providing its services as securities depositary with
respect to any of the Preferred Securities or the Junior Subordinated
Debentures at any time by giving reasonable notice to the relevant Trustee and
the Company. In the event that a successor securities depositary is not
obtained, definitive Preferred Security or Junior Subordinated Debenture
certificates representing such Preferred Securities or Junior Subordinated
Debentures are required to be printed and delivered. The Company, at its
option, may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor depositary). After a Debenture Event of Default,
the holders of a majority in liquidation preference of Preferred Securities or
aggregate principal amount of Junior Subordinated Debentures may determine to
discontinue the system of book-entry transfers through DTC. In any such event,
definitive certificates for such Preferred Securities or Junior Subordinated
Debentures will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuers and the Company believe to be
accurate, but the Issuers and the Company assume no responsibility for the
accuracy thereof. Neither the Issuers nor the Company has any responsibility
for the performance by DTC or its Participants of their respective obligations
as described herein or under the rules and procedures governing their
respective operations.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Company concurrently with
the issuance by each Issuer of its Preferred Securities for the benefit of the
holders from time to time of such Preferred Securities. The First National
Bank of Chicago will act as indenture trustee ("Guarantee Trustee") under each
Guarantee for the purposes of compliance with the Trust Indenture Act and each
Guarantee will be qualified as an Indenture under the Trust Indenture Act.
This summary of certain provisions of the Guarantees does not purport to be
complete and is subject to, and qualified in its entirety by reference to, all
of the provisions of each Guarantee Agreement, including the definitions
therein of certain terms, and the Trust Indenture Act. The form of the
Guarantee has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. Reference in this summary to Preferred
Securities means that Issuer's Preferred Securities to which a Guarantee
relates. The Guarantee Trustee will hold each Guarantee for the benefit of the
holders of the related Issuer's Preferred Securities.
GENERAL
The Company will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined below) to
the holders of the Preferred Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that such Issuer may have or assert
other than the defense of payment. The following payments with respect to the
Preferred Securities, to the extent not paid by or on behalf of the related
Issuer (the "Guarantee Payments"), will be subject to the Guarantee: (i) any
accumulated and unpaid Distributions required to be paid on such Preferred
Securities, to the extent that such Issuer has funds on hand available
therefor at such time, (ii) the Redemption Price with respect to any Preferred
Securities called for redemption, to the extent that such Issuer has funds on
hand available therefor at such time, or (iii) upon a voluntary or involuntary
termination, winding up or liquidation of such Issuer (unless the
Corresponding Junior Subordinated Debentures are distributed to holders of
such Preferred Securities in exchange therefor), the lesser
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of (a) the Liquidation Distribution and (b) the amount of assets of such
Issuer remaining available for distribution to holders of Preferred Securities
after satisfaction of liabilities to creditors of such Issuer as required by
applicable law. The Company's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the Company to the
holders of the applicable Preferred Securities or by causing the Issuer to pay
such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related Issuer's obligations under the Preferred Securities, but will
apply only to the extent that such related Issuer has funds sufficient to make
such payments, and is not a guarantee of collection. If the Company does not
make interest payments on the Corresponding Junior Subordinated Debentures
held by the Issuer, the Issuer will not be able to pay Distributions on its
Preferred Securities and will not have funds legally available therefor. In
such event, holders of the Issuer's Preferred Securities would not be able to
rely on the Guarantee for such payments.
Each Guarantee will rank subordinate and junior in right of payment to all
liabilities of the Company, other than any liabilities which expressly by
their terms are made pari passu or subordinate to the obligations of the
Company under the Series A Guarantee. See "-- Status of the Guarantees". Since
the Company is a holding company, the right of the Company to participate in
any distribution of assets of any subsidiary upon such subsidiary's
liquidation or reorganization or otherwise is subject to the prior claims of
creditors of that subsidiary, except to the extent that the Company may itself
be a creditor of that subsidiary. Claims on the Company's subsidiaries by
creditors other than the Company include long-term debt and substantial
obligations in respect of federal funds purchased, securities sold under
repurchase agreements and certain other short-term borrowings, as well as
deposit liabilities. There are various legal limitations on the extent to
which the Bank, which is the Company's principal subsidiary, may extend
credit, pay dividends or otherwise supply funds to the Company or its
affiliates. Accordingly, the Company's obligations under the Guarantees will
be effectively subordinated to all existing and future liabilities of the
Company's subsidiaries, and claimants should look only to the assets of the
Company for payments thereunder. See "Wells Fargo & Company". Except as
otherwise provided in the applicable Prospectus Supplement, the Guarantees do
not limit the incurrence or issuance of other secured or unsecured debt of the
Company, including Senior Indebtedness, whether under the Indenture, any other
indenture that the Company may enter into in the future or otherwise. See the
Prospectus Supplement relating to any offering of Preferred Securities.
Taken together, the Company's obligations under each series of Junior
Subordinated Debentures, the Indenture, the related Trust Agreement, the
related Expense Agreement and the related Guarantee provide, in the aggregate,
a full, irrevocable and unconditional guarantee on a subordinated basis of all
of the Issuer's obligations under the Preferred Securities. No single document
standing alone or operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer's obligations under the Preferred
Securities. See "Relationship Among the Preferred Securities, the
Corresponding Junior Subordinated Debentures and the Guarantee".
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all liabilities of the
Company (including obligations under the Junior Subordinated Debentures), with
the exception of any liabilities which expressly by their terms are made pari
passu or subordinate to the obligations of the Company under the Series A
Guarantee.
Each Guarantee will rank pari passu with all other Guarantees issued by the
Company. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Guarantor to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). Each Guarantee will be held for the benefit of the holders of the
related Preferred Securities. Each Guarantee will not be discharged except by
payment of the Guarantee
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Payments in full to the extent not paid by the Issuer or upon distribution to
the holders of the Preferred Securities of the Corresponding Junior
Subordinated Debentures. None of the Guarantees places a limitation on the
amount of additional Senior Indebtedness that may be incurred by the Company.
The Company expects from time to time to incur additional indebtedness
constituting Senior Indebtedness.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the related Preferred Securities (in which case no
vote will be required), no Guarantee may be amended without the prior approval
of the holders of not less than a majority of the aggregate Liquidation Amount
of such outstanding Preferred Securities. The manner of obtaining any such
approval will be as set forth under "Description of the Preferred
Securities -- Voting Rights; Amendment of Each Trust Agreement". All
guarantees and agreements contained in each Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company
and shall inure to the benefit of the holders of the related Preferred
Securities then outstanding.
EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
related Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of such Guarantee or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under such Guarantee.
Any holder of the Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under such Guarantee
without first instituting a legal proceeding against the Issuer, the Guarantee
Trustee or any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with
all the conditions and covenants applicable to it under the Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Company in performance of any Guarantee, undertakes to perform
only such duties as are specifically set forth in each Guarantee and, after
default with respect to any Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the conduct of his or
her own affairs. Subject to this provision, the Guarantee Trustee is under no
obligation to exercise any of the powers vested in it by any Guarantee at the
request of any holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Preferred Securities, upon
full payment of the amounts payable upon liquidation of the related Issuer or
upon distribution of Corresponding Junior Subordinated Debentures to the
holders of the related Preferred Securities. Each Guarantee will continue to
be effective or will be reinstated, as the case may be, if at any time any
holder of the related Preferred Securities must restore payment of any sums
paid under such Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of California.
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RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the Issuer has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Company as and to the extent
set forth under "Description of Guarantees." Taken together, the Company's
obligations under each series of Junior Subordinated Debentures, the
Indenture, the related Trust Agreement, the related Expense Agreement, and the
related Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee on a subordinated basis of payments of Distributions
and other amounts due on the related series of Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation
of these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer's obligations under the Preferred
Securities. If and to the extent that the Company does not make payments on
any series of Corresponding Junior Subordinated Debentures, the related Issuer
will not have funds to pay Distributions or other amounts due on the Related
Preferred Securities. The Guarantees do not cover payment of Distributions
when the related Issuer does not have sufficient funds to pay such
Distributions. In such event, the remedy of a holder of a series of Preferred
Securities is to institute a legal proceeding directly against the Company for
enforcement of payment of a pro-rata portion of the payment due on the
Corresponding Junior Subordinated Debentures.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on each
series of Corresponding Junior Subordinated Debentures, such payments will be
sufficient to cover Distributions and other payments due on the related
Preferred Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Junior Subordinated Debentures will be equal to
the sum of the aggregate stated Liquidation Amount of the Related Preferred
Securities and related Common Securities; (ii) the interest rate and interest
and other payment dates on each series of Corresponding Junior Subordinated
Debentures will match the Distribution rate and Distribution and other payment
dates for the related Preferred Securities; (iii) under the Expense Agreement,
the Company shall pay for all and any costs, expenses and liabilities of such
Issuer except the Issuer's obligations to holders of its Preferred Securities
under such Preferred Securities; and (iv) each Trust Agreement further
provides that the Issuer will not engage in any activity that is not
consistent with the limited purposes of such Issuer.
Notwithstanding anything to the contrary in the Indenture, the Company has
the right to set-off any payment it is otherwise required to make thereunder
with and to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the related Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any related Preferred Security may institute a legal proceeding
directly against the Company to enforce its rights under the related Guarantee
without first instituting a legal proceeding against the Guarantee Trustee,
the related Issuer or any other person or entity.
A default or event of default under any Senior Indebtedness of the Company
would not constitute an Event of Default. However, in the event of payment
defaults under, or acceleration of, Senior Indebtedness of the Company, the
subordination provisions of the Indenture provide that no payments may be made
in respect of the Corresponding Junior Subordinated Debentures until such
Senior Indebtedness has been paid in full or any payment default thereunder
has been cured or waived. Failure to make required payments on any series of
Corresponding Junior Subordinated Debentures would constitute an Event of
Default.
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LIMITED PURPOSE OF ISSUERS
Each Issuer's Preferred Securities evidence a beneficial interest in such
Issuer, and each Issuer exists for the sole purpose of issuing its Preferred
Securities and Common Securities and investing the proceeds thereof in
Corresponding Junior Subordinated Debentures. A principal difference between
the rights of a holder of a Preferred Security and a holder of a Corresponding
Junior Subordinated Debenture is that a holder of a Corresponding Junior
Subordinated Debenture is entitled to receive from the Company the principal
amount of and interest accrued on Corresponding Junior Subordinated Debentures
held, while a holder of Preferred Securities is entitled to receive
Distributions from such Issuer (or from the Company under the applicable
Guarantee) if and to the extent such Issuer has funds available for the
payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
any Issuer involving the liquidation of the Corresponding Junior Subordinated
Debentures, after satisfaction of the liability of creditors as required by
applicable law, the holders of the Related Preferred Securities will be
entitled to receive, out of assets held by such Issuer, the Liquidation
Distribution in cash. See "Description of Preferred Securities -- Liquidation
Distribution Upon Termination." Upon any voluntary or involuntary liquidation
or bankruptcy of the Company, the Property Trustee, as holder of the
Corresponding Junior Subordinated Debentures, would be a subordinated creditor
of the Company, subordinated in right of payment to all Senior Indebtedness as
set forth in the Indenture, but entitled to receive payment in full of
principal and interest, before any stockholders of the Company receive
payments or distributions. Since the Company is the guarantor under each
Guarantee and has agreed under the Expense Agreement to pay for all costs,
expenses and liabilities of each Issuer (other than the Issuer's obligations
to the holders of its Preferred Securities), the positions of a holder of such
Preferred Securities and a holder of such Corresponding Junior Subordinated
Debentures relative to other creditors and to stockholders of the Company in
the event of liquidation or bankruptcy of the Company are expected to be
substantially the same.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures or the Preferred Securities may be sold
in a public offering to or through underwriters or dealers designated from
time to time. The Company and each Issuer may sell its Junior Subordinated
Debentures or Preferred Securities as soon as practicable after effectiveness
of the Registration Statement of which this Prospectus is a part. The names of
any underwriters or dealers involved in the sale of the Junior Subordinated
Debentures or Preferred Securities in respect of which this Prospectus is
delivered, the amount or number of Junior Subordinated Debentures and
Preferred Securities to be purchased by any such underwriters and any
applicable commissions or discounts will be set forth in the Prospectus
Supplement.
Underwriters may offer and sell Junior Subordinated Debentures or Preferred
Securities at a fixed price or prices, which may be changed, or from time to
time at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. In connection with the
sale of Preferred Securities, underwriters may be deemed to have received
compensation from the Company and/or the applicable Issuer in the form of
underwriting discounts or commissions and may also receive commissions.
Underwriters may sell Junior Subordinated Debentures or Preferred Securities
to or through dealers, and such dealers may receive compensation in the form
of discounts, concessions or commissions from the underwriters.
Any underwriting compensation paid by the Company and/or the applicable
Issuer to underwriters in connection with the offering of Junior Subordinated
Debentures or Preferred Securities, and any discounts, concessions or
commissions allowed by such underwriters to participating dealers, will be
described in a Prospectus Supplement. Underwriters and dealers participating
in the distribution of Junior Subordinated Debentures or Preferred Securities
may be deemed to be underwriters, and any discounts and commissions received
by them and any profit realized by them on resale of such Junior Subordinated
Debentures or Preferred Securities may be deemed to be underwriting discounts
and commissions, under the Securities Act. Underwriters
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<PAGE>
and dealers may be entitled, under agreement with the Company and the
applicable Issuer, to indemnification against and contribution toward certain
civil liabilities, including liabilities under the Securities Act, and to
reimbursement by the Company for certain expenses.
In connection with the offering of the Preferred Securities of any Issuer,
such Issuer may grant to the underwriters an option to purchase additional
Preferred Securities to cover over-allotments, if any, at the initial public
offering price (with an additional underwriting commission), as may be set
forth in the accompanying Prospectus Supplement. If such Issuer grants any
over-allotment option, the terms of such over-allotment option will be set
forth in the Prospectus Supplement for such Preferred Securities.
Underwriters and dealers may engage in transactions with, or perform
services for, the Company and/or the applicable Issuer and/or any of their
affiliates in the ordinary course of business.
The Junior Subordinated Debentures and the Preferred Securities will be new
issues of securities and will have no established trading market. Any
underwriters to whom Junior Subordinated Debentures or Preferred Securities
are sold for public offering and sale may make a market in such Junior
Subordinated Debentures and Preferred Securities, but such underwriters will
not be obligated to do so and may discontinue any market making at any time
without notice. Such Junior Subordinated Debentures or Preferred Securities
may or may not be listed on a national securities exchange or the Nasdaq
National Market. No assurance can be given as to the liquidity of or the
existence of trading markets for any Junior Subordinated Debentures or
Preferred Securities.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, certain
legal matters will be passed upon for the Company and the Issuers by Brobeck,
Phleger & Harrison LLP, San Francisco, California, counsel to the Company and
for the Issuers by Richards, Layton & Finger, special Delaware counsel to the
Issuers and the Company. The validity of the Guarantees and the Junior
Subordinated Debentures will be passed upon for the Underwriters by Sullivan &
Cromwell, Los Angeles, California. Brobeck, Phleger & Harrison LLP and
Sullivan & Cromwell will rely on the opinion of Richards, Layton & Finger as
to matters of Delaware law. Sullivan & Cromwell, from time to time, performs
legal services for the Company. Certain matters relating to United States
federal income tax considerations will be passed upon for the Company by
Brobeck, Phleger & Harrison LLP.
EXPERTS
The consolidated financial statements of the Company as of December 31, 1995
and 1994 and for each of the years in the three-year period ended December 31,
1995 incorporated by reference in the Company's Annual Report on Form 10-K for
the year ended December 31, 1995 incorporated by reference herein and
elsewhere in the Registration Statement have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The consolidated financial statements of First Interstate as of December 31,
1995 and 1994 and for each of the three years in the period ended December 31,
1995 incorporated by reference herein have been incorporated by reference
herein in reliance upon the report of Ernst & Young LLP, independent auditors,
incorporated by reference herein, given upon the authority of said firm as
experts in accounting and auditing.
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$750,000,000
WELLS FARGO & COMPANY
SENIOR DEBT SECURITIES
SUBORDINATED DEBT SECURITIES
PREFERRED STOCK
WELLS FARGO & COMPANY (the "Company") intends to offer and sell from time to
time its debt securities (the "Notes") and its Preferred Stock, $5.00 par
value ("Preferred Stock"), with an aggregate public offering price of
$750,000,000 (or the equivalent in foreign currencies or composite currencies)
on terms to be determined by market conditions at the time of sale. The Notes
and the Preferred Stock (together the "Offered Securities") may be offered
separately or together, in separate series, in amounts and at prices and terms
to be set forth in an accompanying Prospectus Supplement ("Prospectus
Supplement"). At the option of the Company, the Notes may be issued as senior
debt securities ("Senior Notes") or as subordinated debt securities
("Subordinated Notes"). The Offered Securities may be denominated in United
States dollars or, at the option of the Company, in any other currency, in a
composite currency or in amounts determined by reference to an index which is
specified in the Prospectus Supplement. The specific terms of the Offered
Securities in respect of which this Prospectus is being delivered will be set
forth in an accompanying Prospectus Supplement. The Notes may be convertible
or exchangeable into Preferred Stock or Common Stock of the Company. The
Preferred Stock may be convertible or exchangeable into Notes or Common Stock
of the Company and may be represented by Depositary Shares.
The Offered Securities may be offered and sold directly by the Company or
through one or more underwriters or agents. In addition, the Prospectus
Supplement will set forth the terms of sale of the Offered Securities and the
identity of any underwriters or agents. Any underwriters, dealers or agents
participating in any offering of the Offered Securities may be deemed
"underwriters" within the meaning of the Securities Act of 1933, as amended.
See "Plan of Distribution."
Payment of the principal of the Subordinated Notes may be accelerated only in
the case of certain events of bankruptcy, insolvency or reorganization of the
Company or the Bank. There is no right of acceleration in the case of a
default in the performance of any covenant with respect to the Subordinated
Notes, including the payment of interest or principal. See "Description of
Notes -- Events of Default."
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCU-
RACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THE OFFERED SECURITIES ARE NOT DEPOSITS OR SAVINGS ACCOUNTS OR
OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY
OR INSTRUMENTALITY.
-------------------------
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
-------------------------
The date of this Prospectus is , 1996.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus and the
Prospectus Supplement in connection with the offering made hereby, and if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or by any underwriters or agents.
Neither the delivery of this Prospectus and the Prospectus Supplement nor any
sale made thereunder shall, under any circumstances, create any implication
that information herein or therein is correct as of any time subsequent to the
date hereof or thereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected at the Commission's office at 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549, and the Commission's
Regional Offices in New York (7 World Trade Center, Suite 1300, New York, New
York 10048) and Chicago (Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511), and copies of such material can be obtained
from such facilities and the Public Reference Section of the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549, at prescribed
rates. Such material may also be accessed electronically by means of the
Commission's home page on the Internet at http://www.sec.gov. In addition,
such reports, proxy statements and other information can be inspected at the
offices of the New York and Pacific Stock Exchanges on which certain of the
Company's securities are listed. This Prospectus does not contain all
information set forth in the Registration Statement and Exhibits thereto which
the Company has filed with the Commission under the Securities Act of 1933 and
to which reference is hereby made.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference in this Prospectus the
following reports filed with the Commission pursuant to Section 13 of the Act:
(i) the Company's Annual Report on Form 10-K for the year ended December 31,
1995, (ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, June 30 and September 30, 1996; (iii) the Company's Current Reports
on Form 8-K filed on January 16, January 24, January 31, February 29, April 1,
April 5, April 10, April 16, July 16, August 9, September 20, September 23,
October 15 and November 15, 1996; and (iv) the consolidated financial
statements of First Interstate Bancorp ("First Interstate") as of December 31,
1995 and 1994 and for each of the years in the three-year period ended
December 31, 1995, as contained in First Interstate's Annual Report on Form
10-K for the year ended December 31, 1995. All documents filed by the Company
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Act subsequent to the
date of this Prospectus and prior to the termination of the offering of the
Offered Securities offered hereby shall be deemed to be incorporated by
reference into this Prospectus and to be a part hereof from the date of filing
of such documents.
Any person receiving a copy of this Prospectus may obtain without charge,
upon oral or written request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents unless such
exhibits are specifically incorporated by reference into the information that
the Prospectus incorporates. Requests should be directed to Wells Fargo &
Company, Investor/Public Relations, MAC #0163-029, 343 Sansome Street, San
Francisco, California 94163, telephone (415) 396-0560.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
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<PAGE>
WELLS FARGO & COMPANY
Wells Fargo & Company is a bank holding company registered under the Bank
Holding Company Act of 1956, as amended. On April 1, 1996, the Company
completed its acquisition of First Interstate Bancorp ("First Interstate"). On
the basis of assets as of September 30, 1996, the Company was the eighth
largest bank holding company in the United States. As of September 30, 1996,
the Company had loans of $69.2 billion, total assets of $109.2 billion, total
deposits of $83.7 billion and stockholders' equity of $14.9 billion. Its
principal subsidiary is Wells Fargo Bank, National Association (the "Bank").
The Bank is primarily engaged in retail, commercial and corporate banking,
real estate lending and trust and investment services.
The Company is a legal entity separate and distinct from the Bank and its
other affiliates. There are various legal limitations on the extent to which
the Bank may extend credit, pay dividends or otherwise supply funds to the
Company or various of its affiliates. The executive offices of the Company are
located at 420 Montgomery Street, San Francisco, California 94163. The
Company's telephone number is (415) 477-1000.
Since the Company is a holding company, the rights of the Company to
participate in any distribution of assets of any subsidiary upon its
liquidation or reorganization or otherwise (and thus the ability of holders of
the Offered Securities to benefit indirectly from such distribution) are
subject to the prior claims of creditors of that subsidiary, except to the
extent that the Company may itself be a creditor of that subsidiary. Claims on
the Company's subsidiaries by creditors other than the Company include long-
term debt and substantial obligations in respect of federal funds purchased,
securities sold under repurchase agreements and certain other short-term
borrowings, as well as deposit liabilities.
USE OF PROCEEDS
The net proceeds from the sale of the Offered Securities will be used for
general corporate purposes. Specific allocations of the proceeds to such
purposes have not been determined. The net proceeds may be used to reduce
outstanding commercial paper and other debt of the Company. Based upon the
anticipated future funding requirements of the Company and its subsidiaries,
the Company expects that it will, from time to time, engage in additional
financings of a character and in amounts to be determined and that its
commercial paper borrowings and other short-term debt may be increased above
the level prevailing after the initial use of proceeds.
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CONSOLIDATED RATIO OF EARNINGS TO FIXED CHARGES
The following sets forth the historical consolidated ratios of earnings to
fixed charges and the historical ratios of earnings to fixed charges and
preferred stock dividends of the Company for the periods indicated:
<TABLE>
<CAPTION>
QUARTER NINE MONTHS
ENDED ENDED YEAR ENDED DECEMBER 31,
SEPTEMBER 30, SEPTEMBER 30, ------------------------
1996 1996 1995 1994 1993 1992 1991
------------- ------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Consolidated Ratios of
Earnings to Fixed
Charges(1)(3)
Including interest on
deposits.............. 2.02 2.13 2.19 2.20 1.90 1.33 1.02
Excluding interest on
deposits.............. 5.34 5.46 4.56 5.04 4.53 2.56 1.10
Consolidated Ratios of
Earnings to Fixed
Charges and Preferred
Stock Dividends(1)(2)(3)
Including interest on
deposits.............. 1.91 2.02 2.09 2.07 1.77 1.26 1.00
Excluding interest on
deposits.............. 4.28 4.48 3.99 4.18 3.51 2.02 1.01
</TABLE>
- --------
(1) For purposes of computing these ratios, earnings represent income before
income tax expense plus fixed charges. Fixed charges represent interest
expense plus the estimated interest component of net rental expense.
(2) The preferred stock dividends are increased to amounts representing the
pretax earnings required to cover such dividends.
(3) These computations are included herein in compliance with Securities and
Exchange Commission regulations. However, management believes the fixed
charge ratios are not meaningful measures for the business of the Company
because of two factors. First, even if there were no change in net income,
the ratios would decline with an increase in the proportion of income
which is tax-exempt or, conversely, they would increase with a decrease in
the proportion of income which is tax-exempt. Second, even if there were
no change in net income, the ratios would decline if interest income and
interest expense increase by the same amount due to an increase in the
level of interest rates or, conversely, they would increase if interest
income and interest expense decrease by the same amount due to a decrease
in the level of interest rates.
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DESCRIPTION OF NOTES
The Senior Notes will be issued under an Indenture, dated as of September 1,
1984, as amended by the First Supplemental Indenture dated as of April 15,
1986, the Second Supplemental Indenture dated as of June 30, 1987, and the
Third Supplemental Indenture dated as of January 23, 1991 (together, the
"Senior Indenture"), between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as successor Trustee (the "Senior
Trustee"). The Subordinated Notes will be issued under an Indenture dated as
of December 10, 1992 (the "Subordinated Indenture"), between the Company and
Marine Midland Bank, as Trustee (the "Subordinated Trustee"). In this
Prospectus, the Senior Indenture and the Subordinated Indenture are referred
to as the "Indentures." The Senior Trustee and the Subordinated Trustee are
referred to as the "Trustees." As used in this Prospectus, the term "Senior
Notes" means the Senior Notes offered hereby and, unless the context otherwise
requires, any other debt securities heretofore or hereafter issued under the
Senior Indenture, the term "Subordinated Notes" means the Subordinated Notes
offered hereby and, unless the context otherwise requires, any other debt
securities heretofore or hereafter issued under the Subordinated Indenture,
and the term "Notes" means the Notes offered hereby and, unless the context
otherwise requires, any other debt securities heretofore or hereafter issued
under the Indentures; and references to "principal" of the Notes shall be
deemed to include, unless the context otherwise requires, a reference to
premium, if any, on the Notes. Copies of the Indentures and the forms of the
Notes are filed or incorporated by reference as exhibits to the Registration
Statement. The following summaries of certain provisions of the Indentures and
the summary of certain provisions of a particular series of Notes set forth in
the Prospectus Supplement relating thereto do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all the
provisions of the Indentures and the respective forms of the Notes, including
the definitions therein of certain terms. Whenever particular Sections,
Articles or defined terms of the Indentures are referred to, it is intended
that such Sections, Articles or defined terms shall be incorporated herein by
reference.
GENERAL
The Indentures do not limit the amount of debt securities which can be
issued thereunder and provide that debt securities of any series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indentures do not limit the amount of other
indebtedness or securities which may be issued by the Company. The Notes may
be issued at various times with different maturity dates and different
principal repayment provisions, may bear interest at different rates, may be
payable in currencies other than United States dollars, in composite
currencies or in amounts determined by reference to an index and may otherwise
vary, all as provided in the Indentures.
The Prospectus Supplement will set forth the following specific terms
regarding the series of Notes offered thereby: (i) the designation and
aggregate principal amount of Notes of such series; (ii) the ranking of the
Notes as Senior Notes or Subordinated Notes; (iii) the percentage of their
principal amount at which such Notes will be issued; (iv) the date or dates on
which such Notes will mature, if any; (v) the rate per annum or the method of
determining the rate or rates per annum, if any, at which such Notes will bear
interest; (vi) the dates from and on which such interest, if any, will accrue
and be payable and the designated record dates for such interest payments;
(vii) the currency (which may be a composite currency) in which payment of
principal and interest, if any, shall be payable if other than United States
dollars; (viii) the index, if any, upon which the amount of principal or
interest is determined; (ix) any redemption terms; (x) any conversion or
exchange provisions; (xi) provisions for issuance of global securities; and
(xii) other specific terms. If so indicated in the applicable Prospectus
Supplement, the terms of the Notes offered thereby may differ from those set
forth herein.
Some of the Notes may be issued as discounted Notes (bearing no interest or
interest at a rate which at the time of issuance is below market rates) to be
sold at a discount below their stated principal amount. Some of the Notes may
be perpetual and have no stated maturity. Federal income tax consequences and
other special considerations applicable to such perpetual or discounted Notes
will be described in the Prospectus Supplement relating thereto.
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<PAGE>
Interest on the Notes of any series will be payable to the persons in whose
names the Notes are registered at the close of business on the record date
designated for an interest payment date (Section 2.03). The Notes may be
presented for the payment of principal and interest, if any, transfer and
exchange at the offices or agencies of the Company maintained for such
purposes in San Francisco and New York City. Payment of any installment of
interest may be made at the option of the Company by check, mailed to the
address of the person entitled thereto as it appears on the Register of the
Notes of such series (Sections 2.05, 4.01 and 4.02). The Notes will be issued
in fully registered form, without coupons, in denominations of $1,000 and any
whole multiple of $1,000, unless different authorized denominations are stated
in the Prospectus Supplement. No service charge will be made for any exchange
or registration of transfer of a Note, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge (Section 2.05).
The Indentures provide that if a series of Notes is denominated in a currency
other than United States dollars or in a composite currency, in the absence of
a contrary provision in the Notes any action or distribution under the
Indentures will be based on the relative amount of United States dollars that
could be obtained on such reasonable basis of exchange on such date as is
specified by the Company to the Trustee (Sections 14.10 of the Senior
Indenture and 16.10 of the Subordinated Indenture).
All of the Notes will be unsecured general obligations of the Company. The
Senior Notes will not be subordinated in right of payment to any other
indebtedness of the Company. Unless otherwise set forth in the applicable
Prospectus Supplement, neither the Indentures nor the Notes contain provisions
which would afford holders of the Notes protection in the event of a takeover,
recapitalization or similar restructuring involving the Company which could
adversely affect the Notes.
SUBORDINATION OF SUBORDINATED NOTES
The obligation of the Company to make any payment on account of the
principal of and interest on the Subordinated Notes of any series will be
subordinate and junior in right of payment to the Company's obligations to the
holders of Senior Indebtedness of the Company to the extent described in the
next paragraph. Senior Indebtedness of the Company includes the Senior Notes
and means (i) any indebtedness of the Company for borrowed or purchased money,
whether or not evidenced by bonds, debentures, notes or other written
instruments, (ii) obligations under letters of credit, (iii) any indebtedness
or other obligations of the Company with respect to commodity contracts,
interest rate and currency swap agreements, cap, floor and collar agreements,
currency spot and forward contracts, and other similar agreements or
arrangements designed to protect against fluctuations in currency exchange or
interest rates, and (iv) any guarantees, endorsements (other than by
endorsement of negotiable instruments for collection in the ordinary course of
business) or other similar contingent obligations in respect of obligations of
others of a type described in (i), (ii) or (iii) above, whether or not such
obligation is classified as a liability on a balance sheet prepared in
accordance with generally accepted accounting principles, in each case listed
in (i), (ii), (iii) and (iv) above, whether outstanding on the date of
execution of the Subordinated Indenture or thereafter incurred, other than
obligations "ranking on a parity" with the Subordinated Notes or "ranking
junior" to the Subordinated Notes (as those terms are defined in the
Subordinated Indenture) (Section 1.01). The definition of senior indebtedness
in certain previously issued subordinated debt of the Company (the "Prior
Subordinated Debt", which term excludes any Subordinated Notes issued under
the Subordinated Indenture) includes only indebtedness of or guaranteed by the
Company for borrowed money and any deferred obligation for the payment of the
purchase price of property or assets, other than obligations ranking on a
parity with or junior to such subordinated indebtedness. As a result of this
difference, the holders of Subordinated Notes are subordinated to greater
amounts of senior indebtedness of the Company than holders of such Prior
Subordinated Debt and, under the circumstances described in the following
paragraph, holders of Subordinated Notes may receive less, ratably, than
holders of such Prior Subordinated Debt. As of September 30, 1996, there was
$2.5 billion of Senior Indebtedness of the Company and $2.9 billion of
obligations ranking on a parity (as defined in the Subordinated Indenture)
with the Subordinated Notes. The Subordinated Indenture does not limit the
amount of Senior Indebtedness of the Company.
In the case of any insolvency, receivership, conservatorship,
reorganization, readjustment of debt, marshalling of assets and liabilities or
similar proceedings or any liquidation or winding-up of or relating to the
6
<PAGE>
Company as a whole, whether voluntary or involuntary, all obligations of the
Company to holders of Senior Indebtedness of the Company shall be entitled to
be paid in full before any payment shall be made on account of the principal
of or interest on the Subordinated Notes. In the event of any such proceeding,
after payment in full of all sums owing with respect to Senior Indebtedness of
the Company, the holders of the Subordinated Notes, together with the holders
of any obligations of the Company ranking on a parity with the Subordinated
Notes, shall be entitled to be paid from the remaining assets of the Company
the amounts at the time due and owing on account of unpaid principal of and
interest on the Subordinated Notes before any payment or other distribution,
whether in cash, property or otherwise, shall be made on account of any
capital stock or any obligations of the Company ranking junior to the
Subordinated Notes (Section 14.01). By reason of such subordination, in the
event of the insolvency of the Company, holders of Senior Indebtedness of the
Company may receive more, ratably, and holders of the Subordinated Notes
having a claim pursuant to the Subordinated Notes may receive less, ratably,
than the other creditors of the Company. Such subordination will not prevent
the occurrence of any Event of Default in respect of the Subordinated Notes
(Section 14.10).
GLOBAL SECURITIES
The Notes of a series may be issued in whole or in part in the form of one
or more global securities ("Global Security") that will be deposited with, or
on behalf of, a depositary identified in the Prospectus Supplement relating to
such series. Global Securities will be issued in registered form and in either
temporary or definitive form. Unless and until it is exchanged in whole or in
part for Notes in definitive form, a Global Security may not be transferred
except as a whole by the depositary for such Global Security to a nominee of
such depositary or by a nominee of such depositary to such depositary or
another nominee of such depositary or by such depositary or any such nominee
to a successor of such depositary or a nominee of such successor (Sections
2.02 and 2.05).
The specific terms of the depositary arrangement with respect to any Notes
of a series will be described in the Prospectus Supplement relating to such
series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Global Security, the depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Notes represented by such Global Security
to the accounts of institutions that have accounts with such depositary
("Participants"). The accounts to be credited shall be designated by the
underwriters of such Notes, by certain agents of the Company or by the
Company, if such Notes are offered and sold directly by the Company. Ownership
of beneficial interests in a Global Security will be limited to Participants
or persons that may hold interests through Participants. Ownership of
beneficial interests in such Global Security will be shown on, and the
transfer of that ownership will be effected only through, records maintained
by the depositary with respect to Participants' interests in such Global
Security or by Participants or by persons that hold through Participants with
respect to beneficial owners' interests. The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such ownership limits and such laws may impair the ability to
transfer beneficial interests in a Global Security.
So long as the depositary for a Global Security, or its nominee, is the
holder of such Global Security, such depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Notes represented
by such Global Security for all purposes under the Indenture governing such
Notes. Except as set forth below, owners of beneficial interests in a Global
Security will not be entitled to have Notes of the series represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Notes of such series in definitive form and will
not be considered the owners or holders thereof under the Indenture governing
such Notes.
Principal and interest payments on Notes registered in the name of or held
by a depositary or its nominee will be made to the depositary or its nominee,
as the case may be, as the registered owner of the Global Security
representing such Notes. The Company expects that the depositary for Notes of
a series, upon receipt of any
7
<PAGE>
payment of principal or interest in respect of a Global Security, will
immediately credit Participants' accounts with payments in amounts
proportionate to their respective beneficial interests in the principal amount
of such Global Security as shown on the records of such depositary. The
Company also expects that payments by Participants or persons who hold
interests through Participants to owners of beneficial interests in such
Global Security held through such Participants or persons will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such Participants or persons.
None of the Company, the Trustee for such Notes, any paying agent or any
registrar for such Notes will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Global Security for such Notes or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
If a depositary for Notes of a series is at any time unwilling or unable to
continue as depositary and a successor depositary is not appointed by the
Company within 90 days, the Company will issue Notes of such series in
definitive form in exchange for the Global Security or Securities representing
the Notes of such series. In addition, the Company may at any time and in its
sole discretion determine not to have any Notes of a series represented by one
or more Global Securities and, in such event, will issue Notes of such series
in definitive form in exchange for the Global Security or Securities
representing such Notes.
CONVERSION AND EXCHANGE
The terms, if any, on which Notes of any series are convertible into or
exchangeable for Common Stock or Preferred Stock will be set forth in the
Prospectus Supplement relating thereto. Such terms may include provisions for
conversion or exchange, either mandatory, at the option of the holder, or at
the option of the Company, in which the number of shares of Common Stock or
Preferred Stock to be received by the holders of Notes would be calculated
according to the market price of Common Stock or Preferred Stock as of a time
stated in the Prospectus Supplement relating thereto.
LIMITATION ON SALE OR ISSUANCE OF CAPITAL STOCK OR CONVERTIBLE SECURITIES OF,
AND MERGER OR SALE OF ASSETS BY, THE BANK
The Senior Indenture contains a covenant that (i) the Company will not, and
will not permit the Bank to issue, sell, transfer, assign, pledge or otherwise
dispose of any shares of Capital Stock of any class of the Bank or any
securities convertible or exchangeable into shares of Capital Stock of any
class of the Bank, unless, after giving effect to such transaction and to
shares issuable upon conversion or exchange of outstanding securities
convertible or exchangeable into such Capital Stock (including such
securities, if any, which may be the subject of such transaction), at least
80% of the outstanding shares of Capital Stock of each class of the Bank shall
be owned at that time directly or indirectly by the Company; and (ii) the
Company will not permit the Bank to merge or consolidate or convey or transfer
all or substantially all of its assets, unless at least 80% of the outstanding
shares of Capital Stock of each class (after giving effect to such transaction
and to shares issuable upon conversion or exchange of outstanding securities
convertible or exchangeable into Capital Stock, including such securities, if
any, which may be issued in such transaction) of the surviving corporation in
the case of merger or consolidation or of the transferee corporation in the
case of a conveyance or transfer shall be owned at that time directly or
indirectly by the Company (Section 4.07 of the Senior Indenture). There is no
similar covenant in the Subordinated Indenture.
EVENTS OF DEFAULT
An Event of Default with respect to any series of Senior Notes is defined in
the Senior Indenture as being: (a) default for 30 days in payment of any
installment of interest on Senior Notes of such series; (b) default in payment
of any principal on Senior Notes of such series; (c) default by the Company in
performance in any material respect of any of the covenants or agreements in
the Senior Notes or in the Senior Indenture specifically contained therein for
the benefit of the Senior Notes of such series which shall not have been
remedied for a
8
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period of 90 days after written notice to the Company by the Trustee or to the
Company and the Trustee by the holders of not less than 25% in principal
amount of the Senior Notes of such series and all other series so benefited
(all such series voting as one class) then outstanding; or (d) certain events
of bankruptcy, insolvency or reorganization of the Company or of the Bank
(Section 6.01 of the Senior Indenture). No Event of Default described in
clause (a), (b) or (c) above with respect to a particular series of Senior
Notes necessarily constitutes an Event of Default with respect to any other
series of Senior Notes. In addition, the Senior Indenture also defines an
Event of Default with respect to any series of Senior Notes as being default
in the payment of any indebtedness for borrowed money of the Company
(including a default with respect to Senior Notes of any series other than
such series) or of the Bank in principal amount in excess of $1,000,000 and
the expiration of any period of grace with respect thereto, or the occurrence
of any event of default as defined in any mortgage, indenture or instrument
(including the Senior Indenture) evidencing, securing or under which there is
issued any indebtedness for borrowed money of the Company or of the Bank in
principal amount in excess of $1,000,000 that results in the acceleration of
such indebtedness, and such default in payment is not cured or such
acceleration is not rescinded or annulled within 10 days after written notice
to the Company by the Trustee or to the Company and the Trustee by the holders
of not less than 25% in principal amount of all Senior Notes then outstanding
(all series voting as one class), provided that so long as the Company or the
Bank, as the case may be, is contesting in good faith such default in payment
or event of default and the Company delivers to the Trustee a certificate that
the Company or the Bank, as the case may be, is contesting in good faith the
existence of such payment default or event of default, then no Event of
Default shall be deemed to exist under this clause; such Event of Default is
herein called a "Cross Default."
The Senior Indenture provides that if an Event of Default under clause (a),
(b) or (c) above shall have occurred and be continuing (but only if, in the
case of clause (c), the Event of Default is with respect to less than all
series of Senior Notes then outstanding under such Indenture), either the
Trustee or the holders of not less than 25% in principal amount of the then
outstanding Senior Notes of the series as to which the Event of Default has
occurred (each such series voting as a separate class in the case of an Event
of Default under clause (a) or (b), and all such series voting as one class in
the case of an Event of Default under clause (c)) may declare the principal
(or portion thereof specified in the terms of such series) of all the Senior
Notes of such series, or of all such series in the case of an Event of Default
under clause (c) above, in each case together with any accrued interest, to be
due and payable immediately. The Senior Indenture also provides that if an
Event of Default under clause (c) or (d) above or the Cross Default clause
shall have occurred and be continuing (but only if, in the case of clause (c),
the Event of Default is with respect to all the Senior Notes then outstanding
under the Senior Indenture), either the Trustee or the holders of not less
than 25% in principal amount of all the Senior Notes then outstanding (voting
as one class) may declare the principal (or portion thereof specified in the
terms of any series) of all the Senior Notes, together with any accrued
interest, to be due and payable immediately. Upon certain conditions, such
declaration (including a declaration caused by a default in the payment of
principal or interest, the payment for which has subsequently been provided)
may be annulled by the holders of a majority in principal amount of the Senior
Notes of the series then outstanding as were entitled to declare such default
(such series or all series voting as one class, if more than one series is so
entitled). In addition, past defaults may be waived by the holders of a
majority in principal amount of the Senior Notes of all series then
outstanding (all series voting as one class), except a default in the payment
of principal of or interest on the Senior Notes or in respect of a covenant or
provision of the Senior Indenture which cannot be modified or amended without
the consent of the holder of each Senior Note so affected (Sections 6.01 and
6.06 of the Senior Indenture).
An Event of Default with respect to any series of Subordinated Notes is
defined in the Subordinated Indenture as being: (a) default for 30 days in
payment of any installment of interest on Subordinated Notes of such series;
(b) default in payment of any principal on Subordinated Notes of such series;
(c) default by the Company in performance in any material respect of any of
the covenants or agreements in the Subordinated Notes or in the Subordinated
Indenture specifically contained therein for the benefit of the Subordinated
Notes of such series which shall not have been remedied for a period of 90
days after written notice to the Company by the Trustee or to the Company and
the Trustee by the holders of not less than 25% in principal amount of the
Subordinated Notes of such series and all other series so benefited (all such
series voting as one class) then
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<PAGE>
outstanding; or (d) certain events of bankruptcy, insolvency or reorganization
of the Company or the Bank (Section 6.01 of the Subordinated Indenture). No
Event of Default described in clause (a), (b) or (c) above with respect to a
particular series of Subordinated Notes necessarily constitutes an Event of
Default with respect to any other series of Subordinated Notes. No Event of
Default described in clause (a), (b) or (c) above permits acceleration of the
payment of principal of the Subordinated Notes. The Subordinated Indenture
provides that if an Event of Default under clause (d) above shall have
occurred and be continuing, either the Trustee or the holders of not less than
25% in principal amount of all the then outstanding Subordinated Notes of each
series as to which such Event of Default has occurred (voting as one class)
may declare the principal (or a portion thereof specified in the terms of any
series) of all Subordinated Notes as to which such Event of Default under
clause (d) has occurred, together with any accrued interest, to be due and
payable immediately. Upon certain conditions, such declaration may be annulled
by a majority in principal amount of the Subordinated Notes of the series then
outstanding as were entitled to declare such Event of Default (such series or
all series voting as one class, if more than one series is so entitled). In
addition, past defaults may be waived by the holders of a majority in
principal amount of the Subordinated Notes of all series then outstanding as
to which the default has occurred (all series voting as one class), except a
default in the payment of principal or interest on any such Subordinated Notes
or in respect of a covenant or provision of the Subordinated Indenture which
cannot be modified or amended without the consent of the holder of each
Subordinated Note so affected (Sections 6.01 and 6.06 of the Subordinated
Indenture).
As a result of the provisions stated in the prior paragraph, the
Subordinated Indenture does not provide for any right to accelerate the
payment of principal of the Subordinated Notes upon a default in payment of
principal or interest or in the performance of any covenant or agreement in
the Subordinated Notes or the Subordinated Indenture, or upon a default in the
payment or acceleration of other indebtedness of the Company. In the case of a
default in the payment of principal or interest, the Trustee, subject to
certain limitations and conditions, may institute judicial proceedings to
enforce payment of such principal or interest (Section 6.02 of the
Subordinated Indenture).
Each Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care,
to be indemnified by the holders of Notes issued under such Indenture before
proceeding to exercise any right or power under the Indenture at the request
of such holders (Section 7.02). Each Indenture also provides that the holders
of a majority in principal amount of the outstanding Notes issued thereunder
of all series affected (voting as one class) may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Notes of such series (Section 6.06).
Each Indenture contains a covenant that the Company will file annually with
the Trustee a certificate as to the absence of any default or specifying any
default that exists (Section 4.06).
MODIFICATION OF THE INDENTURE AND WAIVER
Each Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than 66 2/3% in principal amount
of the Notes of all series then outstanding under such Indenture affected by
such supplemental indenture (voting as one class), to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of such Indenture or modifying the rights of the holders of Notes
of each such series, except that no such supplemental indenture may (i) extend
the fixed maturity of any Notes, or reduce the rate or extend the time of
payment of any interest thereon or on any overdue principal amount, or reduce
the principal amount thereof, or reduce any amount payable upon any redemption
thereof, or change the currency of payment of principal of or any interest
thereon or on any overdue principal amount, without the consent of the holder
of each Note so affected, or (ii) reduce the aforesaid percentage of Notes,
the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all outstanding Notes under
such Indenture (Section 10.02).
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Each Indenture provides that the Company may omit in any particular instance
to comply with any covenant or condition specifically contained in such
Indenture for the benefit of one or more series of Notes (including in the
case of the Senior Indenture, the covenant described above under "Limitation
on Sale or Issuance of Capital Stock or Convertible Securities of, and Merger
or Sale of Assets by, the Bank") if before the time for such compliance the
holders of a majority in principal amount of the Notes of all series then
outstanding under such Indenture, and, in the case of the Subordinated
Indenture, affected by the omission (voting as one class) waive such
compliance in such instance, but such waiver shall not extend to or affect
such covenant or condition except to the extent so expressly waived (Section
4.08 of the Senior Indenture and Section 4.07 of the Subordinated Indenture).
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that the Company may not merge or consolidate or
sell or convey all or substantially all of its assets unless the successor
corporation (if other than the Company) is a domestic corporation, assumes the
Company's obligations under such Indenture and on the Notes issued under such
Indenture, and, after giving effect to such transaction, the Company or the
successor corporation would not be in default under such Indenture (Section
11.01).
CONCERNING THE TRUSTEES
The Chase Manhattan Bank (formerly known as Chemical Bank) is the successor
Trustee under the Senior Indenture. Notices to the Senior Trustee should be
directed to The Chase Manhattan Bank, Corporate Trust Department, 450 West
33rd Street, New York, New York 10001, Attention: Vice President. The Company
and the Bank maintain deposit accounts and conduct other banking transactions
with the Senior Trustee in the ordinary course of business. Marine Midland
Bank is the Trustee under the Subordinated Indenture. Notices to the
Subordinated Trustee should be directed to Marine Midland Bank, 140 Broadway,
New York, New York 10015, Attention: Vice President -- Corporate Trust
Administration. The Bank has entered into correspondent banking relationships
with the Subordinated Trustee and with its corporate parent, The Hong Kong and
Shanghai Banking Corporation Limited ("HSBC"), involving various banking
transactions in the ordinary course of business. As part of their
relationship, the Bank and HSBC have an arrangement providing for the referral
of customers to each other. The Company and the parent of HSBC have
established a jointly owned trade bank with principal offices in San Francisco
called Wells Fargo HSBC Trade Bank, N.A.
DESCRIPTION OF PREFERRED STOCK
The following description of Preferred Stock sets forth certain general
terms and provisions of the series of Preferred Stock to which any Prospectus
Supplement may relate. The specific terms of a particular series of Preferred
Stock will be described in the Prospectus Supplement relating to such series
of Preferred Stock. If so indicated in the Prospectus Supplement relating
thereto, the terms of any such series of Preferred Stock may differ from the
terms set forth below. The description of Preferred Stock set forth below and
the description of the terms of a particular series of Preferred Stock set
forth in the Prospectus Supplement relating thereto do not purport to be
complete and are qualified in their entirety by reference to the Company's
Restated Certificate of Incorporation, as amended (the "Certificate of
Incorporation"), and the Certificate of Designation relating to such series of
Preferred Stock, which are filed or incorporated by reference as an exhibit to
the Registration Statement of which this Prospectus is a part.
GENERAL
The Company is authorized to issue 25,000,000 shares of Preferred Stock. The
Board of Directors has the authority to issue Preferred Stock in one or more
series and to fix the specific number of shares, title, liquidation preference
of each share, issue price, dividend rate or rates (or method of calculation),
dividend periods, dividend payment dates, any redemption or sinking fund
provisions, any conversion provisions and any other specific
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terms of any series without any further action by stockholders of the Company
unless action is required by applicable laws or regulations or by the terms of
other outstanding preferred stock. As of the date of this Prospectus, the
Company had five series of Preferred Stock outstanding consisting of 1,500,000
shares of Adjustable Rate Cumulative Preferred Stock, Series B ("Adjustable
Rate Preferred Stock"), 477,500 shares of 9% Preferred Stock, Series C ("9%
Preferred Stock") represented by 9,550,000 Depositary Shares each representing
a one-twentieth interest in a share of 9% Preferred Stock, 350,000 shares of 8
7/8% Preferred Stock, Series D (the "8 7/8% Preferred Stock" and together with
the 9% Preferred Stock, the "Fixed Rate Preferred Stock") represented by
7,000,000 Depositary Shares each representing a one-twentieth interest in a
share of 8 7/8% Preferred Stock, 750,000 shares of 9% Preferred Stock, Series
G ("9% Series G Preferred Stock") represented by 6,000,000 Depositary Shares
each representing a one-eighth interest in a share of 9% Series G Preferred
Stock and 4,000,000 shares of Fixed/Adjustable Rate Non-cumulative Preferred
Stock, Series H (the "Fixed/Adjustable Rate Preferred Stock"). The Adjustable
Rate Preferred Stock has a liquidation preference of $50 per share, the Fixed
Rate Preferred Stock has a liquidation preference of $500 per share or $25 per
Depositary Share, the 9% Series G Preferred Stock has a liquidation preference
of $200 per share or $25 per Depositary Share and the Fixed/Adjustable Rate
Preferred Stock has a liquidation preference of $50 per share. The 9%
Preferred Stock has been called for redemption by the Company on December 31,
1996. See "Description of Capital Stock -- Existing Preferred Stock." Unless
otherwise specified in the Prospectus Supplement relating thereto, the shares
of each series of Preferred Stock will rank on a parity as to dividends and
distributions of assets with each other and with the Adjustable Rate Preferred
Stock, the Fixed Rate Preferred Stock and the New Wells Fargo Preferred Stock.
The Company may call the other series of Preferred Stock for redemption on
dates from the date of this Prospectus to October 1, 2001.
The Prospectus Supplement will set forth the following specific terms
regarding the series of Preferred Stock offered thereby: (i) the designation,
number of shares and liquidation preference per share; (ii) the initial public
offering price; (iii) the dividend rate or rates, or the method of determining
the dividend rate or rates; (iv) the index, if any, upon which the amount of
dividends, if any, is determined; (v) the dates on which dividends, if any,
will accrue and be payable and the designated record dates for determining the
holders entitled to such dividends; (vi) any redemption or sinking fund
provisions; (vii) any conversion or exchange provisions; (viii) whether the
Company has elected to offer Depositary Shares as described under "Description
of Depositary Shares"; (ix) provisions for issuance of global securities; (x)
the currency (which may be composite currency) in which payment of dividends,
if any, shall be payable if other than United States dollars; (xi) voting
rights, if different from those described under "Description of Preferred
Stock -- Voting Rights"; and (xii) any additional terms, preferences or
rights.
As described under "Description of Depositary Shares," the Company may, at
its option, elect to offer depositary shares ("Depositary Shares") evidenced
by depositary receipts ("Depositary Receipts"), each representing a fractional
interest (to be specified in the Prospectus Supplement relating to the
particular series of the Preferred Stock) in a share of the particular series
of the Preferred Stock issued and deposited with a Depositary (as defined
below).
Under regulations adopted by the Board of Governors of the Federal Reserve
System (the "Federal Reserve Board"), if the holders of shares of any series
of preferred stock of the Company become entitled to vote for the election of
directors because the Board of Directors of the Company has failed to declare
or pay dividends on such series (see "Description of Preferred Stock Voting
Rights"), such series may then be deemed a class of "voting securities" and a
holder of 25 percent or more of such series (or a holder of five percent or
more if it otherwise exercises a "controlling influence" over the Company) may
then be subject to regulation as a bank holding company in accordance with the
Bank Holding Company Act of 1956, as amended. In addition, at such time as
such series is deemed a class of voting securities, any other bank holding
company may be required to obtain the prior approval of the Federal Reserve
Board to acquire five percent or more of such series and any person other than
a bank holding company may be required to obtain the prior approval of the
Federal Reserve Board to acquire ten percent or more of such series.
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The shares of Preferred Stock will, when issued, be fully paid and
nonassessable and will have no preemptive rights.
The transfer agent, registrar, dividend disbursing agent and redemption
agent for the Preferred Stock will be specified in the Prospectus Supplement
relating thereto.
DIVIDENDS
The holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds legally available therefor, cumulative or non-cumulative cash or
other dividends at such rate or rates and on such dates as will be set forth
in the Prospectus Supplement relating to such series. Such rates may be fixed
or variable or both. If variable, the formula used for determining the
dividend rate for each dividend period will be set forth in the Prospectus
Supplement. Dividends will be payable to the holders of record as they appear
on the stock books of the Company on such record dates as will be fixed by the
Board of Directors of the Company and specified in the Prospectus Supplement.
If the Board of Directors of the Company fails to declare a dividend payable
on a dividend payment date on any series of the Preferred Stock for which
dividends are noncumulative ("Noncumulative Preferred Stock"), then the
holders of such series of the Preferred Stock will have no right to receive a
dividend in respect of the dividend period ending on such dividend payment
date, and the Company will have no obligation to pay a dividend for such
period, whether or not dividends on such series are declared payable on any
future dividend payment dates.
No dividends may be declared in respect of any dividend period on any other
series or class of preferred stock ranking on a parity as to dividends with
the Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred
Stock or New Wells Fargo Preferred Stock unless full cumulative dividends on
all outstanding shares of each series of Preferred Stock on which dividends
are cumulative and on the Adjustable Rate Preferred Stock, the Fixed Rate
Preferred Stock and the New Wells Fargo Preferred Stock shall have been paid
in full or contemporaneously are declared and paid through the most recent
dividend payment date, unless otherwise indicated in the Prospectus
Supplement. In the event that full cumulative dividends on such Preferred
Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock or New
Wells Fargo Preferred Stock have not been declared and paid or set apart when
due, the Company may not declare or pay any dividends on, or make other
distributions on or make any payment on account of the purchase, redemption,
or other retirement, of its Common Stock or any other stock of the Company
ranking as to dividends or upon liquidation junior to such Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock or New Wells Fargo
Preferred Stock (other than, in the case of dividends or distributions,
dividends or distributions paid in shares of, or options, warrants or rights
to subscribe for or purchase shares of, Common Stock or such other junior
ranking stock), until full cumulative dividends on such Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and New Wells
Fargo Preferred Stock are made or set apart for payment, unless otherwise
indicated in the Prospectus Supplement.
When dividends are not paid in full upon any series of Preferred Stock, the
Adjustable Rate Preferred Stock, the Fixed Rate Preferred Stock, the New Wells
Fargo Preferred Stock and any other preferred stock ranking on a parity
therewith all dividends declared or made upon shares of Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock, New Wells Fargo
Preferred Stock and any other series of preferred stock ranking on a parity
therewith shall be declared pro rata so that the amount of dividends declared
per share on Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate
Preferred Stock, New Wells Fargo Preferred Stock and such other preferred
stock shall in all cases bear to each other the same ratio that accrued
dividends per share (which, in the case of Noncumulative Preferred Stock,
shall not include any accumulation in respect of unpaid dividends for prior
dividend periods) on shares of each series of the Preferred Stock, Adjustable
Rate Preferred Stock, Fixed Rate Preferred Stock, New Wells Fargo Preferred
Stock and such other preferred stock bear to each other. No interest shall be
payable in respect of any dividend payment which may be in arrears unless
otherwise indicated in the Prospectus Supplement.
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REDEMPTION
The shares of any series of Preferred Stock may be redeemable at the option
of the Company and may be subject to mandatory redemption pursuant to a
sinking fund or otherwise, in each case upon the terms, on the date or dates
and at the redemption price or prices set forth in the Prospectus Supplement
relating to such series. If fewer than all shares of Preferred Stock are to be
redeemed, the shares to be redeemed shall be selected by the Company pro rata
or by lot, or by any other method determined by the Board of Directors to be
equitable.
Under regulations of the Federal Reserve Board, any perpetual preferred
stock with a feature permitting redemption at the option of the issuer may
qualify as Tier 1 capital only if the redemption is subject to prior approval
of the Federal Reserve Board. Therefore, any redemption of Preferred Stock at
the option of the Company will require the prior approval of the Federal
Reserve Board in order for the Preferred Stock to qualify as Tier 1 capital
for bank regulatory purposes.
If any dividends on shares of any series of Preferred Stock are in arrears,
no shares of Common Stock or shares of capital stock ranking junior to or on
parity with the Preferred Stock shall be redeemed and no shares of such series
of Preferred Stock shall be redeemed unless all outstanding shares of such
series are simultaneously redeemed, and the Company shall not purchase or
otherwise acquire any shares of such series; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of such
series pursuant to a purchase or exchange offer made on the same terms to
holders of all outstanding shares of such series.
Notice of redemption shall be given by mailing the same to each record
holder of the shares to be redeemed, not less than 40 nor more than 70 days
prior to the date fixed for redemption thereof (and, in the case of New Wells
Fargo Preferred Stock, not less than 40 nor more than 60 days' notice), to the
respective addresses of such holders as the same shall appear on the Company's
stock books. Each such notice shall state: (i) the redemption date; (ii) the
number of shares and series of the Preferred Stock to be redeemed; (iii) the
redemption price and the manner in which such redemption price is to be paid
and delivered; (iv) the place or places where certificates for such shares of
Preferred Stock are to be surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease to accrue on such
redemption date. If fewer than all shares of any series of the Preferred Stock
held by any holder are to be redeemed, the notice mailed to such holder shall
also specify the number of shares to be redeemed from such holder.
If notice of redemption has been given, from and after the redemption date
for the shares of the series of the Preferred Stock called for redemption
(unless default shall be made by the Company in providing money for the
payment of the redemption price of the shares so called for redemption),
dividends on the shares of Preferred Stock so called for redemption will cease
to accrue, any right to convert the shares of Preferred Stock will terminate,
such shares will no longer be deemed to be outstanding, and all rights of the
holders thereof as stockholders of the Company (except the right to receive
the redemption price) will cease. Upon surrender in accordance with such
notice of the certificates representing any shares so redeemed (properly
endorsed or assigned for transfer, if the Board of Directors of the Company
will so require and the notice shall so state), the redemption price set forth
above will be paid out of funds provided by the Company. If fewer than all of
the shares represented by any such certificate are redeemed, a new certificate
will be issued representing the unredeemed shares without cost to the holder
thereof.
LIQUIDATION PREFERENCE
Upon any liquidation, dissolution or winding up of the Company, the holders
of shares of each series of Preferred Stock and of the Adjustable Rate
Preferred Stock, the Fixed Rate Preferred Stock and the New Wells Fargo
Preferred Stock shall be entitled to receive out of the assets of the Company
available for distribution to stockholders, before any distribution of assets
is made to or set apart for the holders of Common Stock or of any other shares
of stock of the Company ranking as to such a distribution junior to the shares
of such series, with respect to the Preferred Stock, an amount described in
the Prospectus Supplement relating to such series of Preferred Stock, and with
respect to the Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and
New
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Wells Fargo Preferred Stock, an amount equal to the liquidation value of such
shares. See "Description of Capital Stock -- Existing Preferred Stock." If, in
any case of any such liquidation, dissolution or winding up of the Company,
the assets of the Company or the proceeds thereof shall be insufficient to pay
in full the amounts payable with respect to shares of each series of Preferred
Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and New
Wells Fargo Preferred Stock and any other shares of stock of the Company
ranking as to any such distribution on a parity therewith, the holders of
shares of such series of Preferred Stock, Adjustable Rate Preferred Stock,
Fixed Rate Preferred Stock and New Wells Fargo Preferred Stock and of such
other shares will share ratably in any such distribution of assets of the
Company in proportion to the full respective preferential amounts to which
they are entitled. After payment to the holders of shares of such series of
Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock
and New Wells Fargo Preferred Stock of the full preferential amounts to which
they are entitled, the holders of shares of such series of Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and New Wells
Fargo Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company, unless otherwise provided in the
Prospectus Supplement. A consolidation or merger of the Company with one or
more corporations shall not be deemed to be a liquidation, dissolution or
winding up of the Company.
CONVERSION AND EXCHANGE
The terms, if any, on which shares of any series of Preferred Stock are
convertible into or exchangeable for Notes or Common Stock will be set forth
in the Prospectus Supplement relating thereto. Such terms may include
provisions for conversion or exchange, either mandatory, at the option of the
holder, or at the option of the Company, in which the number of shares of
Common Stock to be received by the holders of Preferred Stock would be
calculated according to the market price of Common Stock as of a time stated
in the Prospectus Supplement.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as expressly required by
applicable law, the holders of Preferred Stock will not be entitled to vote.
On matters on which holders of such series and holders of any other series
of Preferred Stock are entitled to vote as a single class, each full share of
any series of the Preferred Stock shall be entitled to one vote. Therefore,
the voting power of such series will depend on the number of shares in such
series, not the liquidation preference or initial offering price of the shares
of such series of the Preferred Stock. However, as more fully described under
"Description of Depositary Shares," if the Company elects to provide for the
issuance of Depositary Shares representing fractional interests in a share of
a series of the Preferred Stock, the holders of each such Depositary Share
will, in effect, be entitled through the Depositary to such fraction of a
vote, rather than a full vote. To the extent the Depositary does not receive
specific instructions from the holders of Depositary Shares relating to such
Preferred Stock, it will vote such shares of Preferred Stock in accordance
with the recommendation of the Company, unless otherwise indicated in the
Prospectus Supplement.
Whenever the Board of Directors shall have failed to declare and pay
dividends on a series of Preferred Stock, Adjustable Rate Preferred Stock,
Fixed Rate Preferred Stock or New Wells Fargo Preferred Stock for dividend
periods, whether or not consecutive, containing in the aggregate a number of
days equivalent to six calendar quarters, the holders of such series of
Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock
or New Wells Fargo Preferred Stock (voting as a class with all other affected
series of Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate
Preferred Stock and New Wells Fargo Preferred Stock ranking on a parity
therewith either as to dividends or upon liquidation and upon which like
voting rights have been conferred and are exercisable) will be entitled to
vote for the election of two of the authorized number of directors of the
Company at the next annual meeting of stockholders and at each subsequent
meeting until all dividends which the Board of Directors failed to declare or
pay on such series of Preferred Stock, Adjustable Rate Preferred Stock, Fixed
Rate Preferred Stock or New Wells Fargo Preferred Stock have been fully paid
or
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set apart for payment. In addition, under such circumstances, certain holders
of Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred
Stock and New Wells Fargo Preferred Stock may become subject to regulation as
a bank holding company. See "Description of Preferred Stock -- General." The
term of office of all directors elected by the holders of Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and New Wells
Fargo Preferred Stock shall terminate immediately upon the termination of the
right of the holders of Preferred Stock, Adjustable Rate Preferred Stock,
Fixed Rate Preferred Stock and New Wells Fargo Preferred Stock to vote for
directors.
So long as any shares of Preferred Stock, Adjustable Rate Preferred Stock,
Fixed Rate Preferred Stock and New Wells Fargo Preferred Stock remain
outstanding, the Company shall not, without the consent of the holders of at
least two-thirds of the shares of the affected series of Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock and New Wells
Fargo Preferred Stock outstanding at the time (voting separately as a class
with all other affected series of Preferred Stock ranking on a parity with the
affected series of Preferred Stock, Adjustable Rate Preferred Stock, Fixed
Rate Preferred Stock and New Wells Fargo Preferred Stock), (i) authorize,
create or issue, or increase the authorized amount of, any class or series of
stock ranking prior to the affected series of Preferred Stock, Adjustable Rate
Preferred Stock, Fixed Rate Preferred Stock and New Wells Fargo Preferred
Stock as to dividends or upon liquidation; or (ii) amend, alter or repeal the
provisions of the Company's Restated Certificate of Incorporation, whether by
merger, consolidation or otherwise, so as to materially and adversely affect
any right, preference, privilege or voting power of the affected series of
Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock
or New Wells Fargo Preferred Stock or the holders thereof; provided, however,
that any increase in the amount of the authorized Common Stock or authorized
Preferred Stock or the creation and issuance of other series of common stock
or preferred stock ranking on a parity with or junior to the affected series
of Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred
Stock or New Wells Fargo Preferred Stock as to dividends and upon liquidation
shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below and in any Prospectus Supplement of certain
provisions of the Deposit Agreement (as defined below) and of the Depositary
Shares and Depositary Receipts does not purport to be complete and is subject
to, and qualified in its entirety by reference to, the form of Deposit
Agreement and form of Depositary Receipts relating to each series of the
Preferred Stock which are filed with the Commission as an exhibit to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock. The shares of any series of the Preferred Stock
underlying the Depositary Shares will be deposited under a separate Deposit
Agreement (the "Deposit Agreement") between the Company and a bank or trust
company selected by the Company (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and address
of the Depositary. Subject to the terms of the Deposit Agreement, each owner
of a Depositary Share will be entitled, in proportion to the applicable
fractional interest in a share of Preferred Stock underlying such Depositary
Share, to all the rights and preferences of the Preferred Stock underlying
such Depositary Share (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by Depositary Receipts issued
pursuant to the Deposit Agreement, each of which will represent the fractional
interest in a share of a particular series of the Preferred Stock described in
the Prospectus Supplement.
Unless otherwise specified in the Prospectus Supplement, a holder of
Depositary Shares is not entitled to receive the whole shares of Preferred
Stock underlying the Depositary Shares.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record holders
of Depositary Shares relating to such Preferred Stock in proportion to the
numbers of such Depositary Shares owned by such holders on the relevant record
date. The Depositary shall distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction
of one cent, and any balance not so distributed shall be added to and treated
as part of the next sum received by the Depositary for distribution to record
holders of Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
The Deposit Agreement also contains provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the Preferred Stock shall be made available to holders of Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If a series of the Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the
proceeds received by the Depositary resulting from the redemption, in whole or
in part, of such series of the Preferred Stock held by the Depositary. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share payable with respect to such series of the
Preferred Stock. If less than all the Depositary Shares are to be redeemed,
the Depositary Shares to be redeemed will be selected by lot or pro rata as
may be determined by the Depositary.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which
the holders of such Depositary Shares were entitled upon such redemption upon
surrender to the Depositary of the Depositary Receipts evidencing such
Depositary Shares. Any funds deposited by the Company with the Depositary for
any Depositary Shares which the holders thereof fail to redeem shall be
returned to the Company after a period of two years from the date such funds
are so deposited.
VOTING
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail the information contained
in such notice of meeting to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of Preferred
Stock underlying such holder's Depositary Shares. The Depositary will
endeavor, insofar as practicable, to vote the number of shares of Preferred
Stock underlying such Depositary Shares in accordance with such instructions,
and the Company will agree to take all action which may be deemed necessary by
the Depositary in order to enable the Depositary to do so. To the extent the
Depositary does not receive specific instructions from the holders of
Depositary Shares relating to such Preferred Stock, it will vote shares of
Preferred Stock in accordance with the recommendation of the Company, unless
otherwise indicated in the Prospectus Supplement.
AMENDMENT OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary, provided,
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<PAGE>
however, that any amendment which materially and adversely alters the rights
of the existing holder of Depositary Shares will not be effective unless such
amendment has been approved by the record holders of at least a majority of
the Depositary Shares then outstanding.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
that arise solely from the existence of the depositary arrangements. The
Company will pay charges of the Depositary in connection with the initial
deposit of the Preferred Stock and any redemption of the Preferred Stock.
Holders of Depositary Shares will pay all other transfer and other taxes and
governmental charges, and, in addition, such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
TAXATION
Owners of Depositary Shares will be treated for Federal income tax purposes
as if they were owners of the Preferred Stock represented by such Depositary
Shares and, accordingly, will be entitled to take into account for Federal
income tax purposes income and deductions to which they would be entitled if
they were holders of such Preferred Stock. In addition, (i) no gain or loss
will be recognized for Federal income tax purposes upon the withdrawal of
Preferred Stock in exchange for Depositary Shares as provided in the Deposit
Agreement, (ii) the tax basis of each share of Preferred Stock to an
exchanging owner of Depositary Shares will, upon such exchange, be the same as
the aggregate tax basis of the Depositary Shares exchanged therefor, and (iii)
the holding period for shares of the Preferred Stock in the hands of an
exchanging owner of Depositary Shares who held such Depositary Shares at the
time of the exchange thereof for Preferred Stock will include the period
during which such person owned such Depositary Shares.
MISCELLANEOUS
The Company, or at the option of the Company, the Depositary, will forward
to the holders of Depositary Shares all reports and communications from the
Company which the Company is required to furnish to the holders of the
Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and
the Depositary under the Deposit Agreement will be limited to performance in
good faith of their duties thereunder and they will not be obligated to
prosecute or defend any legal proceeding in respect of any Depositary Shares
or Preferred Stock unless satisfactory indemnity is furnished. They may rely
upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares
or other persons believed to be competent and on documents believed to be
genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY; TERMINATION OF THE DEPOSIT AGREEMENT
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary will be appointed by the Company within 60 days after delivery of
the notice of resignation or removal. The Deposit Agreement may be terminated
at the direction of the Company or by the Depositary if a period of 90 days
shall have expired after the Depositary has delivered to the Company written
notice of its election to resign and a successor depositary shall not have
been appointed. Upon termination of the Deposit Agreement, the Depositary will
discontinue the transfer of Depositary Receipts, will suspend the distribution
of dividends to the holders thereof, and will not give any further notices
(other than notice of such termination) or perform any further acts under the
Deposit Agreement except that the Depositary will continue to deliver
Preferred Stock certificates together with such dividends and distributions
and the net proceeds of any sales of rights, preferences, privileges
18
<PAGE>
or other property in exchange for Depositary Receipts surrendered. Upon
request of the Company, the Depositary shall deliver all books, records,
certificates evidencing Preferred Stock, Depositary Receipts and other
documents respecting the subject matter of the Deposit Agreement to the
Company.
DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 150,000,000 shares of Common Stock, par
value $5.00 per share, and 25,000,000 shares of preferred stock, par value
$5.00 per share.
COMMON STOCK
Holders of Common Stock are entitled to one vote for each share of Common
Stock held. All outstanding shares of Common Stock are fully paid and
nonassessable.
Holders of Common Stock are entitled to receive such dividends as are
declared by the Board of Directors out of funds legally available therefor
subject to the limitations described below. In the event of liquidation,
holders of the Common Stock are entitled to receive pro rata any assets
distributed after payment of liabilities and the liquidation preference, if
any, on any shares of Preferred Stock then outstanding. There are no
conversion, preemptive or redemption rights of the Common Stock. The dividend
rights and liquidation preferences relating to the preferred stock are
superior to those relating to the Common Stock.
The transfer agent and registrar for the Common Stock is First Chicago Trust
Company of New York, New York.
EXISTING PREFERRED STOCK
As of the date of this Prospectus, the Company had five series of preferred
stock outstanding, consisting of 1,500,000 shares of Adjustable Rate
Cumulative Preferred Stock, Series B, 477,500 shares of 9% Preferred Stock,
Series C represented by 9,550,000 Depositary Shares each representing a one-
twentieth interest in a share of 9% Preferred Stock, 350,000 shares of 8 7/8%
Preferred Stock, Series D represented by 7,000,000 Depositary Shares each
representing a one-twentieth interest in a share of 8 7/8% Preferred Stock,
750,000 shares of 9% Preferred Stock, Series G represented by 6,000,000
Depositary Shares each representing a one-eighth interest in a share of 9%
Series G Preferred Stock and 4,000,000 shares of Fixed/Adjustable Rate Non-
cumulative Preferred Stock, Series H. The 9% Preferred Stock, Series C has
been called for redemption by the Company on December 31, 1996. The Adjustable
Rate Preferred Stock has a liquidation preference of $50 per share, the Fixed
Rate Preferred Stock has a liquidation preference of $500 per share or $25 per
Depositary Share, the 9% Series G Preferred Stock has a liquidation preference
of $200 per share or $25 per Depositary Share and the Fixed/Adjustable Rate
Preferred Stock has a liquidation preference of $50 per share. Unless full
cumulative dividends on the Preferred Stock, Adjustable Rate Preferred Stock,
Fixed Rate Preferred Stock and New Wells Fargo Preferred Stock have been paid,
the Company may not declare dividends on or make any other payment in respect
of any class of stock ranking junior to the Preferred Stock, Adjustable Rate
Preferred Stock, Fixed Rate Preferred Stock or New Wells Fargo Preferred
Stock, including the Common Stock. Whenever the Board of Directors of the
Company shall have failed to declare and pay dividends on any series of
Preferred Stock, Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock
or New Wells Fargo Preferred Stock for dividend periods, whether or not
consecutive, containing in the aggregate a number of days equivalent to six
calendar quarters, the holders of such series of Preferred Stock, Adjustable
Rate Preferred Stock, Fixed Rate Preferred Stock or New Wells Fargo Preferred
Stock (voting as a class with all other affected series of Preferred Stock,
Adjustable Rate Preferred Stock, Fixed Rate Preferred Stock or New Wells Fargo
Preferred Stock ranking on a parity therewith either as to dividends or upon
liquidation and upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of two of the
authorized number of directors of the Company at the next annual meeting of
stockholders and at each subsequent meeting
19
<PAGE>
until all dividends which the Board of Directors failed to declare or pay on
the affected series of Preferred Stock, Adjustable Rate Preferred Stock, Fixed
Rate Preferred Stock or New Wells Fargo Preferred Stock have been fully paid
or set apart for payment. The holders of Preferred Stock, Adjustable Rate
Preferred Stock, Fixed Rate Preferred Stock, New Wells Fargo Preferred Stock
and Fixed/Adjustable Rate Preferred Stock have preference and priority over
holders of Common Stock in the event of liquidation for payment of the
liquidation preference of the Preferred Stock, Adjustable Rate Preferred
Stock, Fixed Rate Preferred Stock, New Wells Fargo Preferred Stock and
Fixed/Adjustable Rate Preferred Stock plus an amount equal to all accrued and
unpaid dividends thereon. The Company may call the other series of Preferred
Stock for redemption on dates from the date of this Prospectus to October 1,
2001.
PLAN OF DISTRIBUTION
The Company may offer and sell the Offered Securities to one or more
underwriters for resale by them or through agents, or to investors directly.
The Prospectus Supplement with respect to each series of Offered Securities
will set forth the terms of the offering of the Offered Securities, including
the name or names of any underwriters or agents, the purchase price of the
Offered Securities and the net proceeds to the Company from such sale, any
underwriting discounts, agency fees and other items constituting underwriters'
or agents' compensation, any initial public offering price and any discounts
or concessions allowed, reallowed or paid to dealers.
If any underwriters are involved in the offer and sale, the Offered
Securities will be acquired by the underwriters for their own account and may
be resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Unless otherwise set forth in the accompanying Prospectus
Supplement, the obligations of the underwriters to purchase the Offered
Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Offered Securities
described in such Prospectus Supplement if any are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
Underwriters and agents may be entitled, under agreements entered into with
the Company, to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act of 1933.
Employees of the Bank may act as finders of purchasers of Offered
Securities. Their activities will be limited to contacting customers and
informing them of the terms of the Offered Securities offered by the Company.
The Company believes that such persons are not required to be registered as
brokers or dealers under Section 3(a)(4) and 3(a)(5) of the Act since they are
acting as employees on behalf of a bank.
LEGAL OPINIONS
The legality of the Offered Securities offered hereby will be passed upon
for the Company by Brobeck, Phleger & Harrison LLP, San Francisco, California.
20
<PAGE>
EXPERTS
The consolidated financial statements of the Company as of December 31, 1995
and 1994 and for each of the years in the three-year period ended December 31,
1995 incorporated by reference in the Company's Annual Report on Form 10-K for
the year ended December 31, 1995 incorporated by reference herein and
elsewhere in the Registration Statement have been incorporated by reference
herein and in the Registration Statement in reliance upon the report of KPMG
Peat Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The consolidated financial statements of First Interstate as of December 31,
1995 and 1994 and for each of the three years in the period ended December 31,
1995 incorporated by reference herein have been incorporated by reference
herein in reliance upon the report of Ernst & Young LLP, independent auditors,
incorporated by reference herein, given upon the authority of said firm as
experts in accounting and auditing.
21
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration Fee .................................................. $227,273
NYSE Listing Fees ................................................. 135,000
Printing and Engraving ............................................ 40,000
Legal Fees ........................................................ 200,000
Accounting Fees ................................................... 40,000
Blue Sky and Legal Investment Fees ................................ 5,000
Rating Agencies' Fees ............................................. 300,000
Trustee's Fees .................................................... 30,000
Miscellaneous ..................................................... 727
--------
Total ............................................................. $978,000
========
</TABLE>
The foregoing amounts are the best estimates of the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law, Wells Fargo &
Company has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933. Wells Fargo & Company's By-Laws require it to
indemnify its directors, officers and employees to the full extent permitted
by Delaware law against certain liabilities and expenses incurred as a result
of proceedings involving such persons as a result of their acting as an
officer, director or trustee of any of the Registrants, including proceedings
under the Securities Act of 1933 or the Securities Exchange Act of 1934. The
By-Laws further provide that rights conferred under such By-Laws shall not be
deemed to be exclusive of any other right such persons may have or acquire
under any statute, provision or any certificate of incorporation, by-law,
agreement, vote of stockholders, disinterested directors or otherwise. The
Restated Certificate of Incorporation of Registrant precludes, with certain
exceptions, Wells Fargo & Company and its stockholders from recovering
monetary damages from directors for business decisions found by a court to
have been negligent or grossly negligent, including decisions relating to a
change in control of Wells Fargo & Company.
Reference is made to the form of Underwriting Agreement filed as an exhibit
hereto pursuant to which underwriters may under certain circumstances
indemnify the directors and officers of the Registrant. Directors and officers
of the Registrant may also be indemnified in certain circumstances under the
terms of other underwriting agreements entered into by the Registrant in
connection with prior public offerings.
ITEM 16. EXHIBITS.
<TABLE>
<C> <S>
1(a) Form of firm commitment Underwriting Agreement for Senior Notes.
Incorporated by reference to Exhibit 1(a) to Registration Statement No.
33-53514 filed on December 8, 1992.
1(b) Form of firm commitment Underwriting Agreement for Subordinated Notes.
Incorporated by reference to Exhibit 1(b) to Registration Statement No.
33-53514 filed on December 8, 1992.
1(c) Form of firm commitment Underwriting Agreement for Preferred Stock.
Incorporated by reference to Exhibit 1(c) to Registration Statement No.
33-53514 filed on December 8, 1992.
1(d)* Form of Underwriting Agreement for offering of Preferred Securities by
Wells Fargo Capital I, II and III.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
1(e) Form of Distribution Agreement. Incorporated by reference to Exhibit
1(d) to Registration Statement No. 33-60573 filed on June 26, 1995.
1(f) Finder Agreement. Incorporated by reference to Exhibit 1(d) of the
Company's Report on Form 8-K filed January 23, 1991.
1(g) Amendment No. 1 to Finder Agreement. Incorporated by reference to
Exhibit 1(g) to Registration Statement No. 33-42273 filed on August 19,
1991.
1(h) Form of Amendment No. 2 to Finder Agreement. Incorporated by reference
to Exhibit 1(h) to Registration Statement No. 33-42273 filed on August
19, 1991.
1(i) Amendment No. 3 to Finder Agreement. Incorporated by reference to
Exhibit 1(h) to Registration Statement No. 33-53514 filed on December
8, 1992.
1(j) Amendment No. 4 to Finder Agreement. Incorporated by reference to
Exhibit 1(i) to Registration Statement No. 33-51227 filed on November
30, 1993.
1(k) Amendment No. 5 to Finder Agreement. Incorporated by reference to
Exhibit 1(j) to Registration Statement No. 33-60573 filed on June
26,1995.
1(l) Amendment No. 6 to Finder Agreement, dated August 24, 1995.
Incorporated by reference to Exhibit 1(k) to Registration Statement No.
333-10469 filed on August 20, 1996.
1(m)* Amendment No. 7 to Finder Agreement, dated September 11, 1996.
4(a) Form of Senior Indenture, dated as of September 1, 1984, between Wells
Fargo & Company and Manufacturers Hanover Trust Company. Incorporated
by reference to Exhibit 4(a) to Registration Statement No. 2-93314
filed on September 18, 1984.
4(b) Form of First Supplemental Indenture, dated as of April 15, 1986,
between Wells Fargo & Company and Manufacturers Hanover Trust Company.
Incorporated by reference to Exhibit 4(b) to Registration Statement No.
33-4573 filed on April 4, 1986.
4(c) Form of Second Supplemental Indenture, dated as of June 30, 1987,
between Wells Fargo & Company and Manufacturers Hanover Trust Company.
Incorporated by reference to Exhibit 4.10 to Form 8-B filed June 30,
1987.
4(d) Form of Third Supplemental Indenture, dated as of January 23, 1991,
between Wells Fargo & Company and Manufacturers Hanover Trust Company.
Incorporated by reference to Exhibit 4(a) to Form 8-K filed on January
23, 1991.
4(e) Form of Subordinated Indenture, dated as of December 10, 1992, between
Wells Fargo & Company and Marine Midland Bank, N.A. Incorporated by
reference to Exhibit 4(e) to Registration Statement No. 33-53514 filed
on December 8, 1992.
4(f)* Junior Subordinated Indenture, dated as of November 27, 1996, between
Wells Fargo & Company and the First National Bank of Chicago to be used
in connection with the issuance of Junior Subordinated Debentures.
4(g) Form of fixed rate Senior Note. Incorporated by reference to Exhibit
4(b) to Registration Statement No. 2-95939 filed on February 20, 1985.
4(h) Form of floating rate Senior Note. Incorporated by reference to Exhibit
4(c) to Registration Statement No. 2-95939 filed on February 20, 1985.
4(i) Form of original issue discount or zero coupon Senior Note.
Incorporated by reference to Exhibit 4(d) to Registration Statement No.
2-95939 filed on February 20, 1985.
4(j) Form of fixed interest bearing Subordinated Note. Incorporated by
reference to Exhibit 4(i) to Registration Statement No. 33-53514 filed
on December 8, 1992.
4(k) Form of floating interest bearing Subordinated Note. Incorporated by
reference to Exhibit 4(j) to Registration Statement No. 33-53514 filed
on December 8, 1992.
4(l) Form of original issue discount or zero coupon Subordinated Note.
Incorporated by reference to Exhibit 4(k) to Registration Statement No.
33-53514 filed on December 8, 1992.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
4(m) Form of Medium-Term Fixed Rate Note. Incorporated by reference to
Exhibit 4(l) to Registration Statement No. 33-60573 filed on June 26,
1995.
4(n) Form of Medium-Term Floating Rate Note. Incorporated by reference to
Exhibit 4(m) to Registration Statement No. 33-60573 filed on June 26,
1995.
4(o) Restated Certificate of Incorporation of the Company. Incorporated by
reference to Exhibit 3(a) to Annual Report on Form 10-K for the year
ended December 31, 1993.
4(p) Certificate of Determination for 9-7/8% Preferred Stock, Series F.
Incorporated by reference to Exhibit 4(a) of Form 8-K filed April 10,
1996.
4(q) Certificate of Determination for 9% Preferred Stock, Series G.
Incorporated by reference to Exhibit 4(b) of Form 8-K filed April 10,
1996.
4(r) Bylaws of the Company. Incorporated by reference to Exhibit 3(ii) to
Form 8-K filed on April 18, 1995.
4(s) Form of Certificate of Designation for Preferred Stock. Incorporated
by reference to Exhibit 4(c) to Registration Statement No. 33-45066
filed on January 22, 1992.
4(t) Form of Deposit Agreement. Incorporated by reference to Exhibit 4(f)
to Registration Statement No. 33-45066 filed on January 22, 1992.
4(u) Form of Depositary Receipt. Incorporated by reference to Exhibit 4(g)
to Registration Statement No. 33-45066 filed on January 22, 1992.
4(v)** Trust Agreement of Wells Fargo Capital I.
4(w)** Certificate of Trust of Wells Fargo Capital I.
4(x)** Trust Agreement of Wells Fargo Capital II.
4(y)** Certificate of Trust of Wells Fargo Capital II.
4(z)* Trust Agreement of Wells Fargo Capital III.
4(aa)** Certificate of Trust of Wells Fargo Capital III.
4(bb)* Form of Amended and Restated Trust Agreement for each of Wells Fargo
Capital I, II and III.
4(cc)* Form of Preferred Security (included as Exhibit E in Exhibit 4(bb)).
4(dd)* Form of Junior Subordinated Debt Security.
4(ee)* Form of Guarantee Agreement with respect to Preferred Securities.
4(ff)* Restated Certificate of Trust of Wells Fargo Capital I.
4(gg)* Restated Certificate of Trust of Wells Fargo Capital II.
4(hh)* Restated Certificate of Trust of Wells Fargo Capital III.
5(a)* Opinion of Brobeck, Phleger & Harrison LLP.
5(b)* Opinion of Richards, Layton & Finger.
5(c)* Opinion of Richards, Layton & Finger.
5(d)* Opinion of Richards, Layton & Finger.
8(a)* Opinion of counsel as to certain federal income tax matters.
12(a)* Ratio of earnings to fixed charges (consolidated). Attached hereto
and incorporated by reference to Exhibit 12(a) to Form 10-K filed by
the Company on March 19, 1996, and to Exhibit 12(a) to the Company's
Quarterly Report on Form 10-Q for the quarter ended September 30,
1996.
12(b)* Computation of ratios of earnings to fixed charges and preferred
dividend requirements (consolidated). Attached hereto and
incorporated by reference to Exhibit 12(b) to
Form 10-K filed by the Company on March 19, 1996, and to Exhibit
12(b) to the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1996.
</TABLE>
II-3
<PAGE>
<TABLE>
<S> <C>
23(a)* Consent of KPMG Peat Marwick LLP.
23(b)* Consent of Ernst & Young LLP.
23(c)* Consent of Brobeck, Phleger & Harrison LLP (included in Exhibit 5(a)).
23(d)* Consent of Richards, Layton & Finger (included in Exhibits 5(b), 5(c) and 5(d)).
24(a) Powers of Attorney (included on II-6).
24(b) Powers of Attorney for Wells Fargo Capital I, II and III (included in Exhibits 4(v), 4(x) and 4(z),
respectively).
25(a)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Junior
Subordinated Indenture.
25(b)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Trust Agreement
of Wells Fargo Capital I.
25(c)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Trust Agreement
of Wells Fargo Capital II.
25(d)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Trust Agreement
of Wells Fargo Capital III.
25(e)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Guarantee
Agreement of Wells Fargo & Company for the benefit of the holders of Preferred Securities of Wells
Fargo Capital I.
25(f)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Guarantee
Agreement of Wells Fargo & Company for the benefit of the holders of Preferred Securities of Wells
Fargo Capital II.
25(g)* Statement of Eligibility of The First National Bank of Chicago as Trustee under the Guarantee
Agreement of Wells Fargo & Company for the benefit of the holder of Preferred Securities of Wells
Fargo Capital III.
25(h)* Statement of Eligibility of The Chase Manhattan Bank (formerly known as Chemical Bank) as Trustee
under the Senior Indenture.
25(i)* Statement of Eligibility of Marine Midland Bank as Trustee under the Subordinated Indenture.
</TABLE>
- --------
*Filed herewith.
**Previously filed.
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which individually or in the aggregate represent a fundamental change
in the information set forth in the Registration Statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement; provided, however, that (i)
and (ii) do not apply if the Registration is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by (i) and
(ii) is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15 of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
II-4
<PAGE>
Notwithstanding subparagraph (ii) above, any increase or decrease in volume
of securities offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933 if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the Registration Statement shall be deemed to be
a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling persons of the Registrant in the successful defense of any
action, suit or proceeding and other than indemnification covered by
insurance) is asserted by such director, officer or controlling persons in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Amendment to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the City and County of San Francisco, State of California, this 3rd day of
December , 1996.
WELLS FARGO & COMPANY
By /s/ Alan J. Pabst
-------------------------------------
Alan J. Pabst
Senior Vice President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, the Amendment to
the Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Paul Hazen* Chairman and Chief Executive December , 1996
- ------------------------------------ Officer (Principal Executive
Paul Hazen Officer)
/s/ William F. Zuendt* President and Director December , 1996
- ------------------------------------
William F. Zuendt
/s/ Rodney L. Jacobs* Vice Chairman and Chief December , 1996
- ------------------------------------ Financial Officer (Principal
Rodney L. Jacobs Financial Officer)
/s/ Frank A. Moeslein* Executive Vice President and December , 1996
- ------------------------------------ Controller (Principal
Frank A. Moeslein Accounting Officer)
</TABLE>
II-6
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
Director
____________________________________
H. Jesse Arnelle
Director
____________________________________
Michael R. Bowlin
Director
____________________________________
Edward M. Carson
/s/ William S. Davila* Director December , 1996
____________________________________
William S. Davila
/s/ Rayburn S. Dezember Director
____________________________________
Rayburn S. Dezember
Director
____________________________________
Myron DuBain
Director
____________________________________
Don C. Frisbee
Director
____________________________________
Robert K. Jaedicke
Director
____________________________________
Thomas L. Lee
Director
____________________________________
William F. Miller
/s/ Ellen M. Newman* Director December , 1996
____________________________________
Ellen M. Newman
/s/ Philip J. Quigley* Director December , 1996
____________________________________
Philip J. Quigley
/s/ Carl E. Reichardt* Director December , 1996
____________________________________
Carl E. Reichardt
/s/ Donald B. Rice* Director December , 1996
____________________________________
Donald B. Rice
/s/ Richard J. Stegemeier* Director December , 1996
____________________________________
Richard J. Stegemeier
/s/ Susan G. Swenson* Director December , 1996
____________________________________
Susan G. Swenson
/s/ Daniel M. Tellep* Director December , 1996
____________________________________
Daniel M. Tellep
/s/ Chang-Lin Tien* Director December , 1996
____________________________________
Chang-Lin Tien
/s/ John A. Young* Director December , 1996
____________________________________
John A. Young
</TABLE>
*By /s/ Alan J. Pabst
____________________________
Attorney-in-Fact
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Wells Fargo
Capital I, Wells Fargo Capital II and Wells Fargo Capital III each certify
that it has duly caused this Amendment to the Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the
City and County of San Francisco, State of California, this 3rd day of
December, 1996.
WELLS FARGO CAPITAL I
By: Wells Fargo & Company, as
Sponsor
By: /s/ Guy Rounsaville, Jr.
-------------------------------------
Name: Guy Rounsaville, Jr.
Title: Secretary
WELLS FARGO CAPITAL II
By: Wells Fargo & Company, as
Sponsor
By: /s/ Guy Rounsaville, Jr.
-------------------------------------
Name: Guy Rounsaville, Jr.
Title: Secretary
WELLS FARGO CAPITAL III
By: Wells Fargo & Company, as
Sponsor
By: /s/ Guy Rounsaville, Jr.
-------------------------------------
Name: Guy Rounsaville, Jr.
Title: Secretary
II-8
<PAGE>
INDEX OF EXHIBITS
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1(a) Form of firm commitment Underwriting Agreement for
Senior Notes. Incorporated by reference to Exhibit
1(a) to Registration Statement No. 33-53514 filed on
December 8, 1992.
1(b) Form of firm commitment Underwriting Agreement for
Subordinated Notes. Incorporated by reference to
Exhibit 1(b) to Registration Statement No. 33-53514
filed on December 8, 1992.
1(c) Form of firm commitment Underwriting Agreement for
Preferred Stock. Incorporated by reference to
Exhibit 1(c) to Registration Statement No. 33-53514
filed on December 8, 1992.
1(d)* Form of Underwriting Agreement for offering of
Preferred Securities by Wells Fargo Capital I, II
and III.
1(e) Form of Distribution Agreement. Incorporated by
reference to Exhibit 1(d) to Registration Statement
No. 33-60573 filed on June 26, 1995.
1(f) Finder Agreement. Incorporated by reference to
Exhibit 1(d) of the Company's Report on Form 8-K
filed January 23, 1991.
1(g) Amendment No. 1 to Finder Agreement. Incorporated by
reference to Exhibit 1(g) to Registration Statement
No. 33-42273 filed on August 19, 1991.
1(h) Form of Amendment No. 2 to Finder Agreement.
Incorporated by reference to Exhibit 1(h) to
Registration Statement No. 33-42273 filed on August
19, 1991.
1(i) Amendment No. 3 to Finder Agreement. Incorporated by
reference to Exhibit 1(h) to Registration Statement
No. 33-53514 filed on December 8, 1992.
1(j) Amendment No. 4 to Finder Agreement. Incorporated by
reference to Exhibit 1(i) to Registration Statement
No. 33-51227 filed on November 30, 1993.
1(k) Amendment No. 5 to Finder Agreement. Incorporated by
reference to Exhibit 1(j) to Registration Statement
No. 33-60573 filed on June 26, 1995.
1(l) Amendment No. 6 to Finder Agreement, dated August
24, 1995. Incorporated by reference to Exhibit 1(k)
to Registration Statement No. 333-10469 filed on
August 20, 1996.
1(m)* Amendment No. 7 to Finder Agreement, dated September
11, 1996.
4(a) Form of Senior Indenture, dated as of September 1,
1984, between Wells Fargo & Company and
Manufacturers Hanover Trust Company. Incorporated by
reference to Exhibit 4(a) to Registration Statement
No. 2-93314 filed on September 18, 1984.
4(b) Form of First Supplemental Indenture, dated as of
April 15, 1986, between Wells Fargo & Company and
Manufacturers Hanover Trust Company. Incorporated by
reference to Exhibit 4(b) to Registration Statement
No. 33-4573 filed on April 4, 1986.
</TABLE>
II-9
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4(c) Form of Second Supplemental Indenture, dated as of
June 30, 1987, between Wells Fargo & Company and
Manufacturers Hanover Trust Company. Incorporated by
reference to Exhibit 4.10 to Form 8-B filed June 30,
1987.
4(d) Form of Third Supplemental Indenture, dated as of
January 23, 1991, between Wells Fargo & Company and
Manufacturers Hanover Trust Company. Incorporated by
reference to Exhibit 4(a) to Form 8-K filed on
January 23, 1991.
4(e) Form of Subordinated Indenture, dated as of December
10, 1992, between Wells Fargo & Company and Marine
Midland Bank, N.A. Incorporated by reference to
Exhibit 4(e) to Registration Statement No. 33-53514
filed on December 8, 1992.
4(f)* Junior Subordinated Indenture, dated as of November
27, 1996, between Wells Fargo & Company and the
First National Bank of Chicago to be used in
connection with the issuance of Junior Subordinated
Debentures.
4(g) Form of fixed rate Senior Note. Incorporated by
reference to Exhibit 4(b) to Registration Statement
No. 2-95939 filed on February 20, 1985.
4(h) Form of floating rate Senior Note. Incorporated by
reference to Exhibit 4(c) to Registration Statement
No. 2-95939 filed on February 20, 1985.
4(i) Form of original issue discount or zero coupon
Senior Note. Incorporated by reference to Exhibit
4(d) to Registration Statement No. 2-95939 filed on
February 20, 1985.
4(j) Form of fixed interest bearing Subordinated Note.
Incorporated by reference to Exhibit 4(i) to
Registration Statement No. 33-53514 filed on
December 8, 1992.
4(k) Form of floating interest bearing Subordinated Note.
Incorporated by reference to Exhibit 4(j) to
Registration Statement No. 33-53514 filed on
December 8, 1992.
4(l) Form of original issue discount or zero coupon
Subordinated Note. Incorporated by reference to
Exhibit 4(k) to Registration Statement No. 33-53514
filed on December 8, 1992.
4(m) Form of Medium-Term Fixed Rate Note. Incorporated by
reference to Exhibit 4(l) to Registration Statement
No. 33-60573 filed on June 26, 1995.
4(n) Form of Medium-Term Floating Rate Note. Incorporated
by reference to Exhibit 4(m) to Registration
Statement No. 33-60573 filed on June 26, 1995.
4(o) Restated Certificate of Incorporation of the
Company. Incorporated by reference to Exhibit 3(a)
to Annual Report on Form 10-K for the year ended
December 31, 1993.
4(p) Certificate of Determination for 9- 7/8% Preferred
Stock, Series F. Incorporated by reference to
Exhibit 4(a) of Form 8-K filed April 10, 1996.
4(q) Certificate of Determination for 9% Preferred Stock,
Series G. Incorporated by reference to Exhibit 4(b)
of Form 8-K filed April 10, 1996.
4(r) Bylaws of the Company. Incorporated by reference to
Exhibit 3(ii) to Form 8-K filed on April 18, 1995.
</TABLE>
II-10
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4(s) Form of Certificate of Designation for Preferred
Stock. Incorporated by reference to Exhibit 4(c) to
Registration Statement No. 33-45066 filed on January
22, 1992.
4(t) Form of Deposit Agreement. Incorporated by reference
to Exhibit 4(f) to Registration Statement No. 33-
45066 filed on January 22, 1992.
4(u) Form of Depositary Receipt. Incorporated by
reference to Exhibit 4(g) to Registration Statement
No. 33-45066 filed on January 22, 1992.
4(v)** Trust Agreement of Wells Fargo Capital I.
4(w)** Certificate of Trust of Wells Fargo Capital I.
4(x)** Trust Agreement of Wells Fargo Capital II.
4(y)** Certificate of Trust of Wells Fargo Capital II.
4(z)* Trust Agreement of Wells Fargo Capital III.
4(aa)** Certificate of Trust of Wells Fargo Capital III.
4(bb)* Form of Amended and Restated Trust Agreement for
each of Wells Fargo Capital I, II and III.
4(cc)* Form of Preferred Security (included as Exhibit E in
Exhibit 4(bb)).
4(dd)* Form of Junior Subordinated Debt Security.
4(ee)* Form of Guarantee Agreement with respect to
Preferred Securities.
4(ff)* Restated Certificate of Trust of Wells Fargo Capital
I.
4(gg)* Restated Certificate of Trust of Wells Fargo Capital
II.
4(hh)* Restated Certificate of Trust of Wells Fargo Capital
III.
5(a)* Opinion of Brobeck, Phleger & Harrison LLP.
5(b)* Opinion of Richards, Layton & Finger.
5(c)* Opinion of Richards, Layton & Finger.
5(d)* Opinion of Richards, Layton & Finger.
8(a)* Opinion of counsel as to certain federal income tax
matters.
12(a)* Ratio of earnings to fixed charges (consolidated).
Attached hereto and incorporated by reference to
Exhibit 12(a) to the Company's Form 10-K filed March
19, 1996, and to Exhibit 12(a) to the Company's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
12(b)* Computation of ratios of earnings to fixed charges
and preferred dividend requirements (consolidated).
Attached hereto and incorporated by reference to
Exhibit 12(b) to the Company's Form 10-K filed March
19, 1996, and to Exhibit 12(b) to the Company's
Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996.
23(a)* Consent of KPMG Peat Marwick LLP.
23(b)* Consent of Ernst & Young LLP.
23(c)* Consent of Brobeck, Phleger & Harrison LLP (included
in Exhibit 5(a)).
23(d)* Consent of Richards, Layton & Finger (included in
Exhibits 5(b), 5(c) and 5(d)).
</TABLE>
II-11
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24(a) Powers of Attorney (included on page II-6).
24(b) Powers of Attorney for Wells Fargo Capital I, II and
III (included in Exhibits 4(v), 4(x) and 4(z),
respectively).
25(a)* Statement of Eligibility of The First National Bank
of Chicago as Trustee under the Junior Subordinated
Indenture.
25(b)* Statement of Eligibility of The First National Bank
of Chicago as Trustee under the Trust Agreement of
Wells Fargo Capital I.
25(c)* Statement of Eligibility of The First National Bank
of Chicago as Trustee under the Trust Agreement of
Wells Fargo Capital II.
25(d)* Statement of Eligibility of The First National Bank
of Chicago as Trustee under the Trust Agreement of
Wells Fargo Capital III.
25(e)* Statement of Eligibility of The First National Bank
of Chicago as Trustee under the Guarantee Agreement
of Wells Fargo & Company for the benefit of the
holders of Preferred Securities of Wells Fargo
Capital I.
25(f)* Statement of Eligibility of The First National Bank
of Chicago under the Guarantee Agreement of Wells
Fargo & Company for the benefit of the holders of
Preferred Securities of Wells Fargo Capital II.
25(g)* Statement of Eligibility of The First National Bank
of Chicago as Trustee under the Guarantee Agreement
of Wells Fargo & Company for the benefit of the
holder of Preferred Securities of Wells Fargo
Capital III.
25(h)* Statement of Eligibility of The Chase Manhattan Bank
as Trustees under the Senior Indenture (formerly
known as Chemical Bank).
25(i)* Statement of Eligibility of Marine Midland Bank as
Trustees under the Subordinated Indenture.
</TABLE>
* Filed herewith.
**Previously filed.
II-12
<PAGE>
EXHIBIT 1(d)
WELLS FARGO & COMPANY
Standard Terms Agreement
(Quarterly Income Preferred Securities)
, 1996
<PAGE>
From time to time, Wells Fargo & Company, a Delaware corporation (the
"Guarantor"), and each of Wells Fargo Capital I ("WCF I"), Wells Fargo Capital
II ("WCF II") or Wells Fargo Capital III ("WCF III"), each a business trust
formed under the laws of the State of Delaware, may enter into one or more
underwriting agreements (each such agreement, an "Underwriting Agreement") that
provide for the sale of designated preferred securities to the several
underwriters (the "Underwriters") named therein.
The provisions hereof may be incorporated by reference in any
Underwriting Agreement. As used herein, the term "Trust" means the statutory
business trust named in the first sentence of the Underwriting Agreement. The
term "Agreement" means the Underwriting Agreement, including the provisions
hereof incorporated therein by reference. Unless otherwise defined herein, all
other defined terms have the meanings ascribed thereto in the Underwriting
Agreement.
I.
The Guarantor and each of WCF I, WCF II and WCF III propose that WCF
I, WCF II and WCF III, severally and not jointly, issue from time to time, in
one or more series, preferred securities (the "Securities") pursuant to the
provisions of the registration statement on Form S-3 filed on October 31, 1996,
as amended on December 3, 1996, Registration No. 333-15253. Such Securities may
be issued in amounts, at prices and other terms to be determined in light of
market conditions at the time of sale. The specific number of Securities, title
and liquidation preference of each Security, issuance price, distribution rate
or rates (or method of calculation), distribution periods, distribution payment
dates, redemption provisions, and any other specific terms of the Securities
shall be set forth in a prospectus supplement.
The Securities specified in Schedule I to the Underwriting Agreement
are the "Firm Securities." If specified in such Underwriting Agreement, the
Guarantor and the Trust may grant to the Underwriters the right to purchase at
their election an additional number of Securities specified in such Underwriting
Agreement as provided in Article II hereof (the "Optional Securities"). The Firm
Securities and the Optional Securities, if any, which the Underwriters elect to
purchase pursuant to Article II hereof are herein collectively called the
"Offered Securities."
The Guarantor and WCF I, WCF II and WCF III have filed with the
Securities and Exchange Commission (the "Commission") a registration statement
in respect of the Securities, the Guarantee and the Junior
-2-
<PAGE>
Subordinated Debentures (collectively, the "Registered Securities"), including a
prospectus relating to the Registered Securities, and will file with, or mail
for filing to, the Commission a prospectus supplement specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933.
The term "Registration Statement" means the registration statement as amended to
the date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Offered Securities (the "Prospectus Supplement"), as filed with,
or mailed for filing to, the Commission pursuant to Rule 424. The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Offered Securities together with the Basic Prospectus. As used
herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and
"preliminary prospectus" shall include in each case the material, if any,
incorporated by reference therein.
II.
The terms of the public offering of the Firm Securities are set forth
in the Prospectus.
The Guarantor and the Trust may specify in the Underwriting Agreement
applicable to any Securities that the Guarantor and the Trust thereby grant to
the Underwriters the right (an "Overallotment Option") to purchase at their
election up to the number of Optional Shares set forth in such Underwriting
Agreement, on the terms set forth in the paragraph above, for the sole purpose
of covering over-allotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised by written notice from
the Manager to the Guarantor and the Trust, given within a period specified in
the Underwriting Agreement, setting forth the aggregate number of Optional
Securities to be purchased and the date on which such Optional Securities are to
be delivered, as determined by the Manager but in no event earlier than the
first Closing Date or, unless the Manager, the Guarantor and the Trust otherwise
agree in writing, earlier than or later than the respective number of business
days after the date of such notice set forth in such Underwriting Agreement.
The number of Optional Securities to be added to the number of Firm
Securities to be purchased by each Underwriter as set forth in Schedule I to the
Underwriting Agreement applicable to such Securities shall be, in
each case, the number of Optional Securities which the Guarantor has been
advised by the Manager have been attributed to such Underwriter; provided, that,
if the
-3-
<PAGE>
Guarantor and the Trust has not been so advised, the number of Optional
Securities to be so added shall be, in each case, that proportion of Optional
Securities which the number of Firm Securities to be purchased by such
Underwriter under such Underwriting Agreement bears to the aggregate number of
Firm Securities (rounded as the Manager may determine to the nearest 100
shares). The total number of Offered Securities to be purchased by all the
Underwriters pursuant to such Underwriting Agreement shall be the aggregate
number of Firm Securities set forth in Schedule I to such Underwriting Agreement
plus the aggregate number of Optional Securities which the Underwriters elect to
purchase.
III.
Payment for the Securities shall be made in federal (same day) funds
at the time, date and place set forth in the Underwriting Agreement, upon
delivery to the Manager (as defined in the Underwriting Agreement), through the
facilities of the Depository Trust Company ("DTC"), for the respective accounts
of the several Underwriters of the Securities. Each time and date of such
payment and delivery of the Securities is herein referred to as a "Closing
Date". The Trust will cause the certificates representing the Securities to be
made available for checking and packaging at least one day prior to the Closing
Date at the office of DTC or its designated custodian.
IV.
The several obligations of the Underwriters hereunder are subject, in
the discretion of the Manager, to the condition that all representations and
warranties and other statements of the Guarantor and the Trust in or
incorporated by reference in the Underwriting Agreement are, at and as of each
Closing Date, true and correct, the condition that the Guarantor and the Trust
shall have performed all of their respective obligations hereunder theretofore
to be performed, and to the following additional conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for such purpose shall have
been instituted or threatened, (ii) there shall have been no material
adverse change in the condition, financial or otherwise, or in the
earnings, affairs or business prospects of the Trust or the Guarantor and
its subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, from that set forth in the Registration
-4-
<PAGE>
Statement or Prospectus as amended or supplemented to the Closing Date,
(iii) there shall not have occurred since the date of the applicable
Underwriting Agreement any material adverse change in the financial markets
in the United States or any outbreak or escalation of hostilities or other
national or international calamity or crisis, the effect of which makes it,
in the judgment of the Manager, impracticable to market the Offered
Securities or to enforce contracts for the sale of the Offered Securities
(iv) the rating assigned by any nationally recognized securities rating
agency to any debt securities of the Guarantor as of the date of the
Underwriting Agreement shall not have been lowered since that date and no
rating agency shall have publicly announced that it has under surveillance
or review with possible negative implications, its ratings of any debt
securities of the Guarantor, the Manager shall have received, on the
Closing Date, a certificate, dated the Closing Date and signed by an
executive officer of the Guarantor and an officer or trustee of the Trust
with respect to clauses (i) and (ii) of this Article IV(a) and as to such
other matters as the Manager may reasonably request.
(b) The Manager shall have received on the Closing Date an opinion of
Brobeck Phleger & Harrison LLP, counsel for the Guarantor and the Trust,
dated the Closing Date, to the effect set forth in Exhibit A hereto.
(c) The Manager shall have received on the Closing Date an opinion of
the Chief Counsel of the Guarantor, dated the Closing Date, to the effect
set forth in Exhibit B hereto.
(d) The Manager shall have received on the Closing Date an opinion of
Sullivan & Cromwell, counsel for the Underwriters, dated the Closing Date,
with respect to the validity of the Offered Securities and with respect to
such other legal matters relating to the Underwriting Agreement, the
Registration Statement and the Prospectus as the Manager shall reasonably
require.
(e) The Manager shall have received on the Closing Date, a letter
dated the Closing Date in form and substance satisfactory to the Manager,
from the Guarantor's independent public accountants, containing statements
and information of the type ordinarily included in the Guarantor's
accountants' "comfort letters" to underwriters with respect to the
financial statements
-5-
<PAGE>
and certain financial information contained in or incorporated by reference
into the Registration Statement and the Prospectus.
(f) The Trust Agreement, the Guarantee and the Indenture shall have
been duly authorized, executed and delivered, in each case in a form
reasonably satisfactory to the Manager.
(g) The Securities to be sold by the Trust at such time of delivery
shall have been duly listed, subject to notice of issuance, on The New York
Stock Exchange.
V.
In further consideration of the agreements of the Underwriters
contained in the Underwriting Agreement, the Guarantor and the Trust jointly and
severally covenant as follows:
(a) To furnish the Manager, without charge, two conformed copies of
the Registration Statement including exhibits and materials, if any,
incorporated by reference therein and to each other Underwriter one
conformed copy of the Registration Statement without exhibits but including
any materials incorporated by reference therein and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus, any
documents incorporated by reference therein and any supplements and
amendments thereto as the Manager may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in the Underwriting
Agreement shall include all documents filed by the Guarantor with the
Commission subsequent to the date of the Basic Prospectus, pursuant to the
Securities Exchange Act of 1934, which are deemed to be incorporated by
reference into the Prospectus.
(b) To prepare the Prospectus as amended and supplemented in relation
to the applicable Offered Securities in a form approved by the Manager and
to file such Prospectus pursuant to Rule 424(b) under the Securities Act of
1933 not later than the Commission's close of business on the second
business day following the execution and delivery of the Underwriting
Agreement relating to the applicable Offered Securities or, if applicable,
such earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the
-6-
<PAGE>
Registration Statement or Prospectus as amended or supplemented after the
date of the Underwriting Agreement relating to such Securities and prior to
any Closing Date for such Securities which shall be disapproved by the
Manager for such Securities promptly after reasonable notice thereof; to
advise the Manger promptly of any such amendment or supplement after any
Closing Date for such Securities and furnish the Manager with copies
thereof; to file promptly all reports and any definitive proxy or
information statements required to be filed by the Guarantor pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
for so long as the delivery of a prospectus is required in connection with
the offering of sale of such Securities, and during such same period to
advise the Manager, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or
Prospectus or additional information; and, in the event of the issuance of
any stop order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification
promptly to use its best efforts to obtain the withdrawal of such order.
(c) If, during such period after the first date of the public
offering of the Offered Securities, as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur as
a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters
and to the dealers (whose names and addresses the Manager shall furnish to
the Guarantor) to which Offered Securities may have been sold by the
Manager on behalf of the Underwriters and to any other dealer upon request,
either amendments or supplements to the Prospectus so that the
-7-
<PAGE>
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate.
(e) To make generally available to its security holders as soon as
practicable an earnings statement covering a twelve-month period beginning
after the date of the Underwriting Agreement, which shall satisfy the
provisions of Section 11(a) of the Securities Act of 1933.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the last Closing Date for such
Offered Securities, the Guarantor and Trust will not offer, sell, contract
to sell or otherwise dispose of any Securities, any other beneficial
interest in the assets of the Trust, or any other securities of the Trust
or any other similar trust which are substantially similar to the Offered
Securities, including any guarantee of such securities, or any junior
subordinated debentures of the Guarantor issued to the Trust or other
similar trust, or any securities convertible into or exchangeable for or
representing the right to receive Securities, or any such substantially
similar securities of the Trust or any other similar trust, or any junior
subordinated debentures of the Guarantor issued to the Trust or other
similar trust, without the prior written consent of the Manager.
(g) In the case of the Guarantor, to issue the Guarantee and the
Junior Subordinated Debentures concurrently with the issue and sale of the
Offered Securities as contemplated herein.
(h) To use the net proceeds received by it from the sale of the
Junior Subordinated Debentures, and to cause the Trust to use the net
proceeds received by the Trust from the sale of Offered Securities
-8-
<PAGE>
pursuant to the Underwriting Agreement, in the manner specified in the
Prospectus under the caption "Use of Proceeds", and to further cause the
Trust to comply with the provisions of this Article V that are applicable
to it, including paragraph (f).
(i) To use its best efforts to list, subject to notice of issuance,
the Offered Securities on the New York Stock Exchange.
(j) To pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Guarantor's and the Trust's counsel and
accountants in connection with the registration of the Securities under the
Securities Act of 1933 and all other reasonable expenses in connection with
the preparation, printing and filing of the Registration Statement, any
preliminary prospectus and the Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the reasonable cost of typing any Agreement
among Underwriters, Underwriting Agreement and Blue Sky memorandum, closing
documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the
Securities; (iii) all reasonable expenses in connection with the
qualification of the Securities in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Article V(d) hereof, including fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with
the Blue Sky surveys; (iv) the cost or preparing certificates for the
Securities; (v) the cost and charges of any transfer agent or registrar or
distribution disbursement agent; and (vi) all other costs and expenses
incident to the performance of its obligations hereunder and under any
Overallotment Options which are not otherwise specifically provided for in
this section. It is understood, however, that, except as provided in this
section, Article VI and Article IX, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes
on resale of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
VI.
Each of the Guarantor and the Trust jointly and severally represents
and warrants to each Underwriter that:
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<PAGE>
(a) The Registration Statement has been declared effective by the
Commission and no stop order suspending the effectiveness of such
Registration Statement have been issued and no proceeding for that purpose
has been initiated or threatened by the Commission.
(b)(i) Each document, if any, filed or to be filed pursuant to the
Securities Exchange Act of 1934 and incorporated by reference in the
Prospectus complied or will comply when so filed in all material respects
with such Act and the rules and regulations thereunder, (ii) each part of
the Registration Statement (including the documents incorporated by
reference therein), filed with the Commission pursuant to the Securities
Act of 1933 relating to the Securities, when such part became effective,
did not contain any untrue statement of material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each preliminary prospectus, if
any, filed pursuant to Rule 424 under the Securities Act of 1933 complied
when so filed in all material respects with such Act and the applicable
rules and regulations thereunder, (iv) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and (v) the Registration
Statement and the Prospectus at the date of the Prospectus Supplement do
not contain and, as further amended or supplemented, if applicable, as of
their respective dates, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that these
representations and warranties do not apply to (x) that part of any
Registration Statement which constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939 of any trustee or (y) statements
or omissions in the Registration Statement, any preliminary prospectus or
the Prospectus based upon information furnished to the Guarantor in writing
by any Underwriter expressly for use therein.
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as amended or supplemented,
except as may otherwise be stated therein or contemplated thereby, (i)
there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Guarantor and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business and (ii) there have been no
material transactions entered into
-10-
<PAGE>
by the Guarantor or any of its subsidiaries other than those in the
ordinary course of business.
(d) The Guarantor has been duly incorporated, is validly existing in
good standing under the laws of the State of Delaware, is duly registered
as a bank holding company under The Bank Holding Company Act of 1956, and
has all requisite corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus,
except to the extent that the failure to have such corporate power and
authority would have a material adverse effect on the Guarantor and its
subsidiaries, considered as one enterprise.
(e) Wells Fargo Bank, National Association ("Bank") continues to hold
a valid certificate to do business as a national banking association under
the laws of the United States, the Bank has all requisite corporate power
and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus; all of the issued and outstanding
capital stock of the Bank has been duly and validly issued and is fully
paid and non-assessable (subject, however, to the provisions of Section 55,
Title 12, United States Code); and all of the capital stock of the Bank is
owned by the Guarantor, directly or indirectly, free and clear of any
mortgage, pledge, lien, encumbrance, claim or equity.
(f) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Trust Agreement and the
Business Trust Act of the State of Delaware and has the trust power and
authority to own its properties and conduct its business as described in
the Prospectus, and the Trust has conducted no business to date, and it
will conduct no business in the future that would be inconsistent with the
description of the Trust set forth in the Prospectus; the Trust is not a
party to or bound by any agreement or instrument other than the
Underwriting Agreement, the Trust Agreement and the agreements and
instruments contemplated by the Trust Agreement; the Trust has no
liabilities or obligations other than those arising out of the transactions
contemplated by the Underwriting Agreement and the Trust Agreement and
described in the Prospectus; based on expected operations and current law,
the Trust is not and will not be classified as an association taxable as a
corporation for United States federal income tax purposes; and the Trust is
not a party to or subject to any action, suit or proceeding of any nature.
-11-
<PAGE>
(g) The Offered Securities have been duly authorized by the Trust
Agreement and, when issued and delivered in accordance with the terms of
the Underwriting Agreement, the Trust Agreement and the Prospectus, will be
validly issued and, subject to the qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the assets of the
Trust under the Trust Agreement and the Delaware Business Trust Act and
will conform to the description of the Offered Securities contained in the
Prospectus; the issuance of the Offered Securities is not subject to any
preemptive or other similar rights; the Offered Securities will have the
rights set forth in the Trust Agreement; and the holders of Offered
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, provided that the holders of Offered Securities may be
obligated, pursuant to the Trust Agreement, (a) to provide indemnity and/or
security in connection with any pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities Certificates (as
defined in the Trust Agreement) and the issuance of replacement Preferred
Securities Certificates and (b) to provide security and indemnity in
connection with requests of or directions to the Property Trustee (as
defined in the Trust Agreement) to exercise its rights and remedies under
the Trust Agreement..
(h) The Common Securities of the Trust to be sold to the Guarantor
have been duly authorized by the Trust Agreement, and, when issued in
accordance with the terms of the Trust Agreement and delivered to the
Guarantor against payment therefor as described in the Prospectus, will
represent validly issued undivided beneficial interests in the assets of
the Trust and will conform to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Date all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Guarantor free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(i) The Guarantee, the Junior Subordinated Debentures, the Expense
Agreement and the Indenture (the Guarantee, the Junior Subordinated
Debentures, the Expense Agreement, the Trust Agreement and the Indenture
being collectively referred to as the "Guarantor Agreements") have each
been duly authorized and when validly executed and delivered by the
Guarantor will constitute valid and legally binding obligations of the
Guarantor, enforceable in accordance
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<PAGE>
with their respective terms, except as the enforceability thereof may be
limited by (i) bankruptcy, insolvency, moratorium, reorganization,
arrangement, liquidation, conservatorship, readjustment of debt, fraudulent
transfer and other similar laws affecting the rights of creditors
generally; and (ii) the discretion of any court of competent jurisdiction
in awarding equitable remedies, including, without limitation,
acceleration, specific performance or injunctive relief, and the effect of
general principles of equity embodied in California, Delaware and New York
statutes and common law. The Junior Subordinated Debentures are entitled to
the benefits of the Indenture; and the Guarantor Agreements will conform to
the descriptions thereof in the Prospectus.
(j) The Trust Agreement has been duly authorized and when validly
executed and delivered by the Guarantor and the Administrative Trustees as
of the Closing Date will constitute a valid and binding obligation of the
Guarantor and the Administrative Trustees, enforceable in accordance with
its terms, subject to the effect upon the Trust Agreement of (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws
relating to or affecting the rights and remedies of creditors generally,
(ii) principals of equity, including applicable law relating to fiduciary
duties (regardless of whether considered and applied in a proceeding in
equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(k) The execution and delivery by the Trust of, and the performance
by the Trust of its obligations under the Underwriting Agreement and the
Trust Agreement do not violate (A) the Trust Agreement or the Certificate
of Trust of the Trust, (B) any applicable Delaware law, rule or regulation
or (C) any provision of applicable law of the State of California or the
United States; will not contravene any provision of applicable law, the
Trust Agreement, the certificate of incorporation or by-laws of the
Guarantor or articles of association of by-laws of the Bank or any
agreement or other instrument binding upon the Trust, the Guarantor or the
Bank that is material to the Trust or the Guarantor and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Trust; and no consent,
approval, authorization, order, license, certificate, permit, registration
or qualification of, or with, any governmental or regulatory body is
required for the performance by the Trust of its obligations under the
Underwriting Agreement or the Trust Agreement, except such as may be
required by the securities or Blue
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<PAGE>
Sky laws of the various states in connection with the offer and sale of the
Offered Securities and Common Securities.
(l) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under the Underwriting
Agreement and the Guarantor Agreements, will not contravene any provision
of applicable law, the Trust Agreement, the certificate of incorporation or
by-laws of the Guarantor or articles of association or by-laws of the Bank
or any agreement or other instrument binding upon the Guarantor or the Bank
that is material to the Guarantor and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Guarantor or any subsidiary; and no consent,
approval, authorization or order of, or qualification with, any
governmental or regulatory body is required for the performance by the
Guarantor of its obligations under the Underwriting Agreement or the
Guarantor Agreements, except such as may be required by the securities or
Blue Sky laws of the various states in connection with the offer and sale
of the Junior Subordinated Debentures.
(m) Neither the Trust, the Guarantor nor the Bank is in violation of
its organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound, which violation or default would be material to
the Trust or the Guarantor and its subsidiaries taken as a whole.
(n) The statements set forth in the Prospectus under the captions
"Regulatory Capital Benefits to Wells Fargo & Company," "The Issuers,"
"Description of Junior Subordinated Debentures," "Description of Preferred
Securities," "Description of Guarantees," "Plan of Distribution" and such
other sections as may be identified in the Underwriting Agreement, are
accurate, complete and fair.
(m) The Trust is not, and after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus will not be an "investment company" that is
required to be registered under the Investment Company Act of 1940, as
amended, and the Guarantor is not, and after giving effect to the issuance
of the Junior Subordinated Debentures and the application of the proceeds
thereof as described in the Prospectus
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<PAGE>
will not be an "investment company" that is required to be registered under
the Investment Company Act of 1940, as amended.
The Guarantor and the Trust agree, jointly and severally, to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act of
1933 or Section 20 of the Securities Exchange Act of 1934, from and against any
and all losses, claims, damages and liabilities (including the fees and expenses
of counsel in connection with any governmental or regulatory investigation or
proceeding) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (if used
within the period set forth in paragraph (c) of Article V hereof and as amended
or supplemented if the Guarantor shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any 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 will reimburse
each Underwriter in connection with investigating or defending any such action
or claim as such expenses are incurred, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Guarantor or the Trust by any Underwriter expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Guarantor and the Trust, each of their respective directors or
trustees, each of their officers who sign the Registration Statement and any
person controlling the Guarantor or the Trust to the same extent as the
foregoing indemnity from the Guarantor to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing to
the Guarantor or Trust by such Underwriter expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel, related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
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<PAGE>
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 indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees
and expenses of more than one separate firm for all such indemnified parties.
Such firm shall be designated in writing by the Manager in the case of parties
indemnified pursuant to the second preceding paragraph and by the Guarantor or
the Trust in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its 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.
If the indemnification provided for in this Article VI is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, 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 Guarantor and the Trust on the one hand and the Underwriters on the other
from the offering of the Offered 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 Guarantor and the Trust on the one hand
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Guarantor and the Trust on the one hand and the Underwriters on the other
in connection with the offering of the Offered Securities shall be deemed to be
in the same proportion as the total net proceeds from the offering of such
Offered Securities (before deducting expenses) received by the Trust bear to the
total underwriting discounts and commissions received by the Underwriters in
respect thereof. The relative fault of the Guarantor and the Trust on the one
hand and of the Underwriters on the other 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 Guarantor and the Trust or by the Underwriters
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<PAGE>
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Guarantor, the Trust and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Article VI 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 which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amounts paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph 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 Article VI, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten and
distributed to the public by such Underwriter were offered to the public exceeds
the amount of any damages which 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 Securities Act of 1933) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several, in proportion to the respective principal amounts of
Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VI
and the representations and warranties of the Guarantor and the Trust in the
Underwriting Agreement shall remain operative and in full force and effect
regardless of (i) any termination of the Underwriting Agreement, (ii) any
investigation made by any Underwriter or on behalf of any Underwriter or any
person controlling any Underwriter or by or on behalf of the Guarantor or the
Trust, each of their respective directors or by officers or any person
controlling the Guarantor or the Trust and (iii) acceptance of and payment for
any of the Offered Securities.
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<PAGE>
VII.
The Underwriting Agreement shall be subject to termination by the
Manager, by notice given to the Guarantor, if, beginning on the date of the
applicable Underwriting Agreement and ending on the Closing Date or, in the case
of clause (i) below, since the respective dates as of which information is given
in the Registration Statement, as amended to the date of the applicable
Underwriting Agreement, (i) there has been any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Guarantor, the Trust
and their respective subsidiaries, taken as a whole, which makes it, in the
judgment of the Manager, impracticable to market the Offered Securities or
enforce contracts for the sale of the Offered Securities, (ii) there shall not
have occurred any downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a possible change with
possible negative implications, in the rating accorded any of the Guarantor's
securities by any "nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act of
1933, (iii) there shall have occurred any material adverse change in the
financial markets in the United States or any outbreak or escalation of
hostilities or other national or international calamity or crisis the effect of
which makes it, in the judgment of the Manager, impracticable to market the
Offered Securities or enforce contracts for the sale of the Offered Securities,
(iv) trading in securities generally on the New York Stock Exchange shall have
been suspended or materially limited or (v) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or New
York state authorities.
VIII.
If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it or they have agreed to
purchase under the applicable Underwriting Agreement on such date, and the
aggregate number of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed to purchase is not more than one-tenth of the
aggregate number of Offered Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Offered Securities set forth opposite their respective names in the applicable
Underwriting Agreement bears to the aggregate number of Offered Securities set
forth opposite the names of all such non-defaulting Underwriters,
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<PAGE>
or in such proportions as we may specify, to purchase the Offered Securities
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Offered
--------
Securities that any Underwriter has agreed to purchase pursuant to the
applicable Underwriting Agreement on such date be increased pursuant to this
Article VIII by an amount in excess of one-ninth of such number of Offered
Securities without the written consent of such Underwriter. If, on the Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities which it or they have agreed to purchase on such date and the
aggregate number of Offered Securities with respect to which such default occurs
is more than one-tenth of the aggregate number of Offered Securities to be
purchased on such date and arrangements satisfactory to us and you for the
purchase of such Offered Securities are not made within 36 hours after such
default, the Underwriting Agreement shall terminate without liability on the
part of any non-defaulting Underwriter, the Guarantor or the Trust. In any such
case either you or we shall have the right to postpone the Closing Date, but in
no event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under the Underwriting Agreement.
IX.
If the Underwriting Agreement shall be terminated by the Underwriters
or any of them, because of any failure or refusal on the part of the Guarantor
or the Trust to comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Guarantor or the Trust shall be
unable to perform its obligations under the Underwriting Agreement except
pursuant to Article VIII hereof, the Guarantor will reimburse the Underwriters
or such Underwriters as have so terminated the Underwriting Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Offered Securities.
The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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<PAGE>
Exhibit A
Opinion of Brobeck Phleger & Harrison LLP,
Counsel to the Guarantor
The opinion of Brobeck Phleger & Harrison LLP, counsel to the Guarantor, to
be delivered pursuant to Article IV, paragraph (b) of the document dated
____________, 1996 entitled Wells Fargo & Company Standard Terms Agreement
(Quarterly Income Preferred Securities) shall be to the effect that:
(i) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
Delaware with the power and authority to own its properties and conduct its
businesses as described in the Prospectus.
(ii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Guarantor and the Trust and is a valid and binding
agreement of the Guarantor and the Trust.
(iii) The Offered Securities have been duly authorized by the Trust
Agreement and, when issued and delivered in accordance with the terms of the
Underwriting Agreement, the Trust Agreement and the Prospectus, will be
validly issued and, subject to the qualifications set forth herein, fully
paid and non-assessable undivided beneficial interests in the assets of Trust
under the Trust Agreement and the Delaware Business Trust Act; the issuance
of such Offered Securities will not be subject to any preemptive or other
similar rights; and the holders of the Offered Securities, as beneficial
owners of the Trust, will be entitled to the same limitation of liability
extended to stockholders of private corporations for profit under the General
Corporation Law of the State of Delaware; provided that such counsel may note
that the holders of Offered Securities may be obligated, pursuant to the
Trust Agreement, (a) to provide indemnity and/or security in connection with
and pay taxes or governmental charges arising from transfers in connection
with and pay taxes or governmental charges arising from transfers or
exchanges of Preferred Securities Certificates (as defined in the Trust
Agreement) and the issuance of replacement Preferred Securities Certificates
and (b) to provide security and indemnity in connection with requests of or
directions to the Property Trustee (as defined in the Trust Agreement) to
exercise its rights and remedies under the Trust Agreement.
(iv) The Common Securities of the Trust to be sold to the Guarantor
have been duly authorized by the Trust Agreement and, when issued in
accordance with the terms of the Trust Agreement and delivered to the
Guarantor against
<PAGE>
payment therefor as described in the Prospectus, will represent validly
issued undivided beneficial interests in the assets of the Trust. Under the
Trust Agreement and the Delaware Business Trust Act, the issuance of the
Trust Common Securities is not subject to preemptive or other similar rights.
(v) The Guarantee, the Junior Subordinated Debentures, the Expense
Agreement and the Indenture have each been duly authorized, executed and
delivered by the Guarantor and each is a valid and binding obligation of the
Guarantor, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
moratorium, reorganization, arrangement, liquidation, conservatorship,
readjustment of debt, fraudulent transfer and other similar laws affecting
the rights of creditors generally; and (ii) the discretion of any court of
competent jurisdiction in awarding equitable remedies, including, without
limitation, acceleration, specific performance or injunctive relief, and the
effect of general principles of equity embodied in California, Delaware and
New York statutes and common law. The Junior Subordinated Debentures are
entitled to the benefits of the Indenture.
(vi) The Trust Agreement has been duly authorized, executed and
delivered by the Guarantor and the Administrative Trustees and is a valid and
binding obligation of the Guarantor and the Administrative Trustees,
enforceable in accordance with its terms, subject to the effect upon the
Trust Agreement of (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other
similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principals of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a
proceeding in equity or at law), and (ii) the effect of applicable public
policy on the enforceability of provisions relating to indemnification or
contribution.
(vii) The execution and delivery by the Trust of, and the performance
by the Trust of its obligations under, the Underwriting Agreement and the
Trust Agreement do not violate (A) the Trust Agreement or the Certificate of
Trust of the Trust, (B) any applicable Delaware law, rule or regulation or
(C) any provision of applicable law of the State of California or the United
States. No authorization, consent or approval of or filing with any
governmental or regulatory body is required for the performance by the Trust
of its obligations under the Underwriting Agreement or Trust Agreement,
except such as may be required by the securities or Blue Sky
laws of the various states in connection with the offer and sale of the
Offered Securities and Common Securities.
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(viii) The execution and delivery by the Guarantor of, and the
performance by the Guarantor of its obligations under the Underwriting
Agreement, the Trust Agreement, the Guarantee, the Indenture and the Junior
Subordinated Debentures, will not contravene any provision of applicable law
of the State of California, the United States, the General Corporate Law or
Business Trust Act of the State of Delaware or the Trust Agreement, or the
certificate of incorporation or by-laws of the Grantor or articles of
association or by-laws of the Bank. No authorization, consent or approval of
or filing with any governmental or regulatory body is required for the
performance by the Grantor of its obligations under the Underwriting
Agreement, the Trust Agreement, the Guarantee, the Indenture, the Expense
Agreement or the Junior Subordinated Debentures, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Junior Subordinated Debentures.
(ix) The statements in the Prospectus under the captions "The
Issuers," "Description of Junior Subordinated Debentures," "Description of
Preferred Securities," "Description of Guarantees," "Plan of Distribution"
and such other sections as may be identified in the Underwriting Agreement,
insofar as such statements constitutes a summary of the legal matters,
documents or proceedings referred to therein, fairly summarize the matters
referred to therein.
(x) Neither the Guarantor nor the Trust is, and after giving effect
to the issuance of the Offered Securities, Common Securities and the Junior
Subordinated Debentures and the application of the proceeds thereof as
described in the Prospectus, neither the Guarantor nor the Trust will be an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended.
(xi) For United States federal income tax purposes, the Trust will
be classified as a grantor trust and not as an association taxable as a
corporation and, accordingly, each holder of Offered Securities will
generally be considered the owner of an undivided interest in the Junior
Subordinated Debentures, and each holder will be required to include in its
gross income any interest and original issue discount accrued with respect to
its allocable share of those Debenture.
(xii) Although the discussion, if any, set forth in the Prospectus
Supplement under the heading "Certain Federal Income Tax Consequences" does
not purport to discuss all possible United States federal income tax
consequences of the purchase, ownership and disposition of the Offered
Securities, in such counsel's opinion such discussion constitutes, in all
A-3
<PAGE>
material respects, a fair and accurate summary of the United States federal
income tax consequences of the purchase, ownership and disposition of the
Offered Securities under current law.
(xiii) The Registration Statement is effective under the Securities
Act of 1933, as amended, and to the best of such counsel's knowledge, no
proceedings for a stop order are pending or threatened under Section 8(d) of
said Act.
(xiv) Such counsel (1) believes that each document, if any, filed
pursuant to the Exchange Act (except as to financial statements, schedules
and other related information included therein as to which such counsel need
to express any belief) and incorporated by reference in the Prospectus
complied when so filed as to form in all material respects with the
Securities Exchange Act of 1934, as amended, and the applicable rules and
regulations of the Securities and Exchange Commission thereunder, (2) has no
reason to believe (except as to financial statements, schedules and other
related information included therein as to which such counsel need not
express any belief) that any part of the registration statement (including
the documents incorporated by reference therein) filed with the Commission
pursuant to the Securities Act of 1933 relating to the Securities, when such
part became effective, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (3) believes that the
Registration Statement and Prospectus, as amended or supplemented, if
applicable (except as to financial statements or other financial information
included therein, as to which such counsel need not express any belief)
comply as to form in all material respects with the Securities Act of 1933
and the applicable rules and regulations thereunder and (4) has no reason to
believe that (except as to financial statements or other financial
information included therein, as to which such counsel need not express any
belief) the Registration Statement and the Prospectus on the date of the
Prospectus Supplement did, and the Prospectus, as amended or supplemented, if
applicable, on such Closing Date does, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
With respect to the opinions set forth in (i) and (iii) above, and
with respect to matters relating to the authority and validity of the Trust and
the agreements and obligations thereof under Delaware law in (ii), (iv), (vi)
and (vii) above, Brobeck Phleger & Harrison LLP may state that their opinion in
connection with such matters is made in reliance on the opinion of Delaware
counsel. With respect to the matters set forth in (xiv) above, Brobeck Phleger
& Harrison LLP
A-4
<PAGE>
may state that their belief is based upon their participation in
the preparation of the Registration Statement and the Prospectus and any
amendments and supplements thereto and review and discussion of the contents
thereof, but is without independent check or verification, except as specified.
A-5
<PAGE>
Exhibit B
Opinion of the Chief Counsel to the Guarantor
The opinion of the Chief Counsel to the Guarantor, to be delivered
pursuant to Article IV, paragraph (c) of the document dated ___________, 1996
entitled Wells Fargo & Company Standard Terms Agreement (Quarterly Income
Preferred Securities) shall be to the effect that:
(i) The Guarantor has been duly incorporated, is validly existing
in good standing under the laws of the State of Delaware, is duly
registered as a bank holding company under the Bank Holding Company Act of
1956, as amended, and has all requisite corporate power and authority to
own its property and to conduct its business as described in the
Prospectus.
(ii) The Bank continues to hold a valid certificate to do business
as a national banking association under the laws of the United States, the
Bank has the corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus; all of
the issued and outstanding capital stock of the Bank has been duly and
validly issued and is fully paid and non-assessable (subject, however, to
the provisions of Section 55, Title 12, United States Code); and all of the
capital stock of the Bank is owned by the Guarantor, directly or
indirectly, free and clear of any mortgage, pledge, lien, encumbrance,
claim or equity.
(iii) To the best knowledge and information of such counsel, there
are no contracts, indentures, mortgages, loan agreements, leases or other
documents of a character required to be described or referred to in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement other than those specifically described or referred
to therein or filed as exhibits thereto or to materials incorporated by
reference therein, and the description thereof or reference thereto was
correct at the date that the document incorporated by reference in the
Registration Statement or Prospectus which contains such description or
reference was filed with the Commission or, if not so incorporated by
reference is correct, provided, however, that such counsel need not express
any opinion regarding such documents to the extent that they are required
to be described or referred to in the financial statements or other
financial information but not otherwise in the Registration Statement or
Prospectus.
(iv) The statements as to matters of law or legal conclusions
contained under the caption "Supervision and Regulation" in the Guarantor's
latest annual report on form 10-K which is incorporated by reference in the
Prospectus were correct as of the date such report was filed with the
B-1
<PAGE>
Commission, and such statements fairly present the matters referred to in
such report.
B-2
<PAGE>
EXHIBIT 1(m)
WELLS FARGO & COMPANY
$3,500,000,000
Medium-Term Notes
and
Subordinated Medium-Term Notes, Series B
Due from Nine Months to 12 Years from Date of Issue
AMENDMENT NO. 7
TO THE
FINDER AGREEMENT DATED JANUARY 23, 1991,
AS AMENDED BY
AMENDMENT NO. 1 DATED MARCH 14, 1991
AND
AMENDMENT NO. 2 DATED SEPTEMBER 27, 1991
AND
AMENDMENT NO. 3 DATED APRIL 29, 1992
AND
AMENDMENT NO. 4 DATED DECEMBER 23, 1992
AND
AMENDMENT NO. 5 DATED MARCH 24, 1994
AND
AMENDMENT NO. 6 DATED AUGUST 24, 1995
September 11, 1996
Wells Fargo Bank, National Association
420 Montgomery Street
San Francisco, California 94163
Ladies and Gentlemen:
Reference is made to the Finder Agreement dated January 23, 1991 (the
"Finder Agreement"), as amended by Amendment No. 1 thereto dated March 14, 1991
("Amendment No. 1"), Amendment No. 2 thereto dated September 27, 1991
("Amendment No. 2"), Amendment No. 3 thereto dated April 29, 1992 ("Amendment
No. 3"), Amendment No. 4 thereto dated December 23, 1992 ("Amendment No. 4"),
Amendment No. 5 thereto dated March 24, 1994 ("Amendment No. 5") and Amendment
No. 6 thereto dated August 24, 1995 ("Amendment No. 6") each between Wells Fargo
& Company, a Delaware corporation (the "Company"), and Wells Fargo Bank,
National Association (the "Finder"), with respect to the issuance
1.
<PAGE>
and sale by the Company of its Medium-Term Notes described therein. The parties
hereto acknowledge that (i) this Amendment No. 7 ("Amendment No. 7") shall
relate only to the Company's Medium-Term Notes that are issued, or as to which
offers to purchase have been accepted by the Company, on or after the date
hereof; and (ii) the Company's Medium-Term Notes that have been issued and sold,
or as to which offers to purchase have been accepted by the Company, prior to
the date hereof shall not be affected by this Amendment No. 7, but shall instead
continue to be governed by the Finder Agreement, as amended by Amendment No. 1,
Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5 and Amendment
No. 6 or the Distribution Agreement dated September 11, 1996 between the Company
and the Agents named therein, as the case may be. Terms not otherwise defined
herein shall have the meanings ascribed to them in the Finder Agreement.
With respect to the Medium-Term Notes issuable pursuant to this Amendment
No. 7, references in the Finder Agreement to the "Agreement" shall be deemed to
mean the Finder Agreement as amended by Amendment No. 1, Amendment No. 2,
Amendment No. 3, Amendment No. 4, Amendment No. 5, Amendment No. 6 and this
Amendment No. 7 thereto, and references therein to the date of the Agreement
shall be deemed to be to the date of this Amendment No. 7 thereto.
Additionally, references to the Senior Trustee or Subordinated Trustee, as the
case may be, shall be deemed to refer to its authenticating agent if one has
been appointed.
The Finder Agreement, as amended by Amendment No. 1, Amendment No. 2,
Amendment No. 3, Amendment No. 4, Amendment No. 5 and Amendment No. 6, is hereby
further amended by the parties thereto as follows:
1. The introductory paragraph beginning on page 1 thereof, as amended by
Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment
No. 5 and Amendment No. 6, is deleted and replaced with the following:
Wells Fargo & Company, a Delaware corporation (the "Company"), confirms its
agreement with you with respect to the issue and sale by the Company of up to
$3,500,000,000 (or the equivalent thereof in one or more foreign currencies or
currency units) aggregate principal amount of its Medium-Term Notes due from
Nine Months to Twelve Years from Date of Issue (the "Notes," which term shall
include the Senior Notes and the Subordinated Notes). The "Senior Notes" are
the Company's Medium-Term Notes to be issued under an Indenture dated as of
September 1, 1984 between the Company and The Chase Manhattan Bank (formerly
known as Chemical Bank) as successor trustee (the "Senior Trustee"), as amended
by the First Supplemental Indenture dated as of April 15, 1986, the Second
Supplemental Indenture dated as of June 30, 1987 and the Third Supplemental
Indenture dated as of January 23, 1991
2.
<PAGE>
(collectively, the "Senior Indenture"). The "Subordinated Notes" are the
Company's Subordinated Medium-Term Notes, Series B, to be issued under an
Indenture dated as of December 10, 1992 (the "Subordinated Indenture") between
the Company and Marine Midland Bank (the "Subordinated Trustee"). The Notes will
have the maturities, interest rates, redemption provisions, if any, and other
terms as set forth in one or more supplements to the Prospectus referred to
below. The Senior Indenture and the Subordinated Indenture are sometimes herein
referred to together as the "Indentures" or individually as an "Indenture," and
the Senior Trustee and the Subordinated Trustee are sometimes herein referred to
together as the "Trustees" or individually as a "Trustee." The Company shall
designate at the time of such issuance whether the Notes to be issued are Senior
Notes or Subordinated Notes. The Finder Agreement supersedes the agreement dated
April 21, 1986.
2. Section 1.(a) beginning on page 2 thereof, as amended by Amendment No. 1,
Amendment No. 2, Amendment No. 3, Amendment No. 4, Amendment No. 5 and Amendment
No. 6, is deleted and replaced with the following:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on such
Form (Registration No. 333-10469), which registration statement, as amended
(if applicable), has become effective, for the registration under the Act
of the Notes. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the
"Registration Statement." The Registration Statement, as amended at the
date of this Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all other material respects with
said Rule. The Company proposes to file with the Commission from time to
time, pursuant to Rule 424(b)(3) under the Act, supplements to the
prospectus and prospectus supplement relating to the Notes transmitted for
filing with the Commission pursuant to Rule 424(b) under the Act which will
describe certain terms of the Notes and, subject to Section 3(a), prior to
any such filing will advise the Finder of all further information
(financial and other) with respect to the Company to be set forth therein
other than the specific terms of the Notes offered thereby. Such prospectus
and prospectus supplement in the form transmitted for filing with the
Commission pursuant to Rule 424(b) under the Act on September 11, 1996, is
herein called the "Prospectus." Any reference herein to the Registration
Statements or Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item
3.
<PAGE>
12 of Form S-3 which were filed under the Act or under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the date of such Prospectus, as the case may be; and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statements or 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 such Prospectus, as the case may be,
deemed to be incorporated therein by reference.
3. The first dollar amount contained in Section 4(b)(i)(C) on page 13 thereof,
as amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, Amendment No.
4, Amendment No. 5 and Amendment No. 6, is deleted and replaced with
$3,500,000,000 and the parenthetical phrase in such Section is deleted.
4. References in the Procedures (as defined in Section 2(c) on page 6 thereof)
to each "Agent" or to the "Agents" shall mean the Agents, individually or
collectively, as the case may be.
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 between the
Company and the Agents.
Very truly yours,
WELLS FARGO & COMPANY
By: /s/ Alan J. Pabst
----------------------
Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By: /s/ Rodney L. Jacobs
-------------------------
Title:
By: /s/ Guy Rounsaville, Jr.
--------------------------
Title:
4.
<PAGE>
EXHIBIT 4(f)
- --------------------------------------------------------------------------------
WELLS FARGO & COMPANY
and
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
___________
INDENTURE
Dated as of November 27, 1996
JUNIOR SUBORDINATED DEBENTURES
- --------------------------------------------------------------------------------
<PAGE>
Reconciliation and Tie Sheet*
between
Provisions of the Trust Indenture Act of 1939, as amended
and
Indenture Dated as of December 10, 1992
between
Wells Fargo & Company
and
The First National Bank of Chicago, Trustee
<TABLE>
<CAPTION>
Section of Act Section of Indenture
-------------- --------------------
<S> <C>
310(a)(1) 7.09
310(a)(2) 7.09
310(a)(3) Inapplicable
310(a)(4) Inapplicable
310(b) 7.08, 7.10
310(c) Inapplicable
311(a) 7.13(a), 7.13(c)
311(b) 7.13(b), 7.13(c)
311(c) Inapplicable
312(a) 5.01, 5.02(a)
312(b) 5.02(b)
312(c) 5.02(c)
313(a) 5.04(a)
313(b)(1) Inapplicable
313(b)(2) 5.04(b)
313(c) 5.04(c)
313(d) 5.04(d)
314(a)(1) 5.03(a)
314(a)(2) 5.03(b)
314(a)(3) 5.03(c)
314(a)(4) 4.06
314(b) Inapplicable
314(c)(1) 15.04
314(c)(2) 15.04
314(c)(3) Inapplicable
314(d) Inapplicable
314(e) 15.04
314(f) Omitted
315(a) 7.01
315(b) 6.07
315(c) 7.01
315(d) 7.01
315(e) 6.08
316(a)(1) 6.06, 8.04
316(a)(2) Omitted
316(b) 6.04
316(c) 10.05
317(a) 6.02
317(b) 4.04
318(a) 15.06
</TABLE>
- ---------------------
*This Reconciliation and Tie Sheet is not part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE DEFINITIONS
Section 1.01. Certain terms defined............................................................................... 1
Additional Interest................................................................................. 2
Additional Sum...................................................................................... 2
Administrative Trustee.............................................................................. 2
Authenticating Agent................................................................................ 2
Authorized Newspaper................................................................................ 2
Bank................................................................................................ 2
Board of Directors.................................................................................. 2
Business Day........................................................................................ 2
Capital Stock....................................................................................... 3
Capital Treatment Event............................................................................. 3
Commission.......................................................................................... 3
Common Stock........................................................................................ 3
Company............................................................................................. 3
Depositary.......................................................................................... 3
Distributions....................................................................................... 3
Event of Default.................................................................................... 4
Extension Period:................................................................................... 4
Indenture........................................................................................... 4
Investment Company Event............................................................................ 4
Maturity............................................................................................ 4
1940 Act............................................................................................ 4
Officers' Certificate............................................................................... 4
Opinion of Counsel.................................................................................. 4
Original Issue Date................................................................................. 5
Original Issue Discount Security.................................................................... 5
Paying Agent........................................................................................ 5
Person.............................................................................................. 5
Principal........................................................................................... 5
Property Trustee.................................................................................... 5
Ranking junior to the Securities.................................................................... 5
Ranking on a parity with the Securities............................................................. 5
Register............................................................................................ 6
Resolution of the Company........................................................................... 6
Responsible Officer................................................................................. 6
Rights Plan......................................................................................... 6
Security or Securities; outstanding................................................................. 6
Securityholder; registered holder................................................................... 7
Senior Indebtedness of the Company.................................................................. 7
Stated Maturity..................................................................................... 8
Subsidiary.......................................................................................... 8
Tax Event........................................................................................... 8
Trust Agreement..................................................................................... 8
Trustee; Principal Office of the Trustee............................................................ 8
Trust Indenture Act of 1939......................................................................... 9
Wells Fargo Guarantee............................................................................... 9
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE TWO ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF TRANSFER
AND EXCHANGE OF SECURITIES
Section 2.01. Amount, series and delivery of Securities.......................................................... 9
Section 2.02. Form of Securities and Trustee's Certificate....................................................... 12
Section 2.03. Denominations of and payment of interest on Securities............................................. 14
Section 2.04. Execution of Securities............................................................................ 14
Section 2.05. Registration, transfer and exchange of Securities.................................................. 15
Section 2.06. Temporary Securities............................................................................... 16
Section 2.07. Mutilated, destroyed, lost or stolen Securities.................................................... 16
Section 2.08. Cancellation and destruction of surrendered Securities............................................. 17
Section 2.09. Authenticating Agents.............................................................................. 17
Section 2.10. Deferrals of Interest Payment Dates................................................................ 18
Section 2.11. Right of set-Off................................................................................... 19
Section 2.12. Shortening or Extension of Stated Maturity......................................................... 19
Section 2.13. Agreed tax treatment............................................................................... 19
ARTICLE THREE REDEMPTION OF SECURITIES
Section 3.01. Applicability of Article........................................................................... 20
Section 3.02. Mailing of notice of redemption.................................................................... 20
Section 3.03. When Securities called for redemption become due and payable....................................... 21
Section 3.04. Right of redemption of Securities initially issued to a Wells Fargo Trust.......................... 21
ARTICLE FOUR PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of principal of and interest on Securities................................................. 21
Section 4.02. Maintenance of offices or agencies for registration of transfer, exchange and
payment of Securities.............................................................................. 22
Section 4.03. Appointment to fill a vacancy in the office of Trustee............................................. 22
Section 4.04. Duties of Paying Agent............................................................................. 22
Section 4.05. Further assurances................................................................................. 23
Section 4.06. Officers' Certificate as to defaults; notices of certain defaults.................................. 23
Section 4.07. Waiver of covenants................................................................................ 23
Section 4.08. Additional Sums.................................................................................... 23
Section 4.09. Additional Covenants............................................................................... 24
ARTICLE FIVE SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. Company to furnish Trustee information as to the names and addresses of
Securityholders.................................................................................... 24
Section 5.02. Trustee to preserve information as to the names and addresses of
Securityholders received by it..................................................................... 25
Section 5.03. Annual and other reports to be filed by Company with Trustee....................................... 26
Section 5.04. Trustee to transmit annual report to Securityholders............................................... 26
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE SIX REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON
EVENT OF DEFAULT
Section 6.01. Events of Default defined.......................................................................... 27
Section 6.02. Covenant of Company to pay to Trustee whole amount due on Securities on
default in payment of interest or principal........................................................ 29
Section 6.03. Application of moneys collected by Trustee......................................................... 30
Section 6.04. Limitation on suits by holders of Securities....................................................... 31
Section 6.05. On default Trustee may take appropriate action..................................................... 32
Section 6.06. Rights of holders of majority in principal amount of Securities to direct
Trustee and to waive default....................................................................... 32
Section 6.07. Trustee to give notice of defaults known to it, but may withhold in certain
circumstances...................................................................................... 32
Section 6.08. Requirement of an undertaking to pay costs in certain suits under the
Indenture or against the Trustee................................................................... 33
ARTICLE SEVEN CONCERNING THE TRUSTEE
Section 7.01. Upon Event of Default occurring and continuing, Trustee shall exercise
powers vested in it, and use same degree of care and skill in their exercise,
as a prudent man would use......................................................................... 33
Section 7.02. Reliance on documents, opinions, etc............................................................... 34
Section 7.03. Trustee not liable for recitals in Indenture or in Securities...................................... 35
Section 7.04. May own Securities................................................................................. 35
Section 7.05. Moneys received by Trustee to be held in trust without interest.................................... 35
Section 7.06. Trustee entitled to compensation, reimbursement and indemnity...................................... 35
Section 7.07. Right of Trustee to rely on Officers' Certificate where no other evidence
specifically prescribed............................................................................ 36
Section 7.08. Disqualification; conflicting interests............................................................ 36
Section 7.09. Requirements for eligibility of Trustee............................................................ 36
Section 7.10. Resignation of Trustee............................................................................. 36
Section 7.11. Acceptance by successor Trustee.................................................................... 37
Section 7.12. Successor to Trustee by merger, consolidation or succession to business............................ 38
Section 7.13. Limitations on rights of Trustee as a creditor to obtain payment of certain
claims within three months prior to default or during default, or to realize
on property as such creditor thereafter............................................................ 38
ARTICLE EIGHT CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of action by Securityholders.............................................................. 41
Section 8.02. Proof of execution of instruments and of holding of Securities..................................... 42
Section 8.03. Who may be deemed owners of Securities............................................................. 42
Section 8.04. Securities owned by Company or controlled or controlling persons
disregarded for certain purposes................................................................... 42
Section 8.05. Instruments executed by Securityholders bind future holders........................................ 43
ARTICLE NINE SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes for which meetings may be called.......................................................... 43
Section 9.02. Manner of calling meetings......................................................................... 43
Section 9.03. Call of meeting by Company or Securityholders...................................................... 43
Section 9.04. Who may attend and vote at meetings................................................................ 44
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C> <C>
Section 9.05. Regulations may be made by Trustee................................................................. 44
Section 9.06. Manner of voting at meetings and record to be kept................................................. 44
Section 9.07. Exercise of rights of Trustee, Securityholders and holders of Preferred
Securities not to be hindered or delayed........................................................... 45
ARTICLE TEN SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for which supplemental indentures may be entered into without
consent of Securityholders......................................................................... 45
Section 10.02. Modification of Indenture with consent of holders of a majority in principal
amount of Securities............................................................................... 46
Section 10.03. Effect of supplemental indentures.................................................................. 47
Section 10.04. Securities may bear notation of changes by supplemental indentures................................. 47
Section 10.05. Revocation and effect of consents.................................................................. 48
ARTICLE ELEVEN CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. Company may consolidate, etc., on certain terms.................................................... 48
Section 11.02. Successor corporation substituted.................................................................. 48
Section 11.03. Opinion of Counsel to Trustee...................................................................... 49
ARTICLE TWELVE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED
MONEYS
Section 12.01. Satisfaction and discharge of Indenture............................................................ 49
Section 12.02. Application by Trustee of funds deposited for payment of Securities................................ 49
Section 12.03. Repayment of moneys held by Paying Agent........................................................... 49
Section 12.04. Repayment of moneys held by Trustee................................................................ 50
ARTICLE THIRTEEN IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
Section 13.01. Incorporators, stockholders, officers, directors and employees of Company
exempt from individual liability................................................................... 50
ARTICLE FOURTEEN SUBORDINATION OF SECURITIES
Section 14.01. Agreement to subordinate........................................................................... 50
Section 14.02. Obligation of the Company unconditional............................................................ 52
Section 14.03. Limitations on duties to holders of Senior Indebtedness of the Company............................. 52
Section 14.04. Notice to Trustee of facts prohibiting payment..................................................... 52
Section 14.05. Application by Trustee of moneys deposited with it................................................. 53
Section 14.06. Subrogation........................................................................................ 53
Section 14.07. Subordination rights not impaired by acts or omissions of Company or
holders of Senior Indebtedness of the Company...................................................... 53
Section 14.08. Authorization of Trustee to effectuate subordination of Securities................................. 53
Section 14.09. No Payment when Senior Indebtedness in default..................................................... 53
Section 14.10. Right of Trustee to hold Senior Indebtedness of the Company........................................ 54
Section 14.11. Article Fourteen not to prevent defaults........................................................... 54
</TABLE>
v
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE FIFTEEN CONVERSION OF SECURITIES
Section 15.01. Applicability of Article........................................................................... 54
Section 15.02. Conversion privilege............................................................................... 54
Section 15.03. Exercise of conversion privilege................................................................... 54
Section 15.04. Fractional interests............................................................................... 55
Section 15.05. Conversion Price................................................................................... 55
Section 15.06. Adjustment of Conversion Price..................................................................... 55
Section 15.07. Continuation of conversion privilege in case of reclassification, change,
merger, consolidation or sale of assets............................................................ 57
Section 15.08. Notice of certain events........................................................................... 58
Section 15.09. Taxes on conversion................................................................................ 59
Section 15.10. Company to provide Stock........................................................................... 59
Section 15.11. Disclaimer of responsibility for certain matters................................................... 59
Section 15.12. Return of funds deposited for redemption of converted Securities................................... 59
ARTICLE SIXTEEN MISCELLANEOUS PROVISIONS
Section 16.01. Successors and assigns of Company bound by Indenture............................................... 60
Section 16.02. Acts of board, committee or officer of successor corporation valid................................. 60
Section 16.03. Required notices or demands may be served by mail.................................................. 60
Section 16.04. Officers' Certificate and Opinion of Counsel to be furnished upon
applications or demands by the Company............................................................. 60
Section 16.05. Payments due on Saturdays, Sundays, and holidays................................................... 61
Section 16.06. Provisions required by Trust Indenture Act of 1939 to control...................................... 61
Section 16.07. Indenture and Securities to be construed in accordance with the laws of the
State of California................................................................................ 61
Section 16.08. Provisions of the Indenture and Securities for the sole benefit of the parties
and the Securityholders............................................................................ 61
Section 16.09. Indenture may be executed in counterparts.......................................................... 61
Section 16.10. Securities in foreign currencies................................................................... 61
</TABLE>
vi
<PAGE>
THIS INDENTURE, dated as of the 27th day of November, 1996 between
WELLS FARGO & COMPANY, a corporation duly organized and existing under the laws
of the State of Delaware (hereinafter sometimes referred to as the "Company"),
party of the first part, and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association duly organized and existing under the laws of the United
States of America (hereinafter sometimes referred to as the "Trustee"), party of
the second part,
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issuance from time to time of its unsecured junior subordinated
debentures or other evidences of indebtedness (hereinafter referred to as the
"Securities"), without limit as to principal amount, issuable in one or more
series, the amount and terms of each such series to be determined as hereinafter
provided, including, without limitation, Securities issued to evidence loans
made to the Company of the proceeds from the issuance from time to time by one
or more business trusts (each a "Wells Fargo Trust," and collectively, the
"Wells Fargo Trusts") of preferred interests in such Trusts (the "Preferred
Securities" which may also be referred to, without limitation, as the "Capital
Securities") and common interests in such Trusts (the "Common Securities," and
collectively with the Preferred Securities, the "Trust Securities"); to be
authenticated by the certificate of the Trustee; and, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all acts and things necessary to make the Securities when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed and the execution of this
Indenture and the issue hereunder of the Securities have in all respects been
duly authorized, and the Company, in the exercise of the legal rights and power
vested in it, executes this Indenture and proposes to make, execute, issue and
deliver the Securities;
NOW, THEREFORE, in order to declare the terms and conditions upon
which the Securities are authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Securities by the holders thereof, the Company covenants and agrees with the
Trustee, for the equal and proportionate benefit of the respective holders from
time to time of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. CERTAIN TERMS DEFINED. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) The terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) All other terms used herein which are defined in the Trust
Indenture Act of 1939, as amended, either directly or by reference therein, have
the meanings assigned to them therein;
(c) All accounting terms used herein and not expressly defined herein
shall have the meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
with respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; and
(d) The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
1
<PAGE>
Additional Interest:
The term "Additional Interest" means the interest, if any, that shall
accrue on any interest on the securities of any series the payment of which has
not been made on the applicable interest payment date and which shall accrue at
the rate per annum specified or determined as specified in such Security.
Additional Sums:
The term "Additional Sums" shall have the meaning specified in Section
4.08.
Administrative Trustee:
The term "Administrative Trustee" means, in respect of any Wells Fargo
Trust, each Person identified as an "Administrative Trustee" in the related
Trust Agreement, solely in such Person's capacity as Administrative Trustee of
such Wells Fargo Trust under such Trust Agreement and not in such Person's
individual capacity, or any successor administrative trustee appointed as
therein provided.
Authenticating Agent:
The term "Authenticating Agent" shall mean any Authenticating Agent
appointed by the Trustee pursuant to Section 2.09.
Authorized Newspaper:
The term "Authorized Newspaper" shall mean a newspaper in the city of
San Francisco, State of California, and the Borough of Manhattan, The City of
New York, State of New York, each of which is printed in the English language
and customarily published at least once a day for at least five days in each
calendar week and of general circulation in the respective cities. Whenever
successive publications are required to be made in an Authorized Newspaper, the
successive publications may be made in the same or in a different newspaper
meeting the foregoing requirements and in each case on any day of the week. If
it is impossible or, in the opinion of the Trustee, impracticable to publish any
notice in the manner herein provided, then such publication in lieu thereof as
shall be made with the approval of the Trustee shall constitute a sufficient
publication of such notice.
Bank:
The term "Bank" shall mean Wells Fargo Bank, National Association, and
any successor or successors to all or substantially all of the business of Wells
Fargo Bank, National Association, as presently constituted.
Board of Directors:
The term "Board of Directors," when used with reference to the
Company, shall mean the Board of Directors of the Company or the Executive
Committee or any other committee of or created by the Board of Directors of the
Company duly authorized to act hereunder.
Business Day:
The term "business day" shall mean any day which is not a Saturday or
Sunday and which in the City of San Francisco or the City of Chicago is neither
a legal holiday nor a day on which banking institutions are authorized by law or
executive order to close or a day on which the corporate trust office of the
Trustee is closed for business.
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Capital Stock:
The term "Capital Stock" shall mean shares of capital stock of any
class of any corporation whether now or hereafter authorized regardless of
whether such capital stock shall be limited to a fixed sum or percentage in
respect of the rights of the holders thereof to participate in dividends and in
the distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up.
Capital Treatment Event:
The term "Capital Treatment Event" means the reasonable determination
by the Company that, as a result of the occurrence of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision
thereof or therein, or as a result of any official or administrative
pronouncement or action or judicial decision interpreting or applying such laws
or regulations, which amendment or change is effective or which pronouncement,
action or decision is announced on or after the date of issuance of the Capital
Securities under this Trust Agreement, there is more than an insubstantial risk
that the Company will not be entitled to treat an amount equal to the aggregate
Liquidation Amount of the Capital Securities as "Tier 1 Capital" (or the then
equivalent thereof) for purposes of the capital adequacy guidelines of the
Federal Reserve, as then in effect and applicable to the Company.
Commission:
The term "Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, as amended, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties on such date.
Common Stock:
The term "Common Stock" means the common stock, par value $5.00 per
share, of the Company.
Company:
The term "Company" shall mean Wells Fargo & Company, a corporation
duly organized and existing under the laws of the State of Delaware and, subject
to the provisions of Article Eleven, shall also include its successors and
assigns.
Depositary:
The term "Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more global
Securities, the person designated as Depositary by the Company pursuant to
Section 2.01 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter the term "Depositary"
shall mean or include each person who is then a Depositary hereunder and if at
any time there is more than one such person, the term "Depositary" as used with
respect to the Securities of any series shall mean the Depositary with respect
to the Securities of such series.
Distributions:
The term "Distributions," with respect to the Trust Securities issued
by a Wells Fargo Trust, means amounts payable in respect of such Trust
Securities as provided in the related Trust Agreement and referred to therein as
"Distributions."
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Event of Default:
The term "Event of Default" with respect to Securities of any series
shall mean any event specified as such in Section 6.01 and any other event as
may be established with respect to the Securities of such series as contemplated
by Section 2.01.
Extension Period::
The term "Extension Period" has the meaning specified in Section 2.10.
Indenture:
The term "Indenture" shall mean this instrument as originally
executed, or, if amended or supplemented as herein provided, then as so amended
or supplemented, and shall include the form and terms of particular series of
Securities established as contemplated by Sections 2.01 and 2.02.
Investment Company Event:
The term "Investment Company Event" means in respect of Wells Fargo
Trust, the receipt by Wells Fargo Trust of an Opinion of Counsel, rendered by a
law firm experienced in such matters, to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), such Wells Fargo
Trust is or will be considered an investment company that is required to be
registered under the 1940 Act, which Change in 1940 Act Law becomes effective on
or after the date of original issuance of the Preferred Securities of such Wells
Fargo Trust.
Maturity:
The term "Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
1940 Act:
The term "1940 Act" means the Investment Company Act of 1940, as
amended.
Officers' Certificate:
The term "Officers' Certificate" shall mean a certificate signed by
the Chairman of the Board, any Vice Chairman of the Board, the President, any
Vice Chairman or any Vice President of the Company (whether or not designated by
a number or a word or words added before or after the title Vice President) and
by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee. Each such certificate
shall include the statements provided for in Section 16.04, if and to the extent
required by the provisions thereof and will comply with Section 3.14 of the
Trust Indenture Act of 1939.
Opinion of Counsel:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel, who shall be satisfactory to the Trustee, and who may be an
employee of, or counsel to, the Company and delivered to the Trustee. Each such
opinion shall include the statements provided for in Section 16.04, if and to
the extent required by the provisions thereof and will comply with Section 3.14
of Trust Indenture Act of 1939.
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Original Issue Date:
The term "Original Issue Date" means the first date of issuance of
each Security.
Original Issue Discount Security:
The term "Original Issue Discount Security" shall mean any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon declaration pursuant to Section 6.01.
Paying Agent:
The term "Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal or interest on any securities on behalf of the
Company.
Person:
The term "Person" or "person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Principal:
The term "principal," wherever used with reference to the Securities
or any Security or any portion thereof, shall be deemed to include "and premium,
if any."
Property Trustee:
The term "Property Trustee" means, in respect of any Wells Fargo
Trust, the commercial bank or trust company identified as the "Property Trustee"
in the related Trust Agreement, solely in its capacity as Property Trustee of
such Wells Fargo Trust under such Trust Agreement and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as therein provided.
Ranking junior to the Securities:
The term "ranking junior to the Securities" when used with respect to
any obligation of the Company shall mean (i) any Wells Fargo Guarantee of
Preferred Securities of any Wells Fargo Trust, and (ii) any other obligation of
the Company which (a) ranks junior to and not equally with or prior to the
Securities (or any other obligations of the Company ranking on a parity with the
Securities) in right of payment upon the happening of any event of the kind
specified in the first sentence of the first paragraph of Section 14.01, or (b)
is specifically designated as ranking junior to the Securities by express
provision in the instrument creating or evidencing such obligation.
The securing of any obligations of the Company, otherwise ranking
junior to the Securities, shall be deemed to prevent such obligations from
constituting obligations ranking junior to the Securities.
Ranking on a parity with the Securities:
The term "ranking on a parity with the Securities" when used with
respect to any obligation of the Company shall mean any obligation of the
Company which (a) ranks equally with and not prior to the Securities in right of
payment upon the happening of any event of the kind specified in the first
sentence of the first paragraph of Section 14.01, or (b) is specifically
designated as ranking on a parity with the Securities by express provision in
the instrument creating or evidencing such obligation.
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The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities, shall not be deemed to prevent such obligations from
constituting obligations ranking on a parity with the Securities.
Register:
The term "Register" shall have the meaning specified in Section 2.05.
Resolution of the Company:
The term "Resolution of the Company" means a resolution of the
Company, in the form of a resolution of the Board of Directors or in the form of
a resolution of senior officers of the Company pursuant to the Bylaws,
authorizing, ratifying, setting forth or otherwise validating agreements,
execution and delivery of documents, the issuance, form and terms of securities,
or any other actions or proceedings pursuant or with respect to this Indenture.
Responsible Officer:
The term "Responsible Officer," when used with respect to the Trustee,
shall mean the chairman and vice chairman of the board of directors, the
president, the chairman and vice chairman of the executive committee of the
board of directors, every vice president or officer senior thereto, every
assistant vice president, the secretary, every assistant secretary, the
treasurer, every assistant treasurer, every corporate trust officer, every
assistant corporate trust officer, and every other officer and assistant officer
of the Trustee customarily performing functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his knowledge of, and familiarity
with, a particular subject.
Rights Plan:
The term "Rights Plan" means a plan of the Company providing for the
issuance by the Company to all holders of its Common Stock of rights entitling
the holders thereof to subscribe for or purchase shares of Common Stock or any
class or series of preferred stock, which rights (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable and (iii)
are also issued in respect of future issuances of Common Stock, in each case
until the occurrence of a specified event or events.
Security or Securities; outstanding:
The term "Security" or "Securities" shall mean any security or
securities of the Company, as the case may be, without regard to series,
authenticated and delivered under this Indenture.
The term "outstanding," when used with reference to Securities, shall,
subject to the provisions of Section 8.04, mean as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent), provided that such Securities shall have reached their Stated
Maturity or, if such Securities
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are to be redeemed prior to the maturity thereof, notice of such redemption
shall have been given as in Article Three provided, or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered or which have been paid
pursuant to the terms of Section 2.07 unless proof satisfactory to the Trustee
is presented that any such Securities are held by persons in whose hands any of
such Securities is a valid, binding and legal obligation of the Company.
In determining whether the holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Security that shall be deemed to be outstanding for such
purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.01.
Securityholder; registered holder:
The terms "Securityholder," "holder of Securities," "registered
holder" or other similar term, shall mean any person who shall at the time be
the registered holder of any Security or Securities on the Register kept for
that purpose in accordance with the provisions of this Indenture.
Senior Indebtedness of the Company:
The term "Senior Indebtedness of the Company" shall mean (i) any
indebtedness of the Company for borrowed or purchased money, whether or not
evidenced by bonds, debentures, notes or other written instruments, (ii)
obligations under letters of credit, (iii) any indebtedness or other obligations
of the Company with respect to commodity contracts, interest rate and currency
swap agreements, cap, floor and collar agreements, currency spot and forward
contracts, and other similar agreements or arrangements designed to protect
against fluctuations in currency exchange or interest rates, and (iv) any
guarantees, endorsements (other than by endorsement of negotiable instruments
for collection in the ordinary course of business) or other similar contingent
obligations in respect of obligations of others of a type described in (i), (ii)
or (iii) above whether or not such obligation is classified as a liability on a
balance sheet prepared in accordance with generally accepted accounting
principles, in each case listed in (i), (ii), (iii) and (iv) above whether
outstanding on the date of execution of this Indenture or thereafter incurred,
other than obligations ranking on a parity with the Securities or ranking junior
to the Securities; provided, however, that "Senior Indebtedness of the Company"
does not include trade creditors. Senior Indebtedness of the Company shall also
include (i) all indebtedness of the Company issued under the Subordinated
Indenture dated December 10, 1992 between Wells Fargo & Company and Marine
Midland Bank (the "Marine Midland Indenture"), including, but not limited to,
the Company's (a) Floating Rate Subordinated Notes Due 1997, (b) Floating Rate
Subordinated Notes Due June 25, 1997, (c) Floating Rate Subordinated Notes Due
July 1997, (d) Floating Rate Subordinated Capital Notes Due 1997, (e) Floating
Rate Capital Notes Due 1998, (f) 8.75% Subordinated Notes Due May 1, 2002, (g)
8-3/8% Subordinated Notes Due May 15, 2002, (h) 6-7/8% Subordinated Notes Due
April 1, 2006, and (i) 7-1/8% Subordinated Notes Due August 15, 2006, (ii) all
indebtedness of the Company issued under the Indenture dated November 1, 1994
between First Interstate Bancorp and the First National Bank of Chicago (the
"First National Bank of Chicago Indenture"), including, but not limited to, the
Company's (a) 9.00% Subordinated Notes due November 15, 2004 and (b) 8.15%
Subordinated Notes due March 15, 2002, (iii) all indebtedness of the Company
issued under the Subordinated Securities Indenture dated February 1, 1985
between First Interstate Bancorp and Irving Trust Company, and under the Capital
Securities Indenture dated February 1, 1985 between First Interstate Bancorp and
Irving Trust Company (collectively, the "Irving Trust Company Indenture"),
including, but not limited to, the Company's (a) 12.75% Subordinated Notes due
May 1, 1997, (b) 9.9% Subordinated Notes due November 15, 2001 (c) 10.875%
Subordinated Notes due April 15, 2001, (d) 10.20% Subordinated Notes due
December 15, 1998, (e) 11.25% Subordinated Notes due March 27, 2001, (f) 11.25%
Subordinated Notes due March 28, 2001, (g) 9.375% Subordinated Notes due January
21, 2002, (h) 9.375% Subordinated Notes due January 21, 2002, (i) 9.375%
Subordinated Notes due January 23, 2002, and (j) 9.375% Subordinated Notes due
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January 23, 2002 and (iv) all other indebtedness of the Company, whether
outstanding on the date of execution of this Indenture or thereafter incurred,
ranking on a parity with or senior to indebtedness issued under the Marine
Midland Indenture, the First National Bank of Chicago Indenture, or the Irving
Trust Company Indenture, whether outstanding on the date of execution of this
Indenture or thereafter incurred, and any securities issued pursuant to this
Indenture shall be deemed to rank junior to any securities listed above.
Stated Maturity:
The term "Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and payable in
the case of such principal, as such date may be shortened or extended or
provided pursuant to the terms of such Security and this Indenture.
Subsidiary:
The term "Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
Tax Event:
The term "Tax Event" means the receipt by a Wells Fargo Trust of an
Opinion of Counsel (as defined in the relevant Trust Agreement) experienced in
such matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities of such Wells Fargo Trust, there is more than an insubstantial risk
that (i) the Wells Fargo Trust is, or will be within 90 days of the date of such
Opinion of Counsel, subject to United States federal income tax with respect to
income received or accrued on the corresponding series of Securities issued by
the Company to such Wells Fargo Trust, (ii) interest payable by the Company on
such corresponding series of Securities is not, or within 90 days of the date of
such Opinion of Counsel, will not be, deductible, in whole or in part, for
United States federal income tax purposes, or (iii) the Wells Fargo Trust is, or
will be within 90 days of the date of such Opinion of Counsel, subject to more
than a de minimis amount of other taxes, duties or other governmental charges.
Trust Agreement:
The term "Trust Agreement" means any Trust Agreement governing any
Wells Fargo Trust, whether now existing or created in the future, relating to
the Securities of any series in each case, and including, without limitation,
the Trust Agreements dated October 30, 1996 of Wells Fargo Capital I, Wells
Fargo Capital II and Wells Fargo Capital III, and the Trust Agreements dated
November 20, 1996, and November 21, 1996, of Wells Fargo Capital A and Wells
Fargo Capital B, respectively, each as amended by the form of Amended and
Restated Trust Agreement, as amended from time to time.
Trustee; Principal Office of the Trustee:
The term "Trustee" shall mean The First National Bank of Chicago and,
subject to the provisions of Article Seven, shall also include its successors.
The term "principal office" of the Trustee shall mean the principal corporate
trust office of the Trustee in the City of Chicago, State of Illinois, at which
the
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corporate trust business of the Trustee shall, at any particular time, be
administered. The present address of the office at which the corporate trust
business of the Trustee is administered is One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
Trust Indenture Act of 1939:
Except as herein otherwise expressly provided or unless the context
requires otherwise, the term "Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939, as amended by the Trust Indenture Reform Act of 1990, as
in force at the date as of which this Indenture was originally executed.
Wells Fargo Guarantee:
The term "Wells Fargo Guarantee" means the guarantee by the Company of
distributions on the Preferred Securities of a Wells Fargo Trust to the extent
provided in the Guarantee Agreement.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION OF
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. AMOUNT, SERIES AND DELIVERY OF SECURITIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The terms of each
series (which terms shall not be inconsistent with the provisions of this
Indenture) including:
(1) The designation of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities and
which shall include the word "subordinated" or a word of like meaning);
(2) Any limit upon the aggregate principal amount of the Securities of
the series which may be executed, authenticated and delivered under this
Indenture; provided, however, that nothing contained in this Section or
elsewhere in this Indenture or in the Securities or in such resolution or
in such certificate is intended to or shall limit execution by the Company
or authentication and delivery by the Trustee of Securities under the
circumstances contemplated by Sections 2.05, 2.06, 2.07, 3.02, 3.03 and
10.04;
(3) The date or dates (if any) on which the principal of the
Securities of the series is payable;
(4) The rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the dates on which such interest shall be payable and the record date for
the interest payable on any interest payment date;
(5) The place or places where Securities of the series may be
presented for payment and for the other purposes provided in Section 4.02;
(6) Any price or prices at which, any period or periods within which,
and any terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
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(7) The type or types (if any) of Capital Stock of the Company into
which, any period or periods within which, and any terms and conditions
upon which Securities of the series may be made payable, converted,
exchanged in whole or in part, at the option of the holder or of the
Company;
(8) If other than denominations of $1,000 and any whole multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) If other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
6.01;
(10) If other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public or
private debts, the coin or currency (which may be a composite currency) in
which payment of the principal of (and premium, if any) and interest, if
any, on the Securities of that series shall be payable;
(11) If the principal of (and premium, if any) or interest, if any, on
the Securities of that series are to be payable, at the election of the
Company or a holder thereof, in a coin or currency (including a composite
currency) other than that in which the Securities are stated to be payable,
the period or periods within which, and the terms and conditions upon
which, such election may be made;
(12) If the amounts of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series may be determined with
reference to an index based on a coin or currency (including a composite
currency) other than that in which the Securities are stated to be payable,
the manner in which such amounts shall be determined;
(13) If the Securities of the series are payable at maturity or upon
earlier redemption in Capital Stock, the terms and conditions upon which
such payment shall be made;
(14) The person or persons who shall be registrar for the Securities
of the series, and the place or places where the Register of the Securities
of the series shall be kept;
(15) Any Events of Default with respect to the Securities of a
particular series, if not set forth herein;
(16) Whether any Securities of the series are to be issuable in global
form with or without coupons, and, if so, the Depositary for such global
Securities and whether beneficial owners of interests in any such global
Security may exchange such interests for definitive Securities of such
series and of like tenor of any authorized form and denomination and the
circumstances under which, and the place or places where, any such
exchanges may occur, if other than in the manner provided in Section 2.05;
(17) The form of Trust Agreement and Guarantee Agreement, if
applicable;
(18) If applicable, the relative degree to which Securities of the
series shall be senior to or be subordinated to other Series of such
Securities or other indebtedness of the Company in right of payment,
whether such other series of Securities or other indebtedness are
outstanding or not; and
(19) Any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture);
or in any case, the method for determining such terms, the persons authorized to
determine such terms and the limits, if any, within which any such determination
of such terms is to be made shall either be established in or
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pursuant to a Resolution of the Company and set forth in an Officers'
Certificate, or set forth in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series.
The Securities of all series shall be subordinate to Senior
Indebtedness of the Company as provided in Article Fourteen. The applicable
Officers' Certificate or supplemental indenture may provide that Securities of
any particular series may be issued at various times, with different dates on
which the principal or any installment of principal is payable, with different
rates of interest, if any, or different methods by which interest may be
determined, with different dates from which such interest shall accrue, with
different dates on which such interest may be payable or with any different
terms other than Events of Default but all such Securities of a particular
series shall for all purposes under this Indenture including, but not limited
to, voting and Events of Default, be treated as Securities of a single series.
If any of the terms of the series are established by action taken
pursuant to a Resolution of the Company, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or supplemental indenture setting forth the terms of the
series.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication by it, and the Trustee shall thereupon
authenticate and deliver said Securities to or upon the written order of the
Company, signed by its Chairman of the Board, or its President, or any Vice
Chairman or any Vice President of the Company (whether or not designated by a
number or word or words added before or after the title Vice President), and by
its Treasurer or an Assistant Treasurer or its Secretary or an Assistant
Secretary, without any further corporate action by the Company. If the form or
terms of the Securities of the series have been established in or pursuant to
one or more Resolutions of the Company and set forth in an Officers' Certificate
or set forth in one or more indentures supplemental hereto, as permitted by this
Section and Section 2.02, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(a) an Opinion of Counsel stating:
(i) If the form or terms of such Securities have been established by
or pursuant to Resolutions of the Company as permitted by Section 2.02 and set
forth in an Officers' Certificate, that such form and terms have been
established in conformity with the provisions of this Indenture;
(ii) If the form or terms of such Securities have been established
by or pursuant to a Resolution of the Company and set forth in one or more
indentures supplemental hereto as permitted by Section 2.02, that such form and
terms have been established in conformity with the provisions of this Indenture;
(iii) That the issuance and sale of the Securities has been duly
registered under the Securities Act of 1933, as amended (the "Act"), and that a
registration statement with respect thereto under the Act has become effective
under the Act or that such issuance and sale is exempt from the registration
requirements of the Act; and any other action by or before any governmental body
or authority (except that the offer and sale of the Securities in certain
jurisdictions may be subject to the Blue Sky or securities laws of such
jurisdictions) required in connection with the issuance of the Securities has
been duly taken, specifying the nature thereof, or that no such action is
required;
(iv) That the issuance and delivery of the Securities does not
conflict with or result in a breach of the terms, conditions or provisions of,
or constitute a default under, the charter or Bylaws of the Company, any order
or decree of any court or public authority having jurisdiction, or any mortgage,
indenture, contract, agreement or undertaking known to counsel to which the
Company is a party or by which it is bound;
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(v) That such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, entitled
to the benefits of the Indenture, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general equity principles;
(vi) If the form or terms of such Securities provide for the
conversion of such Securities into shares of Capital Stock of the Company, or
the payment in Capital Stock upon maturity or earlier redemption of the
Securities, that the Company has reserved a number of shares of Capital Stock
sufficient for issuance upon such conversion or payment, and such shares of
Capital Stock are fully paid and nonassessable;
(vii) That the Company has the corporate power to issue such
Securities, and has duly taken all necessary corporate action with respect to
such issuance;
(viii) That all laws and requirements in respect of the execution
and delivery by the Company of such Securities and the related supplemental
indenture, if any, have been complied with and that authentication and delivery
of such Securities and the execution and delivery of the related supplemental
indenture, if any, by the Trustee will not violate the terms of the Indenture;
and
(ix) Such other matters as the Trustee may reasonably request; and
(b) An Officers' Certificate setting forth the form and terms of the
Securities of such series pursuant to Section 2.01 and Section 2.02 hereof (but
only if the form and terms of the Securities of such series are not set forth in
one or more supplemental indentures hereto) and stating that all conditions
precedent provided for in this Indenture relating to the issuance of such
Securities have been complied with, that no Event of Default with respect to any
series of Securities has occurred and is continuing and that the issuance of
such Securities is not and will not result in (i) an Event of Default or an
event or condition which, upon the giving of notice (or the acquisition of
knowledge) or the lapse of time or both, would become an Event of Default or
(ii) a default under the provisions of any other instrument or agreement by
which the Company is bound.
The Trustee shall not be required to authenticate such Securities if
the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver either an Opinion of Counsel or an
Officers' Certificate at the time of issuance of each Security, provided that
such Opinion of Counsel and Officers' Certificate, with appropriate
modifications, are instead delivered at or prior to the time of issuance of the
first Security of such series.
Each Security shall be dated the date of its authentication.
Section 2.02. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE. The
Securities of each series shall be substantially of the tenor and purport as
shall be authorized in or pursuant to a Resolution of the Company and set forth
in an Officers' Certificate or set forth in an indenture or indentures
supplemental hereto in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
or designation and such legends or endorsements thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage. If the form of Securities
of any series is authorized by action taken pursuant to a Resolution of the
Company, a copy of an appropriate record of such action shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate contemplated by
Section 2.01 setting forth the terms of the series.
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The Securities may be printed, lithographed or fully or partly
engraved.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities, of the series designated herein,
referred to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By
-------------------------------------------
Authorized Officer"
If Securities of a series are issuable in global form, as specified
pursuant to Section 2.01, then, notwithstanding clause (8) of Section 2.01 and
the provisions of Section 2.03, such Security shall represent such of the
outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified in such Security or by the
Company. Subject to the provisions of Section 2.04 and, if applicable, Section
2.06, the Trustee shall deliver and redeliver any Security in global form in the
manner and upon written instructions given by the person or persons specified in
such Security or by the Company. Any instructions by the Company with respect
to endorsement or delivery or redelivery of a Security in global form after the
original issuance of the Securities of such series shall be in writing but need
not comply with Section 15.04 and need not be accompanied by an Opinion of
Counsel.
Unless otherwise specified pursuant to Section 2.01, payment of
principal of and any premium and any interest on any Security in global form
shall be made to the person or persons specified therein.
The owners of beneficial interests in any global Security shall have
no rights under this Indenture with respect to any global Security held on their
behalf by a Depositary, and such Depositary may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the sole holder and
owner of such global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by a Depositary, or impair, as between a
Depositary and its participants in any global Security, the operation of
customary practices governing the exercise of the rights of a holder of a
Security of any series, including, without limitation, the granting of proxies
or other authorization of participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action that a holder
is entitled to give or take under this Indenture.
Neither the Company, the Trustee nor any Authenticating Agent will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Each Depositary designated pursuant to Section 2.01 for a global
Security must, at the time of its designation and at all times while it serves
as Depositary, be a clearing agency registered under the Securities Exchange Act
of 1934, as amended, and any other applicable statute or regulation.
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Section 2.03. DENOMINATIONS OF AND PAYMENT OF INTEREST ON SECURITIES.
The Securities of each series shall be issuable as fully registered Securities
without coupons in such denominations as shall be specified as contemplated by
Section 2.01. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
If the Securities of any series shall bear interest, each Security of
such series shall bear interest from the applicable date at the rate or rates
per annum, and such interest shall be payable on the dates, specified on, or
determined in the manner provided for in, the Security. The person in whose
name any Security is registered at the close of business on any record date (as
hereinbelow defined) for the Security with respect to any interest payment date
for such Security shall be entitled to receive the interest payable thereon on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of transfer, exchange or conversion thereof subsequent to
such record date and prior to such interest payment date, unless such Security
shall have been called for redemption on a date fixed for redemption subsequent
to such record date and prior to such interest payment date, or unless the
Company shall default in the payment of interest due on such interest payment
date on such Security, in which case such defaulted interest shall be paid to
the person in whose name such Security (or any Security or Securities issued
upon registration of or exchange thereof) is registered at the close of business
on the record date for the payment of such defaulted interest, or except as
otherwise specified as contemplated by Section 2.01. The term "record date" as
used in this Section with respect to any regular interest payment date for any
Security shall mean such day or days as shall be specified as contemplated by
Section 2.01; provided, however, that in the absence of any such provisions with
respect to any Security, such term shall mean: (1) the last day of the calendar
month next preceding such interest payment date if such interest payment date is
the fifteenth day of a calendar month; or (2) the fifteenth day of the calendar
month next preceding such interest payment date if such interest payment date is
the first day of a calendar month; provided, further, that (except as otherwise
specified as contemplated by Section 2.01) if the day which would be the record
date as provided herein is not a Business Day, then it shall mean the Business
Day next preceding such day. Such term, as used in this Section, with respect
to the payment of any defaulted interest on any Security shall mean (except as
otherwise specified as contemplated by Section 2.01) the fifth day next
preceding the date fixed by the Company for the payment of defaulted interest,
established by notice given by first class mail by or on behalf of the Company
to the holder of such Security not less than 10 days preceding such record date,
or, if such fifth day is not a Business Day, the Business Day next preceding
such fifth day.
Section 2.04. EXECUTION OF SECURITIES. The Securities shall be signed
on behalf of the Company, manually or in facsimile, by its Chairman of the Board
or any Vice Chairman of the Board, or its President or any Vice Chairman or any
Vice President of the Company (whether or not designated by a number or word or
words added before or after the title Vice President) and by its Treasurer or an
Assistant Treasurer or its Secretary or an Assistant Secretary under its
corporate seal, which may be affixed thereto or printed, engraved or otherwise
reproduced thereon, by facsimile or otherwise. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form recited
herein, executed by or on behalf of the Trustee manually by an authorized
officer, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. Such certificate by the Trustee upon any Security
executed by the Company shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture. Typographical or other
errors or defects in the seal or facsimile signature on any Security or in the
text thereof shall not affect the validity or enforceability of such Security if
it has been duly authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities, manually or in facsimile, shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company, such Securities nevertheless may be authenticated
and delivered or disposed of as though the person who signed such Securities had
not ceased to be such officer of the Company; and any Security may be signed on
behalf of the Company, manually or in facsimile, by such persons as, at the
actual date of the execution of such Security, shall be the proper officers of
the Company, although at the date of the execution of this Indenture any such
person was not such officer.
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Section 2.05. REGISTRATION, TRANSFER AND EXCHANGE OF SECURITIES.
Securities of any series (other than a global Security, except as set forth
below) may be exchanged for a like aggregate principal amount of Securities of
the same series of the same tenor and terms of other authorized denominations.
Securities to be exchanged shall be surrendered at the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.02 and
the Company shall execute and the Trustee shall authenticate and deliver, or
cause to be authenticated and delivered, in exchange therefor the Security or
Securities which the Securityholder making the exchange shall be entitled to
receive.
The Company shall keep, at one or more of the offices or agencies to
be maintained by the Company in accordance with the provisions of Section 4.02
with respect to the Securities of each series, a Register (herein defined as the
"Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register the Securities of such series and the
transfer of Securities of such series as in this Article provided. Such
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the Register shall be open for inspection by the Trustee and any registrar of
the Securities of such series other than the Trustee. Upon due presentment for
registration of transfer of any Security of any series at the offices or
agencies of the Company to be maintained by the Company in accordance with
Section 4.02 with respect to the Securities of such series, the Company shall
execute and register and the Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Security or Securities of the same series
of like tenor and terms for a like aggregate principal amount of authorized
denominations.
Every Security issued upon registration of transfer or exchange of
Securities pursuant to this Section shall be the valid obligation of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Security or Securities surrendered upon registration of such
transfer or exchange.
All Securities of any series presented or surrendered for exchange,
registration of transfer, redemption, conversion or payment shall, if so
required by the Company or any registrar of the Securities of such series, be
accompanied by a written instrument or instruments of transfer, in form
satisfactory to the Company and such registrar, duly executed by the registered
holder or by his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or register the transfer
of (a) any Securities of any series during a period beginning at the opening of
business fifteen days before the day of the mailing of a notice of redemption of
outstanding Securities of such series and ending at the close of business on the
day of such mailing, or (b) any Securities or portions thereof called or
selected for redemption, except, in the case of Securities called for redemption
in part, the portion thereof not so called for redemption.
Notwithstanding any other provision of this Section, unless and until
it is exchanged in whole or in part for Securities in definitive form, a global
Security representing all or a portion of the Securities of a series may not be
transferred, except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
Notwithstanding the foregoing, except as otherwise specified pursuant
to Section 2.01, any global Security shall be exchangeable pursuant to this
Section only as provided in this paragraph. If at any time the Depositary for
the Securities of a series notifies the Company that it is unwilling or unable
to continue as Depositary for the Securities of such series, or if at any time
the Depositary for the Securities of such series shall no longer be eligible to
so act, the Company shall appoint a successor Depositary with respect to the
Securities of such series. If (a) a successor Depositary for the Securities of
such series is not appointed by the Company
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within 90 days after the Company receives such notice or becomes aware of such
ineligibility (thereby automatically making the Company's election pursuant to
Section 2.01 no longer effective with respect to the Securities of such series),
(b) the beneficial owners of interests in a global Security are entitled to
exchange such interests for Securities of such series and of the same tenor and
terms, as specified pursuant to Section 2.01, or (c) the Company in its sole
discretion determines that the Securities of any series issued in the form of
one or more global Securities shall no longer be represented by such global
Security or Securities, then without unnecessary delay, but, if appropriate, in
any event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests are or may be so exchanged, such global Security shall be surrendered
by the Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities upon
payment by the beneficial owners of such interest, at the option of the Company,
of a service charge for such exchange and of a proportionate share of the cost
of printing such definitive Securities, and the Trustee shall authenticate and
deliver, (a) to each person specified by the Depositary in exchange for each
portion of such global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of the
same tenor and terms as the portion of such global Security to be exchanged, and
(b) to such Depositary a global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered global
Security and the aggregate principal amount of definitive Securities delivered
to holders thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of 15 Business Days before any selection of
Securities of that series to be redeemed and ending on the relevant redemption
date. If a Security is issued in exchange for any portion of a global Security
after the close of business at the office or agency where such exchange occurs
on (i) any record date and before the opening of business at such office or
agency on the relevant interest payment date, or (ii) any record date for the
payment of defaulted interest and before the opening of business at such office
or agency on the related proposed date for payment of defaulted interest, then
interest or default interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment of defaulted interest, as the
case may be, in respect of such Security, but will be payable on such interest
payment date or proposed date for payment of defaulted interest, as the case may
be, only to the person to whom interest in respect of such portion of such
global Security is payable in accordance with the provisions of this Indenture
and such global Security.
Section 2.06. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such series (printed or
lithographed) of any denomination and substantially in the form of the
definitive Securities of such series, but with or without a recital of specific
redemption prices or conversion provisions and with such omissions, insertions
and variations as may be appropriate for temporary Securities, all as may be
determined by the Company. Temporary Securities may contain such reference to
any provisions of this Indenture as may be appropriate. Every such temporary
Security shall be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with the same effect, as the definitive
Securities. Without unreasonable delay the Company will execute and deliver to
the Trustee definitive Securities of such series and thereupon any or all
temporary Securities of such series may be surrendered in exchange therefor, at
the offices or agencies to be maintained by the Company as provided in Section
4.02 with respect to the Securities of such series, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such series. Until so
exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series authenticated and delivered hereunder.
Section 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES. In
case any temporary or definitive Security shall become mutilated or be
destroyed, lost or stolen, the Company, in the case of any mutilated Security
shall, and in the case of any destroyed, lost or stolen Security in its
discretion may, execute, and upon its request the Trustee shall authenticate and
deliver, or cause to be authenticated and delivered, a new Security of the same
series of like tenor and terms in exchange and substitution for the mutilated
Security, or in lieu of and in substitution for the Security so destroyed, lost
or stolen. In case any such Security shall have matured or shall be about to
mature, instead of issuing a substituted Security, the Company may pay or
authorize
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payment of the same (without surrender thereof, except in the case of a
mutilated Security). In every case the applicant for a substituted Security or
for such payment shall furnish to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof. The
Trustee may authenticate any such substituted Security and deliver the same, or
the Trustee or any paying agent of the Company may make any such payment, upon
the written request or authorization of any officer of the Company. Upon the
issue of any substituted Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other reasonable expenses connected therewith
(including the fees and expenses of the Trustee).
To the extent permitted by mandatory provisions of law, every
substituted Security issued pursuant to the provisions of this Section in
substitution for any destroyed, lost or stolen Security shall constitute an
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be found at any time, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all
other Securities of the same series duly issued hereunder.
To the full extent legally enforceable, all Securities shall be held
and owned upon the express condition that the foregoing provisions are exclusive
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
Section 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED SECURITIES.
All Securities surrendered for the purpose of payment, redemption, exchange,
substitution or registration of transfer, shall, if surrendered to the Company
or any agent of the Company or of the Trustee, be delivered to the Trustee, and
the same, together with Securities surrendered to the Trustee for cancellation,
shall be cancelled by it, and no Securities shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall destroy cancelled Securities and deliver a certificate of
destruction thereof to the Company unless by an Officers' Certificate the
Company shall direct that cancelled securities be returned to it. If the
Company shall purchase or otherwise acquire any of the Securities, however, such
purchase or acquisition shall not operate as a payment, redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the Company, at its option, shall deliver or surrender the same to the Trustee
for cancellation.
Section 2.09. AUTHENTICATING AGENTS. The Trustee may from time to
time appoint one or more Authenticating Agents with respect to one or more
series of Securities, which shall be authorized to act on behalf of the Trustee
and subject to its direction in authenticating and delivering Securities of such
series pursuant hereto as fully to all intents and purposes as though any such
Authenticating Agent had been expressly authorized to execute and deliver
Securities of such series, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as though authenticated by the Trustee. Wherever reference is made in
this Indenture to the authentication or delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication or delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent shall at all times be a
corporation (including a banking association) organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia, having a combined capital and surplus of at least five
million dollars, authorized under such laws to exercise corporate trust powers
and subject to supervision or examination by federal, state, territorial, or
District of Columbia authorities. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect herein specified in this Section.
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The Trustee hereby initially appoints The First National Bank of
Chicago, through its trust offices at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126 and at 14 Wall Street, 8th floor, New York, New
York 10005, as Authenticating Agent.
Any corporation succeeding to the corporate agency business of an
Authenticating Agent shall continue to be an Authenticating Agent, if such
successor corporation is otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent or such successor corporation.
Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may, or at the request of the Company
promptly shall, appoint a successor Authenticating Agent. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth, including among other
things the duties to authenticate and deliver Securities of any series for which
it has been appointed an Authenticating Agent when presented to it in connection
with exchanges, registrations of transfer or any redemptions or conversions
thereof; it will furnish from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section and will notify the Trustee promptly if it shall cease
to be so qualified; and it will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and will defend any claim asserted
against the Trustee by reason of any acts or failures to act of the
Authenticating Agent but it shall have no liability for any action taken by it
at the specific written direction of the Trustee.
Section 2.10. DEFERRALS OF INTEREST PAYMENT DATES. If specified as
contemplated by Section 2.01 or Section 2.02 with respect to the Securities of a
particular series, so long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time during the term of
such series, from time to time to defer the payment of interest on such
Securities for such period or periods as may be specified as contemplated by
Section 2.01 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
interest payment date. No Extension Period shall end on a date other than an
interest payment date. At the end of any such Extension Period the Company
shall pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; provided, further, that during any such Extension
Period, the Company shall not, and shall cause any Subsidiary not to, (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire
or make a liquidation payment with respect to, any of the Company's capital
stock (which includes common and preferred stock), or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities of the Company that rank pari passu with or junior in
interest to the Securities of such series or make any guarantee payments with
respect to any Wells Fargo Guarantee or other guarantee by the Company of the
debt securities of any Subsidiary of the Company that by their terms rank pari
passu or junior in interest to the Securities of such series (other than (a)
dividends or distributions in Common Stock; (b) any declaration of a dividend in
connection with the implementation of a Rights Plan, the issuance of any Common
Stock of any class
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or series of preferred stock of the Company under any Rights Plan or the
redemption or repurchase of any rights distributed pursuant to a Rights Plan;
(c) payments under any Wells Fargo Guarantee; and (d) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no Extension Period shall exceed the
period or periods specified in such Securities or extend beyond the Stated
Maturity of the principal of such Securities. Upon termination of any Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due on any interest payment date, the Company may elect
to begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end thereof.
The Company shall give the holders of the Securities of such series and the
Trustee notice of its election to begin any such Extension Period at least one
Business Day prior to the next succeeding interest payment date on which
interest on Securities of such series would be payable but for such deferral or,
with respect to the Securities of a series issued to a Wells Fargo Trust, so
long as such Securities are held by such Wells Fargo Trust, prior to the earlier
of (i) the next succeeding date on which Distributions on the Preferred
Securities of such Wells Fargo Trust would be payable but for such deferral, or
(ii) the date the Administrative Trustees of such Wells Fargo Trust are required
to give notice to any securities exchange or other applicable self-regulatory
organization or to holders of such Preferred Securities of the record date or
the date such Distributions are payable, but in any event not less than one
Business Day prior to such record date.
The Trustee shall promptly give notice of the Company's election to
begin any such Extension Period to the holders of the outstanding Securities of
such series.
Section 2.11. RIGHT OF SET-OFF. With respect to the Securities of a
series issued to a Wells Fargo Trust, notwithstanding anything to the contrary
in the Indenture, the Company shall have the right to set-off any payment it is
otherwise required to make thereunder in respect of any such Security to the
extent the Company has theretofore made, or is concurrently on the date of such
payment making, a payment under the Wells Fargo Guarantee relating to such
Security or under Section 6.05 of the Indenture.
Section 2.12. SHORTENING OR EXTENSION OF STATED MATURITY. If
specified as contemplated by Section 2.01 or Section 2.02 with respect to the
Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such Series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the first interest payment date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to this clause (ii), at the time such
election is made and at the time of extension (A) the Company is not in
bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to a Wells Fargo Trust, such Wells
Fargo Trust is not in arrears on payments of Distributions on the Preferred
Securities issued by such Wells Fargo Trust and no deferred Distributions are
accumulated, and (D) such Securities are rated not less than BBB- by Standard &
Poor's Ratings Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized statistical rating organization.
In the event the Company elects to shorten or extend the Stated Maturity of the
Securities, it shall give notice to the Trustee, and the Trustee shall give
notice of such shortening or extension to the holders no less than 30 and no
more than 60 days prior to the effectiveness thereof.
Section 2.13. AGREED TAX TREATMENT. Each Security issued hereunder
shall provide that the Company and, by its acceptance of a security or a
beneficial interest therein, the holder of, and any Person that acquires a
beneficial interest in, such Security agree that for United States federal,
state and local tax purposes it is intended that such Security constitute
indebtedness.
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ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable prior to Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
2.01 for Securities of any series) in accordance with this Article.
Section 3.02. MAILING OF NOTICE OF REDEMPTION. In case the Company
shall desire to exercise any right to redeem all or, as the case may be, any
part of the Securities of any series pursuant to this Indenture, it shall give
notice of such redemption to holders of the Securities to be redeemed as
hereinafter in this Section provided.
The Company covenants that it will pay to the Trustee or one or more
paying agents, on or before the Business Day next preceding the date fixed for
each redemption of Securities, a sum in cash sufficient to redeem on the
redemption date all the Securities so called for redemption at the applicable
redemption price, together with any accrued interest on the Securities to be
redeemed to the date fixed for redemption.
Notice of redemption shall be given to the holders of Securities to be
redeemed as a whole or in part by mailing by first class mail, postage prepaid,
a notice of such redemption not less than 30 nor more than 60 days prior to the
date fixed for redemption to their last addresses as they shall appear upon the
Register, but failure to give such notice by mailing in the manner herein
provided to the holder of any Security designated for redemption as a whole or
in part, or any defect therein, shall not affect the validity of the proceedings
for the redemption of any other Security.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives the notice.
Each such notice of redemption shall specify the date fixed for
redemption and the redemption price at which Securities are to be redeemed, and
shall state that payment of the redemption price of the Securities or portions
thereof to be redeemed will be made at any of the offices or agencies to be
maintained by the Company in accordance with the provisions of Section 4.02 with
respect to the Securities to be redeemed, upon presentation and surrender of
such Securities or portions thereof, and that, if applicable, interest accrued
to the date fixed for redemption will be paid as specified in said notice and on
and after said date interest thereon will cease to accrue and shall also
specify, if applicable, the conversion price and the date on which the right to
convert the Securities will expire and that holders must comply with Article
Fifteen hereof in order to convert their Securities. If less than all the
Securities of any series are to be redeemed, the notice of redemption to each
holder shall specify such holder's Securities of such series to be redeemed as a
whole or in part. In case any Security is to be redeemed in part only, the
notice which relates to such Security shall state the portion of the principal
amount thereof to be redeemed (which shall be equal to the minimum authorized
denomination for Securities of such series or any whole multiple thereof), and
shall state that on and after the redemption date, upon surrender of such
Security, the holder will receive the redemption price in respect to the
principal amount thereof called for redemption and, without charge, a new
Security or Securities of the same series of authorized denominations for the
principal amount thereof remaining unredeemed.
If less than all the Securities of any series are to be redeemed, the
Company shall give the Trustee, at least 60 days in advance of the date fixed
for redemption, notice of the aggregate principal amount of Securities of such
series to be redeemed, and thereupon the Trustee shall select, pro rata, by lot,
or in any manner it shall deem fair, the Securities of such series to be
redeemed as a whole or in part and shall thereafter promptly notify the Company
in writing of the particular Securities of such series or portions thereof to be
redeemed. If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal or any installment of principal is
payable or different rates of interest, if any, or different methods by which
interest may be determined or have any other different tenor or terms, then the
Company may, by
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written notice to the Trustee, direct that Securities of such series to be
redeemed shall be selected from among groups of such Securities having specified
tenor or terms and the Trustee shall thereafter select the particular Securities
to be redeemed in the manner set forth in the preceding sentence from among the
group of such Securities so specified.
Section 3.03. WHEN SECURITIES CALLED FOR REDEMPTION BECOME DUE AND
PAYABLE. If the giving of notice of redemption shall have been completed as
above provided, the Securities or portions of Securities specified in such
notice shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price, together, if
applicable, with any interest accrued (including any Additional Interest) to the
date fixed for redemption, and on and after such date fixed for redemption
(unless the Company shall default in the payment of such Securities at the
applicable redemption price, together with any interest accrued to the date
fixed for redemption) any interest on the Securities or portions of Securities
so called for redemption shall cease to accrue, and, except as provided in
Sections 7.05 and 12.04, such Securities shall cease from and after the date
fixed for redemption to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and any
unpaid interest accrued to the date fixed for redemption. On presentation and
surrender of such Securities at said place of payment in said notice specified,
the said Securities or portions thereof shall be paid and redeemed by the
Company at the applicable redemption price, together with any interest accrued
to the date fixed for redemption; provided, however, that, except as otherwise
specified as contemplated by Section 2.01, any regular payment of interest
becoming due on the date fixed for redemption shall be payable to the holders of
the Securities registered as such on the relevant record date as provided in
Article Two hereof. Upon presentation of any Security which is redeemed in part
only, the Company shall execute and the Trustee shall authenticate and deliver
at the expense of the Company a new Security of the same series of like tenor
and terms of authorized denomination in principal amount equal to the unredeemed
portion of the Security so presented; except that if a global Security is so
surrendered, the Company shall execute, and the Trustee shall authenticate and
deliver to the Depositary for such global Security, without service charge, a
global Security in a denomination equal to and in exchange for the unredeemed
portion of the principal of the global Security so surrendered.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the date fixed for redemption at the rate borne by or prescribed therefor
in the Security, or, in the case of a Security which does not bear interest, at
the rate of interest set forth therefor in the Security to the extent permitted
by law.
Section 3.04. RIGHT OF REDEMPTION OF SECURITIES INITIALLY ISSUED TO A
WELLS FARGO TRUST. In the case of the Securities of a series initially issued
to a Wells Fargo Trust, except as otherwise specified as contemplated by Section
2.01, the Company, at its option, may redeem such Securities (i) on or after the
date five years after the Original Issue Date of such Securities, in whole at
any time or in part from time to time, or (ii) upon the occurrence and during
the continuation of a Tax Event, Capital Treatment Event or an Investment
Company event, at any time within 90 days following the occurrence of such Tax
Event in respect of such Wells Fargo Trust, in whole (but not in part), in each
case at a redemption price equal to 100% of the principal amount thereof.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
The Company covenants as follows:
Section 4.01. PAYMENT OF PRINCIPAL OF AND INTEREST ON SECURITIES.
The Company will duly and punctually pay or cause to be paid the principal of
and interest, if any, on each of the Securities at the time and places and in
the manner provided herein and in the Securities. Except as otherwise specified
as contemplated by Section 2.01, if the Securities of any series bear interest,
each installment of interest on the
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Securities of such series may at the option of the Company be paid (i) by
mailing a check or checks for such interest payable to the person entitled
thereto pursuant to Section 2.03 to the address of such person as it appears on
the Register of the Securities of such series or (ii) by transfer to an account
maintained by the Person entitled thereto as specified in the Register of
Securities, provided that proper transfer instructions have been received by the
record date.
Section 4.02. MAINTENANCE OF OFFICES OR AGENCIES FOR REGISTRATION OF
TRANSFER, EXCHANGE AND PAYMENT OF SECURITIES. So long as any of the Securities
shall remain outstanding, the Company will maintain an office or agency in the
City of Chicago, State of Illinois, or in the City and County of San Francisco,
State of California, where the Securities may be presented for registration,
conversion, exchange and registration of transfer as in this Indenture provided,
and where notices and demands to or upon the Company in respect of the
Securities or of this Indenture may be served, and where the Securities may be
presented for payment. In case the Company shall designate and maintain some
office or agency other than the previously designated office or agency, it shall
give the Trustee prompt written notice thereof. In case the Company shall fail
to maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof to the Trustee, presentations
and demands may be made and notices may be served at the principal office of the
Trustee.
In addition to such office or agency, the Company may from time to
time constitute and appoint one or more other offices or agencies for such
purposes with respect to Securities of any series, and one or more paying agents
for the payment of Securities of any series, in such cities or in one or more
other cities, and may from time to time rescind such appointments, as the
Company may deem desirable or expedient, and as to which the Company has
notified the Trustee; provided, however, that no such appointment or rescission
shall in any manner relieve the Company of its obligation to maintain such
office or agency in the said City and County of San Francisco, where Securities
of such series may be presented for payment.
Section 4.03. APPOINTMENT TO FILL A VACANCY IN THE OFFICE OF TRUSTEE.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee with respect to each series of
Securities hereunder.
Section 4.04. DUTIES OF PAYING AGENT. (a) If the Company shall
appoint a Paying Agent other than the Trustee with respect to Securities of any
series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section and Section 12.03,
(1) That it will hold all sums held by it as such agent for the
payment of the principal of or interest, if any, on the Securities of such
series (whether such sums have been paid to it by the Company or by any
other obligor on the Securities of such series) in trust for the benefit of
the holders of the Securities entitled to such principal or interest and
will notify the Trustee of the receipt of sums to be so held,
(2) That it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series
when the same shall be due and payable, and
(3) That it will at any time during the continuance of any Event of
Default, upon the written request of the Trustee, deliver to the Trustee
all sums so held in trust by it.
(b) Whenever the Company shall have one or more Paying Agents with
respect to the Securities of any series, it will, prior to each due date of the
principal of or any interest on a Security of such series, deposit with a Paying
Agent of such series a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the holders of
Securities entitled to such principal or interest,
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and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
(c) If the Company shall act as its own Paying Agent with respect to
the Securities of any series, it will, on or before each due date of the
principal of or any interest on a Security of such series, set aside, segregate
and hold in trust for the benefit of the holder of such Security, a sum
sufficient to pay such principal or interest so becoming due and will notify the
Trustee of such action, or any failure by it or any other obligor on the
Securities of such series to take such action and will at any time during the
continuance of any Event of Default, upon the written request of the Trustee,
deliver to the Trustee all sums so held in trust by it.
(d) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to one or more or all series of
Securities hereunder, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust for such series by it, or any Paying Agent
hereunder, as required by this Section, such sums are to be held by the Trustee
upon the trust herein contained.
(e) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 12.03 and 12.04.
Section 4.05. FURTHER ASSURANCES. From time to time whenever
reasonably demanded by the Trustee, the Company will make, execute and deliver
or cause to be made, executed and delivered any and all such further and other
instruments and assurances and take all such further action as may be reasonably
necessary or proper to carry out the intention of or to facilitate the
performance of the terms of this Indenture or to secure the rights and remedies
hereunder of the holders of the Securities of any series.
Section 4.06. OFFICERS' CERTIFICATE AS TO DEFAULTS; NOTICES OF
CERTAIN DEFAULTS. The Company will, so long as any of the Securities are
outstanding, deliver to the Trustee on or before September 15 of each year,
beginning with the year 1997, a certificate signed by the Company's principal
executive officer, principal financial officer or principal accounting officer
stating that a review has been made under his or her supervision of the
activities of the Company during such year and of the performance under this
Indenture and, to the best of his or her knowledge, the Company has complied
with all conditions and covenants under this Indenture throughout such year, or
if there has been a default in the fulfillment of any such obligation,
specifying each such default known and the nature and status thereof. For
purposes of this Section, such compliance shall be determined without regard to
any period of grace or requirement of notice provided under this Indenture.
Section 4.07. WAIVER OF COVENANTS. The Company may omit in any
particular instance to comply with any covenant or condition specifically
contained in this Indenture for the benefit of one or more series of Securities,
if before the time for such compliance the holders of a majority in principal
amount of the Securities of all series affected (all series voting as one class)
at the time outstanding (determined as provided in Section 8.04) shall waive
such compliance in such instance, but no such waiver shall extend to or affect
such covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain
in full force and effect.
Section 4.08. ADDITIONAL SUMS. In the case of the Securities of a
series issued to a Wells Fargo Trust, so long as no Event of Default has
occurred and is continuing and except as otherwise specified as contemplated by
Section 2.01 or Section 2.02, in the event that (i) a Wells Fargo Trust is the
holder of all of the Outstanding Securities of such series, (ii) a Tax Event in
respect of such Wells Fargo Trust shall have occurred and be continuing and
(iii) the Company shall not have (a) redeemed the Securities of such series or
(b) terminated such Wells Fargo Trust pursuant to the termination provisions of
the related Trust Agreement, the Company shall pay to such Wells Fargo Trust
(and its permitted successors or assigns under the related Trust Agreement) for
so long as such Wells Fargo Trust (or its permitted successor or assignee) is
the registered holder of any Securities of such series, such additional amounts
as may be necessary in order that the amount
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of Distributions (including any Additional Amounts (as defined in the Trust
Agreement)), then due and payable by such Wells Fargo Trust on the related
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
additional taxes (the "Additional Sums"). Whenever in this Indenture or the
Securities there is a reference in any context to the payment of principal of or
interest on the Securities, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made, provided, however, that the deferral of the payment
of interest pursuant to Section 2.10 or the Securities shall not defer the
payment of any Additional Sums that may be due and payable.
Section 4.09. ADDITIONAL COVENANTS. The Company covenants and agrees
with each holder of Securities of a series issued to a Wells Fargo Trust that it
will not, and it will not permit any Subsidiary of the Company to, (a) declare
or pay any dividends or distributions on, or redeem purchase, acquire or make a
liquidation payment with respect to, any shares of the Company's capital stock,
or (b) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company that rank pari passu
with or junior to the Securities of such series or make any guarantee payments
with respect to any guarantee by the Company of debt securities of any
subsidiary of the Company if such guarantee ranks pari passu with or junior in
interest to the Securities (other than (a) dividends or distributions in Common
Stock of the Company, (b) any declaration of a dividend in connection with the
implementation of a Stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under any Wells Fargo Guarantee, and (d)
purchases of Common Stock related to the issuance of Common Stock under any of
the Company's benefit plans for its directors, officers or employees) if at such
time (i) there shall have occurred any event of which the Company has actual
knowledge that (a) with the giving of notice or the lapse of time or both, would
constitute an Event of Default hereunder and (b) in respect of which the Company
shall not have taken reasonable steps to cure, (ii) the Company shall be in
default with respect to its payment of any obligations under the related Wells
Fargo Guarantee or (iii) the Company shall have given notice of its election to
begin an Extension Period as provided herein and shall not have rescinded such
notice, or such period, or any extension thereof, shall be continuing.
The Company also covenants with each holder of Securities of a series
issued to a Wells Fargo Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such Wells Fargo Trust; provided, however,
that any permitted successor of the Company hereunder may succeed to the
Company's ownership of such Common Securities, (ii) not to voluntarily
terminate, wind up or liquidate such Wells Fargo Trust, except (a) in connection
with a distribution of the Securities of such series to the holders of Preferred
Securities in liquidation of such Wells Fargo Trust or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the related Trust
Agreement and (iii) to use its reasonable efforts, consistent with the terms and
provisions of such Trust Agreement, to cause such Wells Fargo Trust to remain
classified as a grantor trust and not an association taxable as a corporation
for United States federal income tax purposes.
ARTICLE FIVE
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE
Section 5.01. COMPANY TO FURNISH TRUSTEE INFORMATION AS TO THE NAMES
AND ADDRESSES OF SECURITYHOLDERS. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee, semiannually not more than 5
days after January 15 and July 15 of each year beginning with July 1997, and at
such other times as the Trustee may request in writing within 30 days after
receipt by the Company of any such request, a list in such form as the Trustee
may reasonably require containing all information in the possession or control
of the Company, or any Paying Agent or any registrar of the Securities of such
series, other than the Trustee, as to the names and addresses of the holders of
Securities of such series obtained (in the case of each
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list other than the first list) since the date as of which the next previous
list was furnished; provided, however, that if the Trustee shall be the
registrar of the Securities of such series, no such list need be furnished. Any
such list may be dated as of a date not more than fifteen days prior to the time
such information is furnished or caused to be furnished, and need not include
information received after such date.
Section 5.02. TRUSTEE TO PRESERVE INFORMATION AS TO THE NAMES AND
ADDRESSES OF SECURITYHOLDERS RECEIVED BY IT. (a) The Trustee shall preserve, in
as current a form as is reasonably practicable, all information as to the names
and addresses of the holders of Securities of each series (1) contained in the
most recent list furnished to it as provided in Section 5.01 and (2) received by
it in the capacity of Paying Agent or registrar (if so acting). The Trustee may
destroy any list furnished to it as provided in Section 5.01 upon receipt of a
new list so furnished.
(b) In case three or more holders of Securities (hereinafter referred
to as "applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other holders of
Securities of any series or with holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either
(1) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section, or
(2) inform such applicants as to the approximate number of holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communications, if any, specified in such
application.
If the Trustee shall elect not to afford such access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the holders of Securities of such series, or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the holders of Securities of such series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every holder of the Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Paying Agent nor any registrar shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under said subsection (b).
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(d) If there shall be different Trustees acting hereunder with respect
to separate series of Securities, applicants shall make separate applications
hereunder to each such Trustee, and such Trustees shall collaborate, if
necessary, in acting under this Section.
Section 5.03. ANNUAL AND OTHER REPORTS TO BE FILED BY COMPANY WITH
TRUSTEE. (a) The Company covenants and agrees to file with the Trustee within
fifteen days after the Company is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees to file with the Trustee and the
Commission, in accordance with the rules and regulations prescribed from time to
time by the Commission, such additional information, documents, and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company covenants and agrees to transmit to the holders of
Securities within 30 days after the filing thereof with the Trustee, in the
manner and to the extent provided in subsection (c) of Section 5.04 with respect
to reports pursuant to subsection (a) of said Section 5.04, such summaries of
any information, documents and reports required to be filed by the Company
pursuant to subsections (a) and (b) of this Section as may be required by rules
and regulations prescribed from time to time by the Commission.
Section 5.04. TRUSTEE TO TRANSMIT ANNUAL REPORT TO SECURITYHOLDERS.
(a) On or before July 15, 1997, and on or before July 15 in every year
thereafter, if and so long as any Securities are outstanding hereunder, the
Trustee shall transmit to the Securityholders as hereinafter in this Section
provided, a brief report dated as of the preceding May 15 with respect to any of
the following events which may have occurred within the previous twelve (12)
months (but if no such event has occurred within such period no report need be
transmitted):
(1) Any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) The creation of or any material change to a relationship which,
with the occurrence of an Event of Default, would create a conflicting
interest within the meaning of the Trust Indenture Act;
(3) The character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of any series, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to state such advances if such advances so
remaining unpaid aggregate not more than one-half of one percent of the
principal amount of the Securities of such series outstanding on the date
of such report;
(4) Any change to the amount, interest rate, and maturity date of
all other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4), or (6) of
subsection (b) of Section 7.13;
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(5) Any change to the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(6) Any additional issue of Securities which the Trustee has not
previously reported; and
(7) Any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 6.07.
(b) The Trustee shall transmit to the Securityholders, as
hereinafter provided, a brief report with respect to the character and amount of
any advances (and if the Trustee elects so to state, the circumstances
surrounding the making thereof) made by the Trustee (as such) since the date of
the last report transmitted pursuant to the provisions of subsection (a) of this
Section (or if such report has not yet been so transmitted, since the date of
execution of this Indenture), for the reimbursement of which it claims or may
claim a lien or charge prior to that of the Securities of any series on property
or funds held or collected by it as Trustee, and which it has not previously
reported pursuant to this subsection, except that the Trustee shall not be
required (but may elect) to report such advances if such advances remaining
unpaid at any time aggregate ten percent or less of the principal amount of
Securities of such series outstanding at such time, such report to be
transmitted within 90 days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail to
all holders of Securities of any series, as the names and addresses of such
holders shall appear upon the Register of the Securities of such series.
(d) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities of any series are listed and also with the
Commission. The Company will notify the Trustee when and as the Securities of
any series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01. EVENTS OF DEFAULT DEFINED. The term "Event of Default"
whenever used herein with respect to Securities of any series shall mean any one
of the following events:
(a) Default in the payment of any installment of interest upon any of
the Securities of such series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days (subject
to the deferral of any due date in the case of an Extension Period); or
(b) Default in the payment of all or any part of the principal of any
of the Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or
otherwise; or
(c) Failure on the part of the Company duly to observe or perform in
any material respect any other of the covenants or agreements on the part
of the Company in the Securities or in this Indenture (including any
supplemental indenture or pursuant to any Officers' Certificate as
contemplated by Section 2.01) specifically contained for the benefit of the
Securities of such series, for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee, or
to the Company and the Trustee by the holders of not less than 25% in
principal amount of the Securities of such series and all other series so
benefited (all series voting as one class) at the time
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outstanding under this Indenture a written notice specifying such failure
and stating that such is a "Notice of Default" hereunder; or
(d) The commencement by the Company of a voluntary case under Chapter
7 or Chapter 11 of the federal Bankruptcy Code or any other similar state
or federal law now or hereafter in effect, or the consent by the Company to
the entry of a decree or order for relief in an involuntary case under any
such law, or the consent by the Bank to the appointment of a liquidating
agent or committee, conservator or receiver under 12 U.S.C. (S)(S) 181,
191, 203 or 1821 (other than a conservator appointed as the result of
circumstances described in 12 U.S.C. (S) 203(a)(6), (7) or (8) or 12 U.S.C.
(S) 1821(c)(5)(D) or (E) pursuant to an order of the relevant federal
banking authority stating that such conservator has been appointed solely
pursuant to one or more of such subsections), or other similar state or
federal law now or hereafter in effect; or
(e) The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Company in an involuntary
case under Chapter 7 or Chapter 11 of the federal Bankruptcy Code or any
other similar state or federal law now or hereafter in effect, and the
continuance of any such decree or order unstayed and in effect for a period
of 90 days, or the appointment of a liquidating agent or committee,
conservator or receiver under 12 U.S.C. (S)(S) 181, 191, 203 or 1821 (other
than a conservator appointed as the result of circumstances described in 12
U.S.C. (S) 203(a)(6), (7) or (8) or 12 U.S.C. (S) 1821(c)(5)(D) or (E)
pursuant to an order of the relevant federal banking authority stating that
such conservator has been appointed solely pursuant to one or more of such
subsections), or other similar state or federal law now or hereafter in
effect, and the continuance of any such appointment unstayed and in effect
for a period of 90 days.
If an Event of Default under clauses (a), (b) or (c) above shall have
occurred and be continuing (but, in the case of clause (c), only if the Event of
Default is with respect to less than all series of Securities then outstanding
under this Indenture), unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in principal amount of all the then outstanding Securities of the
series as to which such Event of Default under clauses (a), (b) or (c) above has
occurred (each such series voting as a separate class in the case of an Event of
Default under clauses (a) or (b), and all such series voting as one class in the
case of an Event of Default under clause (c)), by notice in writing to the
Company (and to the Trustee if given by Securityholders) may declare the
principal amount (or if Securities of any series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all the Securities of such series, or of all such
series in the case of an Event of Default under clause (c) above, in each case
together with any accrued interest, to be due and payable immediately, and upon
any such declaration the same shall become and shall be immediately due and
payable; provided, however, that in the case of the Securities of a series
issued to a Wells Fargo Trust, if upon an Event of Default, the Trustee or the
holders of at least 25% in principal amount of the outstanding Securities of
that series fail to declare the principal of all the Securities of that series
to be immediately due and payable, the holders of at least 25% in aggregate
liquidation amount of the corresponding series of Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee. If an Event of Default under clauses (c), (d) or (e) above shall have
occurred and be continuing (but, in the case of clause (c), only if the Event of
Default is with respect to all Securities then outstanding under the Indenture),
then and in each and every such case, unless the principal of all the Securities
shall have already become due and payable, either the Trustee or the holders of
not less than 25% in principal amount of all the then outstanding Securities of
each series as to which such Event of Default under clauses (c), (d) or (e)
above has occurred (voting as one class), by notice in writing to the Company
(and to the Trustee if given by Securityholders) may declare the principal
amount (or if Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all the Securities as to which the Event of Default under clauses
(c), (d) or (e) above has occurred, together with any accrued interest, to be
due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything contained in this Indenture
or in the Securities to the contrary notwithstanding; provided, however, that in
the case of the Securities of a series issued to a Wells Fargo Trust, if upon an
Event of Default, the Trustee or the
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holders of not less than 25% in principal amount of the outstanding Securities
of that series fail to declare the principal of all the Securities of that
series to be immediately due and payable, the holders of at least 25% in
aggregate liquidation amount of the corresponding series of Preferred Securities
then outstanding shall have such right by a notice in writing to the Company and
the Trustee. The foregoing provisions, however, are subject to the condition
that if, at any time after the principal amount (or specified portion thereof)
of the Securities of any one or more series (or of all the Securities, as the
case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of moneys due shall have been obtained or
entered as hereinafter provided, the Company shall pay or shall deposit with the
Trustee a sum sufficient to pay all matured installments of interest upon all
the Securities of such series (or upon all the Securities, as the case may be)
and the principal of any and all Securities of such series (or of any and all
the Securities, as the case may be) which shall have become due otherwise than
by declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of each such series to the date of
such payment or deposit) and the amounts payable to the Trustee under Section
7.06, and any and all defaults under the Indenture with respect to Securities of
such series (or all Securities, as the case may be), other than the nonpayment
of principal of and any accrued interest on Securities of such series (or any
Securities, as the case may be) which shall have become due by declaration,
shall have been cured, remedied or waived as provided in Section 6.06, then and
in every such case the holders of a majority in principal amount of the
Securities of such series (or of all the Securities, as the case may be) then
outstanding and as to which such Event of Default has occurred (such series or
all series voting as one class, if more than one series are so entitled) by
written notice to the Company and to the Trustee, may rescind and annul such
declaration and its consequences. In the case of Securities issued to a Wells
Fargo Trust, should the holders of such Securities fail to annul such
declaration and waive such default, the holders of a majority in aggregate
liquidation preference of related Preferred Securities shall have such right;
but no such rescission and annulment shall extend to or shall affect any
subsequent default, or shall impair any right consequent thereon.
In case the Trustee, any holder of Securities or any holder of
Preferred Securities shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, such holder of Securities or such holder of
Preferred Securities then and in every such case the Company, the Trustee, the
holders of the Securities of such series (or of all the Securities, as the case
may be) and the holders of Preferred Securities shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Company and the Trustee, the holders of the Securities of such
series (or of all the Securities, as the case may be) and the holders of
Preferred Securities shall continue as though no such proceedings had been
taken.
Section 6.02. COVENANT OF COMPANY TO PAY TO TRUSTEE WHOLE AMOUNT DUE
ON SECURITIES ON DEFAULT IN PAYMENT OF INTEREST OR PRINCIPAL. The Company
covenants that (1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days (subject to the deferral of any due date in the case of an
Extension Period), or (2) in case default shall be made in the payment of all or
any part of the principal of any of the Securities of any series when the same
shall have become due and payable, whether upon maturity of the Securities of
such series or upon any redemption or upon declaration or otherwise, then, upon
demand of the Trustee, the Company will pay to the Trustee, for the benefit of
the holders of the Securities of such series, the whole amount that then shall
have become due and payable on all such Securities of such series for principal
or interest, or both, as the case may be, with interest upon the overdue
principal and installments of interest (to the extent permitted by law) at the
rate or rates of interest borne by or prescribed therefor in the Securities of
such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred, and all advances made, by the Trustee hereunder other
than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or
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proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
any other obligor upon such Securities, and collect in the manner provided by
law out of the property of the Company or any other obligor upon such Securities
wherever situated the moneys adjudged or decreed to be payable.
The Trustee shall be entitled and empowered, either in its own name or
as trustee of an express trust, or as attorney-in-fact for the holders of the
Securities of any series, or in any one or more of such capacities (irrespective
of whether the principal of the Securities of such series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand pursuant to the provisions of
this Section) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) and interest owing and unpaid in respect of the Securities
of such series and to file such other documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable
compensation of the Trustee, its agents and counsel, and for reimbursement of
all expenses, disbursements and liabilities incurred, and all advances made, by
the Trustee, its agents and counsel, except as a result of its negligence or bad
faith) and of the holders of the Securities of such series allowed in any equity
receivership, insolvency, bankruptcy, liquidation, arrangement, readjustment,
reorganization or any other judicial proceedings relative to the Company or any
other obligor on the Securities or their creditors, or their property. The
Trustee is hereby irrevocably appointed (and the successive respective holders
of the Securities of each series by taking and holding the same shall be
conclusively deemed to have so appointed the Trustee) the true and lawful
attorney-in-fact of the respective holders of the Securities of such series,
with authority to make and file in the respective names of the holders of the
Securities of such series, or on behalf of the holders of the Securities of such
series as a class, any proof of debt, amendment of proof of debt, claim,
petition or other document in any such proceeding and to receive payment of any
sums becoming distributable on account thereof, and to execute any such other
papers and documents and to do and perform any and all such acts and things for
and on behalf of such holders of the Securities, as may be necessary or
advisable in the opinion of the Trustee in order to have the respective claims
of the Trustee and of the holders of the Securities of such series allowed in
any such proceedings, and to receive payment of or on account of such claims and
to distribute the same, and any receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.06; provided,
however, that nothing herein shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of such series or the rights of any holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
holder of Securities of such series in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series, may be enforced by the Trustee
without the possession of any of the Securities of such series, or the
production thereof on any trial or other proceeding relative thereto, and any
such suit or proceeding instituted by the Trustee, shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall be,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of such Trustee, its agents and counsel, for the
ratable benefit of the holders of the Securities of such series.
Section 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
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First: To the payment of costs and expenses of collection, and of all
amounts payable to the Trustee under Section 7.06;
Second: In case the principal of the outstanding Securities in
respect of which moneys have been collected shall not have become due and
be unpaid, to the payment of any interest on such Securities, in the order
of the maturity of the installments of such interest, with interest upon
the overdue installments of interest (so far as permitted by law and to the
extent that such interest has been collected by the Trustee) at the rate or
rates of interest borne by, or prescribed therefor in, such Securities,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference;
Third: In case the principal of the outstanding Securities in respect
of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon such Securities for principal and interest, if any, with
interest on the overdue principal and any installments of interest (so far
as permitted by law and to the extent that such interest has been collected
by the Trustee) at the rate or rates of interest borne by, or prescribed
therefor in, such Securities; and in case such moneys shall be insufficient
to pay in full the whole amount so due and unpaid upon such Securities,
then to the payment of such principal and interest, without preference or
priority of principal over interest, or of interest over principal, or of
any installment of interest over any other installment of interest, or of
any Security over any other Security, ratably to the aggregate of such
principal and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
Section 6.04. LIMITATION ON SUITS BY HOLDERS OF SECURITIES. No
holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Indenture
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than 25% in principal amount of all the
Securities at the time outstanding (considered as one class) shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.06; it being understood and intended, and being
expressly covenanted by the taker and holder of every Security with every other
taker and holder and the Trustee, that no one or more holders of Securities
shall have any right in any manner whatever by virtue or by availing of any
provision of this Indenture to affect, disturb or prejudice the rights of the
holders of any other of such Securities, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Securities. For the protection and enforcement
of the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any holder of any Security to receive payment of the principal of and interest
on such Security, on or after the respective due dates expressed in such
Security (or, in the case of redemption on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such holder.
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Section 6.05. ON DEFAULT TRUSTEE MAY TAKE APPROPRIATE ACTION. In
case of a default hereunder the Trustee may in its discretion proceed to protect
and enforce the rights vested in it by this Indenture by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law. All powers
and remedies given by this Article to the Trustee or to the Securityholders
shall, to the extent permitted by law, be deemed cumulative and not exclusive of
any thereof or of any other powers and remedies available to the Trustee or the
holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee, of any holder of any of the
Securities or any holder of Preferred Securities to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 8.04, every
power and remedy given by this Article or by law to the Trustee, to the
Securityholders or the holders of Preferred Securities may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee, by the
Securityholders or by the holders of Preferred Securities, as the case may be.
In the case of Securities of a series issued to a Wells Fargo Trust,
any holder of the corresponding series of Preferred Securities issued by such
Wells Fargo Trust shall have the right, upon the occurrence of an Event of
Default described in Section 6.01(a) or (b) above, to institute a suit directly
against the Company for enforcement of payment to such holder of principal of
(including premium, if any) and interest (including any Additional Interest) on
the Securities having a principal amount equal to the aggregate liquidation
amount of such Preferred Securities of the corresponding series held by such
holder.
Section 6.06. RIGHTS OF HOLDERS OF MAJORITY IN PRINCIPAL AMOUNT OF
SECURITIES TO DIRECT TRUSTEE AND TO WAIVE DEFAULT. The holders of a majority in
principal amount of the Securities of any one or more series or of all the
Securities, as the case may be (voting as one class), at the time outstanding
(determined as provided in Section 8.04) shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to such one or more series; provided, however, that, subject to Section
7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee being advised by Opinion of Counsel determines that the action so
directed may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Officers of the Trustee, determine that the proceedings
so directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Securityholders of such one or more series not
parties to such direction, and provided further that nothing in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by such
Securityholders of such one or more series. The holders of a majority in
principal amount of the Securities of all series as to which a default hereunder
has occurred (all series voting as one class) at the time outstanding
(determined as provided in Section 8.04) and, in the case of any Securities of a
series issued to a Wells Fargo Trust, the holders of a majority in aggregate
liquidation amount of the Preferred Securities issued by such Wells Fargo Trust,
may waive any past default hereunder and its consequences, except a default in
the payment of the principal of or interest on any of such Securities or in
respect of a covenant or provision hereof which under Article Ten cannot be
modified or amended without the consent of the holder of each Security so
affected. Upon any such waiver, such default shall cease to exist and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture, but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon. Any such waiver shall be
deemed to be on behalf of the holders of all the Securities of such series or,
in the case of a waiver by holders of Preferred Securities issued by such Wells
Fargo Trust, by all holders of Preferred Securities issued by such Wells Fargo
Trust.
Section 6.07. TRUSTEE TO GIVE NOTICE OF DEFAULTS KNOWN TO IT, BUT MAY
WITHHOLD IN CERTAIN CIRCUMSTANCES. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, give to the holders of the Securities of such series in the manner and
to the extent
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provided in subsection (c) of Section 5.04 with respect to reports pursuant to
subsection (a) of said Section 5.04, notice of such default known to the Trustee
unless such default shall have been cured, remedied or waived before the giving
of such notice (the term "default" for the purposes of this Section being hereby
defined to be the events specified in clauses (c), (d) and (e) of Section 6.01,
default in the payment of the principal of or interest on Securities of any
series, and any additional events specified in the terms of any series of
Securities pursuant to Section 2.01, not including any periods of grace provided
for therein, and irrespective of the giving of written notice specified in any
such terms, and irrespective of the delivery of any Officers' Certificate
provided for in any such terms); provided, that, except in the case of default
in the payment of the principal of or interest on any of the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the Executive Committee, or a Trust Committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the holders of the
Securities of such series.
Section 6.08. REQUIREMENT OF AN UNDERTAKING TO PAY COSTS IN CERTAIN
SUITS UNDER THE INDENTURE OR AGAINST THE TRUSTEE. All parties to this Indenture
agree, and each holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any holder of Securities of
any series, or group of such Securityholders, holding in the aggregate more than
ten percent in principal amount of all the Securities (all series considered as
one class) outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security, on
or after the due date expressed in such Security (or in the case of any
redemption, on or after the date fixed for redemption).
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. UPON EVENT OF DEFAULT OCCURRING AND CONTINUING, TRUSTEE
SHALL EXERCISE POWERS VESTED IN IT, AND USE SAME DEGREE OF CARE AND SKILL IN
THEIR EXERCISE, AS A PRUDENT MAN WOULD USE. The Trustee, prior to the
occurrence of an Event of Default and after the curing, remedying or waiving of
all Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case
an Event of Default has occurred (which has not been cured, remedied or waived)
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct; provided, however, that
(a) Prior to the occurrence of an Event of Default and after the
curing, remedying or waiving of all Events of Default which may have occurred:
(1) The duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trustee shall
not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) In the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any
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certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent facts;
(c) The Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the holders of Securities pursuant to Section 6.06 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 7.01; and
(e) None of the provisions contained in this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties hereunder or in the
exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
Section 7.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as
otherwise provided in Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) Any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
Resolution of the Company may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) The Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such written advice or Opinion of
Counsel;
(d) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) The Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture;
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other paper or document, unless requested in writing to do so by the
holders of Securities pursuant to Section 6.06; provided, however, that if the
payment within a reasonable time to the
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Trustee of the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding; and provided further,
that nothing in this subsection (f) shall require the Trustee to give the
Securityholders any notice other than that required by Section 6.07. The
reasonable expense of every such examination shall be paid by the Company or, if
paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(h) The Trustee shall be under no responsibility for the approval by
it in good faith of any expert for any of the purposes expressed in this
Indenture.
Section 7.03. TRUSTEE NOT LIABLE FOR RECITALS IN INDENTURE OR IN
SECURITIES. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of any of the
Securities or of the proceeds thereof.
Section 7.04. MAY OWN SECURITIES. The Trustee or any agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Securities with the same rights it would have if it were
not Trustee or such agent.
Section 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST WITHOUT
INTEREST. Subject to the provisions of Section 12.04, all moneys received by
the Trustee shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder.
Section 7.06. TRUSTEE ENTITLED TO COMPENSATION, REIMBURSEMENT AND
INDEMNITY. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of any express trust), and, the Company will pay or reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with the acceptance or
administration of its trust under this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel and of
all persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its negligence or bad faith. The Company also
covenants to indemnify the Trustee and its agents for, and to hold them harmless
against, any loss, liability or expense incurred without negligence or bad faith
on their part and arising out of or in connection with the acceptance or
administration of this trust and performance of their duties hereunder,
including the costs and expenses (including fees and disbursements of their
counsel) of defending themselves against any claim or liability in connection
with the exercise or performance of any of the powers or duties hereunder. The
obligations of the Company under this Section to compensate the Trustee, to pay
or reimburse the Trustee for expenses, disbursements and advances and to
indemnify and hold harmless the Trustee shall constitute additional indebtedness
hereunder and shall survive the satisfaction and discharge of this Indenture and
the resignation or removal of the Trustee. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of or interest, if any, on the Securities.
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Section 7.07. RIGHT OF TRUSTEE TO RELY ON OFFICERS' CERTIFICATE WHERE
NO OTHER EVIDENCE SPECIFICALLY PRESCRIBED. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08. DISQUALIFICATION; CONFLICTING INTERESTS. If the
Trustee has or shall acquire any conflicting interest, within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions of,
the Trust Indenture Act and this Indenture. To the extent permitted by such
Act, the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under the First National Bank of Chicago Indenture.
Section 7.09. REQUIREMENTS FOR ELIGIBILITY OF TRUSTEE. The Trustee
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States or any State or territory thereof or of the
District of Columbia authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000, subject
to supervision or examination by federal, state, territorial, or District of
Columbia authority and having its principal office and place of business in the
City and County of Chicago or San Francisco, or in the Borough of Manhattan, The
City of New York, if there be such a corporation having its principal office and
place of business in said places willing to act upon reasonable and customary
terms and conditions. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 7.10.
Neither the Company, any other obligor upon the Securities, nor any person
directly or indirectly controlling, controlled by, or under common control with
the Company or any such obligor shall serve as Trustee under this Indenture.
Section 7.10. RESIGNATION OF TRUSTEE. (a) The Trustee, or any
trustee or trustees hereafter appointed, may at any time resign with respect to
one or more or all series of Securities by giving written notice of such
resignation to the Company and by giving to the holders of Securities of the
applicable series notice thereof in the manner and to the extent provided in
subsection (c) of Section 5.04 with respect to reports pursuant to subsection
(a) of Section 5.04. Upon receiving such notice of resignation and if the
Company shall deem it appropriate evidence satisfactory to it of such mailing,
the Company shall promptly appoint a successor Trustee with respect to the
applicable series (it being understood that any successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and at any time there shall be only one Trustee with respect to the Securities
of any particular series) by written instrument, in duplicate, executed pursuant
to a Resolution of the Company, one copy of which instrument shall be delivered
to the resigning Trustee and one copy to the successor Trustee. If no successor
Trustee shall have been so appointed with respect to any series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.08,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor Trustee. Such court may thereupon after such
notice, if any, as it may deem proper and prescribe, appoint a successor
Trustee.
(b) In case at any time any of the following shall occur:
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(1) The Trustee shall fail to comply with the provisions of subsection
(a) of Section 7.08 after written request therefor by the Company or by any
Securityholder who has been a bona fide holder of a Security or Securities
of the applicable series for at least six months, unless the Trustee's duty
to resign is stayed as provided in Section 7.08 of this Indenture, or
(2) The Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Securityholder, or
(3) The Trustee shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to the
applicable series and appoint a successor Trustee with respect to the applicable
series by written instrument, in duplicate, executed pursuant to a Resolution of
the Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor Trustee, or, subject to the provisions of
Section 6.08, any Securityholder who has been a bona fide holder of a Security
or Securities of the applicable series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee with respect to the applicable series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor Trustee.
(c) The holders of a majority in principal amount of the Securities of
any one series voting as a separate class or all series voting as one class at
the time outstanding (determined as provided in Section 8.04) may at any time
remove the Trustee with respect to the applicable series or all series, as the
case may be, and appoint a successor Trustee with respect to the applicable
series or all series, as the case may be, by written instrument or instruments
signed by such holders or their attorneys-in-fact duly authorized, or by the
affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
Nine), and by delivery thereof to the Trustee so removed, to the successor
Trustee and to the Company.
(d) Any resignation or removal of the Trustee and any appointment of a
successor Trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor Trustee as provided in
Section 7.11.
Section 7.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor Trustee
with respect to all series of Securities appointed as provided in Section 7.10
shall execute, acknowledge and deliver to the Company and to its predecessor
Trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor Trustee with respect to all or any
applicable series shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as Trustee herein; but,
nevertheless, on the written request of the Company or of the successor Trustee,
the Trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor Trustee all the rights and powers with respect to
such series of the Trustee so ceasing to act. Upon the request of any such
successor Trustee, the Company shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such Trustee or
any successor Trustee to secure any amounts then due it pursuant to the
provisions of Section 7.06.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to
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the Securities of such series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of such series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of such series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental Indenture shall constitute such Trustees co-
Trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of such series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of such series to which the appointment of such
successor Trustee relates.
No successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
qualified under the provisions of Section 7.08 and eligible under the provisions
of Section 7.09.
Upon acceptance of appointment by a successor Trustee as provided in
this Section, the successor Trustee shall at the expense of the Company transmit
notice of the succession of such Trustee hereunder to the holders of Securities
of any applicable series in the manner and to the extent provided in subsection
(c) of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04.
Section 7.12. SUCCESSOR TO TRUSTEE BY MERGER, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 7.13. LIMITATIONS ON RIGHTS OF TRUSTEE AS A CREDITOR TO
OBTAIN PAYMENT OF CERTAIN CLAIMS WITHIN THREE MONTHS PRIOR TO DEFAULT OR DURING
DEFAULT, OR TO REALIZE ON PROPERTY AS SUCH CREDITOR THEREAFTER. (a) Subject to
the provisions of subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor on the Securities within three months prior to a
default, as defined in subsection (c) of this Section, or subsequent to such a
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default, then, unless and until such default shall be cured, the Trustee shall
set apart and hold in a special account for the benefit of the Trustee
individually, the holders of the Securities of the one or more indenture
securities (as defined in subsection (c) of this Section):
(1) An amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three months' period, and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
paragraph (2) of this subsection, or from the exercise of any right of set-
off which the Trustee could have exercised if a petition in bankruptcy had
been filed by or against the Company upon the date of such default; and
(2) All property received by the Trustee in respect of any claims as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such property if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the
Trustee:
(A) To retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable thereon,
(ii) the proceeds of the bona fide sale of any such claim by the Trustee to
a third person, and (iii) distributions made in cash, securities, or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to title 11 of
the United States Code or applicable state laws;
(B) To realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) To realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
months' period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received, the
Trustee had no reasonable cause to believe that a default, as defined in
subsection (c) of this Section, would occur within three months; or
(D) To receive payment on any claim referred to in paragraph (B) or
(C) against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C), and (D), property substituted
after the beginning of such three months period for property held as security at
the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any such paragraphs is created in renewal
of or in substitution for or for the purpose of repaying or refunding any pre-
existing claim of the Trustee as such creditor, such claim shall have the same
status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned
between the Trustee, the holders of Securities of the one or more series for
which it is acting as Trustee, and the holders of other indenture securities in
such manner that the Trustee, such Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to title 11 of the
United States Code or applicable state law, the same percentage of their
respective claims, figured before crediting to the claim of the Trustee anything
on account of the receipt by it from the Company of the funds and property in
such special account and
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before crediting to the respective claims of the Trustee, such Securityholders,
and the holders of other indenture securities dividends on claims filed against
the Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to title 11 of the United States Code or applicable state law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim in bankruptcy or receivership or in
proceedings for reorganization pursuant to title 11 of the United States Code or
applicable state law, whether such distribution is made in cash, securities, or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, such Securityholders, and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claim, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) The receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three months' period; and
(ii) Such receipt of property or reduction of claim occurred within
three months after such resignation or removal;
(b) There shall be excluded from the operation of subsection (a) of
this Section a creditor relationship arising from:
(1) The ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) Advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Securityholders at the time and in the
manner provided in Section 5.04(c) with respect to reports pursuant to
subsections (a) and (b) thereof, respectively;
(3) Disbursements made in the ordinary course of business in the
capacity of Trustee under an indenture, transfer agent, registrar,
custodian, Paying Agent, fiscal agent or depositary, or other similar
capacity;
(4) An indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of this
Section;
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(5) The ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) The acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) of
this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment in full
of the principal of or interest upon any of the Securities or upon the
other indenture securities when and as such principal or interest becomes
due and payable.
(2) The term "other indenture securities" shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act of
1939, as amended) outstanding under any other indenture (A) under which the
Trustee is also trustee, (B) which contains provisions substantially
similar to the provisions of subsection (a) of this Section, and (C) under
which a default exists at the time of the apportionment of the funds and
property held in said special account.
(3) The term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise, or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the Securities.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. EVIDENCE OF ACTION BY SECURITYHOLDERS. Whenever in
this Indenture it is provided that the holders of a specified percentage in
principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any notice,
consent, or waiver or the taking of any other action), the fact that at the time
of taking any such action the holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such holders of Securities voting
in favor thereof at any meeting of such Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of such
Securityholders.
If there shall be more than one Trustee acting hereunder with respect
to separate series of Securities, such Trustees shall collaborate, if necessary,
in acting under Article Nine and in determining whether
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the holders of a specified percentage in principal amount of the Securities of
any or all series have taken any such action.
Section 8.02. PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF
SECURITIES. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Securityholder or his agent or proxy and
proof of the holding by any person of any of the Securities shall be sufficient
if made in the following manner:
The fact and date of the execution by any such person of any
instrument may be proved in any reasonable manner acceptable to the Trustee.
The ownership of Securities of any series shall be proved by the
Register of such Securities of such series, or by certificates of the Security
registrar or registrars thereof.
The Trustee shall not be bound to recognize any person as a
Securityholder unless and until this title to the Securities held by him is
proved in the manner in this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section as it shall deem reasonable.
Section 8.03. WHO MAY BE DEEMED OWNERS OF SECURITIES. Prior to due
presentment for registration of transfer of any Security, the Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name such Security shall be registered upon the Register of
Securities of the series of which such Security is a part as the absolute owner
of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or an account of the principal of and interest,
subject to Section 2.03, on such Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such holder for the time being, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability of moneys payable upon any such Security.
Section 8.04. SECURITIES OWNED BY COMPANY OR CONTROLLED OR
CONTROLLING PERSONS DISREGARDED FOR CERTAIN PURPOSES. In determining whether
the holders of the requisite principal amount of Securities have concurred in
any demand, direction, request, notice, vote, consent, waiver or other action
under this Indenture, Securities which are owned by the Company or any other
obligor on the Securities or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on the Securities shall be disregarded and deemed not to be
outstanding for the purpose of any such determination, provided that for the
purposes of determining whether the Trustee shall be protected in relying on any
such demand, direction, request, notice, vote, consent, waiver or other action,
only Securities which a Responsible Officer of the Trustee assigned to its
principal office knows are so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section, if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right to vote such Securities and that the pledgee is
not a person directly or indirectly controlling or controlled by or under direct
or indirect common control with the Company or any such other obligor. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all Securities, if any, known by
the Company to be owned or held by or for the account of the Company or any
other obligor on the Securities or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on the Securities; and, subject to the provisions
of Section 7.01, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set
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forth and of the fact that all Securities not listed therein are outstanding for
the purpose of any such determination.
Section 8.05. INSTRUMENTS EXECUTED BY SECURITYHOLDERS BIND FUTURE
HOLDERS. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security which is shown by the
evidence to be included in the Securities the holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such holder and upon all future holders and owners
of such Security, and of any Security issued in lieu thereof, irrespective of
whether any notation in regard thereto is made upon such Security. Any action
taken by the holders of the percentage in principal amount of the Securities of
any or all series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Trustee and the holders of
all of the Securities of such series subject, however, to the provisions of
Section 7.01.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of holders of Securities of any or all series may be called at any time and from
time to time pursuant to the provisions of this Article for any of the following
purposes:
(1) To give any notice to the Company or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by holders of Securities of any or all series, as the case may be,
pursuant to any of the provisions of Article Six;
(2) To remove the Trustee and appoint a successor Trustee pursuant to
the provisions of Article Seven;
(3) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) To take any other action authorized to be taken by or on behalf of
the holders of any specified principal amount of the Securities of any or
all series, as the case may be, under any other provision of this Indenture
or under applicable law.
Section 9.02. MANNER OF CALLING MEETINGS. The Trustee may at any
time call a meeting of Securityholders to take any action specified in Section
9.01, to be held at such time and at such place in the City and County of San
Francisco, State of California, as the Trustee shall determine. Notice of every
meeting of Securityholders setting forth the time and place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
mailed not less than 20 nor more than 60 days prior to the date fixed for the
meeting.
Section 9.03. CALL OF MEETING BY COMPANY OR SECURITYHOLDERS. In case
at any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of not less than ten percent in principal amount of the Securities
of any or all series, as the case may be, then outstanding, shall have requested
the Trustee to call a meeting of holders of Securities of any or all series, as
the case may be, to take any action authorized in Section 9.01 by written
request setting forth in reasonable detail the action proposed to be taken
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at the meeting, and the Trustee shall not have mailed notice of such meeting
within 20 days after receipt of such request, then the Company or such holders
of Securities in the amount above specified may determine the time and place in
the City and County of San Francisco, State of California for such meeting and
may call such meeting to take any action authorized in Section 9.01, by mailing
notice thereof as provided in Section 9.02.
Section 9.04. WHO MAY ATTEND AND VOTE AT MEETINGS. To be entitled to
vote at any meeting of Securityholders a person shall (a) be a holder of one or
more Securities with respect to which the meeting is being held, or (b) be a
person appointed by an instrument in writing as proxy by such holder of one or
more Securities. The only persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 9.05. REGULATIONS MAY BE MADE BY TRUSTEE. Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable
regulations as it may deem advisable for any meeting of Securityholders, in
regard to proof of the holding of Securities and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think fit. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 8.02 and the appointment of any proxy shall be proved in the manner
specified in said Section 8.02; provided, however, that such regulations may
provide that written instruments appointing proxies regular on their face, may
be presumed valid and genuine without the proof hereinabove or in said Section
8.02 specified.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount of Securities held or represented by him, provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security challenged as
not outstanding and ruled by the chairman of the meeting to be not outstanding;
provided, however, that each holder of Original Issue Discount Securities shall
be entitled to one vote for each $1,000 amount which would be due upon
acceleration of his Original Issue Discount Security on the date of the meeting.
The chairman of the meeting shall have no right to vote other than by virtue of
Securities held by him or instruments in writing as aforesaid duly designating
him as the person to vote on behalf of other Securityholders. Any meeting of
Securityholders duly called pursuant to the provisions of Section 9.02 or 9.03
may be adjourned from time to time, and the meeting may be held so adjourned
without further notice.
At any meeting of Securityholders, the presence of persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the persons holding or
representing a majority in principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
Section 9.06. MANNER OF VOTING AT MEETINGS AND RECORD TO BE KEPT.
The vote upon any resolution submitted to any meeting of Securityholders shall
be by written ballots on which shall be subscribed the signatures of the holders
of Securities or of their representatives by proxy and the principal amount or
principal amounts of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders shall be
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prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 9.02. The record shall show the
principal amount or principal amounts of the Securities voting in favor of or
against any resolution. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the Trustee to be
preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. EXERCISE OF RIGHTS OF TRUSTEE, SECURITYHOLDERS AND
HOLDERS OF PREFERRED SECURITIES NOT TO BE HINDERED OR DELAYED. Nothing in this
Article contained shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Securityholders or any rights expressly or impliedly
conferred hereunder to make such call any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee, to the
Securityholders or the holders of Preferred Securities under any of the
provisions of this Indenture or of the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. PURPOSES FOR WHICH SUPPLEMENTAL INDENTURES MAY BE
ENTERED INTO WITHOUT CONSENT OF SECURITYHOLDERS. The Company, when authorized
by a Resolution of the Company, and the Trustee may from time to time and at any
time enter into an indenture or indentures supplemental hereto, in form
satisfactory to such Trustee (which shall comply with the provisions of the
Trust Indenture Act of 1939 as then in effect), for one or more of the following
purposes:
(a) To evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation of
the covenants, agreements and obligations of the Company pursuant to Article
Eleven hereof;
(b) To add to the covenants of the Company such further covenants,
restrictions or conditions as the Company and the Trustee shall consider to be
for the protection of the holders of all or any series of Securities (and if
such covenants, restrictions or conditions are to be for the benefit of less
than all series of Securities, stating that such covenants, restrictions or
conditions are expressly being included solely for the benefit of such series),
and to make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an Event
of Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default;
(c) To add or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons;
(d) To change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no Security of any series outstanding created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision;
(e) To establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.02;
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(f) To cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental
indenture, or to make such other provision in regard to matters or questions
arising under this Indenture or any supplemental indenture which shall not
adversely affect the interests of the holders of the Securities; provided that
such action shall not adversely affect the interest of the holders of Securities
of any series in any material respect or, in the case of the Securities of a
series issued to a Wells Fargo Trust and for so long as any of the corresponding
series of Preferred Securities issued by such Wells Fargo Trust shall remain
outstanding, the holders of such Preferred Securities;
(g) To mortgage or pledge to the Trustee as security for the
Securities any property or assets which the Company may desire to mortgage or
pledge as security for the Securities; and
(h) To qualify, or maintain the qualification of, the Indenture under
the Trust Indenture Act.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, mortgage, pledge or assignment of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Company and the Trustee without the consent of
the holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
Section 10.02. MODIFICATION OF INDENTURE WITH CONSENT OF HOLDERS OF A
MAJORITY IN PRINCIPAL AMOUNT OF SECURITIES. With the consent (evidenced as
provided in Section 8.01) of the holders of not less than a majority in
principal amount of the Securities of all series at the time outstanding
(determined as provided in Section 8.04) affected by such supplemental indenture
(voting as one class), the Company, when authorized by a Resolution of the
Company, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto (which shall be in conformity with
the provisions of the Trust Indenture Act of 1939 as then in effect) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Securities of each such
series; provided, however, that no such supplemental indenture shall without the
consent of the holders of all Securities then outstanding (i) change the fixed
maturity of any Securities, or reduce the rate or extend the time of payment of
any interest thereon or on any overdue principal amount, or reduce the principal
amount thereof, or change the provisions pursuant to which the rate of interest
on any Security is determined if such change could reduce the rate of interest
thereon, or reduce the minimum rate of interest thereon, or reduce any amount
payable upon any redemption thereof, or adversely affect any right to convert
the Securities in accordance herewith, or reduce the amount to be paid at
maturity or upon redemption in Capital Stock or make the principal thereof or
any interest thereon or on any overdue principal amount payable in any coin or
currency other than that provided in the Security without the consent of the
holder of each Security so affected, (ii) reduce the aforesaid percentage of
Securities, the holders of which are required to consent to any such
supplemental indenture, or (iii) modify any of the provisions of this Section,
Section 4.07 or Section 6.06, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the holder of each Security affected thereby or
(iv) modify the provisions of Article Fourteen with respect to the subordination
of outstanding Securities of any series in a manner adverse to the holders
thereof; provided that, in the case of the Securities of a series issued to a
Wells Fargo Trust, so long as any of the corresponding series of Preferred
Securities issued by such Wells Fargo Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate liquidation preference
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of such Preferred Securities then outstanding unless and until the principal
(and premium, if any) of the Securities of such series and all accrued and
unpaid interest (including any Additional Interest) thereon have been paid in
full; and (ii) no amendment shall be made to Section 6.05 of this Indenture that
would impair the rights of the holders of Preferred Securities provided therein
without the prior consent of the holders of each Preferred Security then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and unpaid interest (including any
Additional Interest) thereon have been paid in full.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or Preferred
Securities, or which modifies the rights of holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
holders of Securities or holders of Preferred Securities of any other series.
Upon the request of the Company, accompanied by a copy of a Resolution
of the Company certified by the Secretary or an Assistant Secretary of the
Company authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall mail a notice to the holders of Securities of each series so affected,
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Company to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supplemental
indenture.
Section 10.03. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Securities shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
The Trustee shall be entitled to receive, and subject to the
provisions of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel
as conclusive evidence that any such supplemental indenture complies with the
provisions of this Article and stating that the Securities affected by the
supplemental indenture, when such Securities are authenticated and delivered by
the Trustee and executed and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will be valid and binding
obligations of the Company, except as any rights thereunder may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors' rights generally and by general equity principles.
Section 10.04. SECURITIES MAY BEAR NOTATION OF CHANGES BY
SUPPLEMENTAL INDENTURES. Securities authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article, or after any action taken at a Securityholders' meeting pursuant to
Article Nine, may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture or as to any action taken at
any such meeting. If the Company or the Trustee shall so determine, new
Securities so modified as to conform, in the opinion of the Trustee and the
Board of Directors of the Company, to any
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modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered in
exchange for the Securities then outstanding.
Section 10.05. REVOCATION AND EFFECT OF CONSENTS. Until an
amendment, supplement, waiver or other action becomes effective, a consent to it
by a Securityholder of a Security is a continuing consent conclusive and binding
upon such Securityholder and every subsequent Securityholder of the same
Security or portion thereof, and of any Security issued upon the transfer
thereof or in exchange therefor or in place thereof, even if notation of the
consent is not made on any such Security. Any such Securityholder or subsequent
Securityholder may not revoke the consent as to his Security or portion of a
Security.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Securityholders
at such record date (or their duly designated proxies), and only such Persons,
shall be entitled to consent to such amendment, supplement or waiver, whether or
not such Persons continue to be Securityholders after such record date. No such
consent shall be valid or effective for more than 180 days after such record
date. Such record date shall be the later of 30 days prior to the first
solicitation of such consent or the date of the most recent list of
Securityholders furnished to the Trustee pursuant to Section 5.01.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Securityholder.
ARTICLE ELEVEN
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 11.01. COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. The
Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, firm or corporation, unless (i) either the Company shall be the
continuing corporation, or the successor corporation (if other than the Company)
shall be a corporation organized and existing under the laws of the United
States of America or a State thereof or the District of Columbia and such
corporation shall expressly assume the due and punctual payment of the principal
of and interest on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Company by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, (ii) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or condition,
and (iii) in the case of Securities of a series issued to a Wells Fargo Trust,
such consolidation, merger, conveyance, transfer or lease is permitted under the
related Trust Agreement and Wells Fargo Guarantee and does not give rise to any
breach or violation of the related Trust Agreement or Wells Fargo Guarantee.
Section 11.02. SUCCESSOR CORPORATION SUBSTITUTED. In case of any
such consolidation, merger, sale or conveyance and upon any such assumption by
the successor corporation, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as the party of the first part. Such successor corporation thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Securities issuable hereunder which theretofore shall
not have been delivered to the Trustee; and upon the order of such successor
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
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In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
Section 11.03. OPINION OF COUNSEL TO TRUSTEE. The Trustee shall be
entitled to receive, and subject to the provisions of Section 7.01 shall be
entitled to rely upon, an Opinion of Counsel as conclusive evidence that any
such consolidation, merger, sale or conveyance and any such assumption, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
Section 12.01. SATISFACTION AND DISCHARGE OF INDENTURE. If (a) the
Company shall deliver to the Trustee for cancellation all Securities of any
series theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.07) and not theretofore cancelled, or (b) all the
Securities of such series not theretofore cancelled or delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and the Company shall deposit with the Trustee as trust funds the
entire amount sufficient to pay at maturity or upon redemption all of such
Securities not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and any interest due or to become due to such
date of maturity or redemption date, as the case may be, and if in either case
the Company shall also pay or cause to be paid all other sums payable hereunder
by the Company with respect to Securities of such series, then this Indenture
shall cease to be of further effect with respect to Securities of such series
(except as to (i) remaining rights of registration of transfer, conversion,
substitution and exchange and the Company's right of optional redemption of
Securities of such series, (ii) rights hereunder of holders to receive payments
of principal of, and any interest on, the Securities of such series, and other
rights, duties and obligations of the holders of Securities of such series as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee, and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company hereby agrees to
compensate the Trustee for any services thereafter reasonably and properly
rendered and to reimburse the Trustee for any costs or expenses theretofore and
thereafter reasonably and properly incurred by the Trustee in connection with
this Indenture or the Securities of such series.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any or all series, the obligations of the Company
to the Trustee under Section 7.06 hereof shall survive.
Section 12.02. APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT
OF SECURITIES. Subject to Section 12.04, all moneys deposited with the Trustee
pursuant to Section 12.01 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the holders of the particular Securities of
such series, for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest.
Section 12.03. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys with respect to Securities of such series
then held by any Paying Agent under the provisions of this Indenture shall, upon
demand of the Company, be paid to the Trustee and thereupon such Paying Agent
shall be released from all further liability with respect to such moneys.
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Section 12.04. REPAYMENT OF MONEYS HELD BY TRUSTEE. Any moneys
deposited with the Trustee or any Paying Agent for the payment of the principal
of or any interest on any Securities of any series and not applied but remaining
unclaimed by the holders of Securities of such series for two years after the
date upon which such payment shall have become due and payable, shall, at the
request of the Company, be repaid to the Company by the Trustee or by such
Paying Agent on May 31 of each year upon receipt of the written request of the
Company; and the holder of any of the Securities of such series entitled to
receive such payment shall thereafter look only to the Company for the payment
thereof; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once a week for two successive weeks (in each case on any day of
the week) in an Authorized Newspaper, or mailed to the registered holders
thereof, a notice that said moneys have not been so applied and that after a
date named therein any unclaimed balance of said money then remaining will be
returned to the Company.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS AND EMPLOYEES
Section 13.01. INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND
EMPLOYEES OF COMPANY EXEMPT FROM INDIVIDUAL LIABILITY. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against every such incorporator,
stockholder, officer or director, as such, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom are hereby expressly waived and released as a condition of
and as a consideration for, the execution of this Indenture and the issue of
such Securities.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 14.01. AGREEMENT TO SUBORDINATE. The Company, for itself,
its successors and assigns, covenants and agrees, and each holder of a Security
of any series likewise covenants and agrees by his acceptance thereof, that the
obligation of the Company to make any payment on account of the principal of and
interest on each and all of the Securities of any series shall be subordinate
and junior in right of payment to the Company's obligations to the holders of
Senior Indebtedness of the Company, and that in the case of any insolvency,
receivership, conservatorship, reorganization, readjustment of debt, marshalling
of assets and liabilities or similar proceedings or any liquidation or winding-
up of or relating to the Company as a whole, whether voluntary or involuntary,
all obligations of the Company to holders of Senior Indebtedness of the Company
shall be entitled to be paid in full before any payment shall be made on account
of the principal of or interest on any of the Securities. In the event of any
such proceeding, after payment in full of all sums owing with respect to Senior
Indebtedness of the Company, the holders of the Securities of each series,
together with the holders of any obligations of the Company ranking on a parity
with the Securities, shall be entitled to be paid from the remaining assets of
the Company the amounts at the time due and owing on account of unpaid principal
of and
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interest on the Securities of any series before any payment or other
distribution, whether in cash, property or otherwise, shall be made on account
of any capital stock or any obligations of the Company ranking junior to the
Securities. In addition, in the event of any such proceeding, if any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities of any series shall
be received by the Trustee or the holders of the Securities of any series before
all Senior Indebtedness of the Company is paid in full, such payment or
distribution shall be held in trust for the benefit of and shall be paid over to
the holders of such Senior Indebtedness of the Company or their representative
or representatives or to the trustee or trustees under any indenture under which
any instruments evidencing any of such Senior Indebtedness of the Company may
have been issued, ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all such Senior Indebtedness
of the Company shall have been paid in full, after giving effect to any
concurrent payment or distribution to the holders of such Senior Indebtedness of
the Company. The obligations of the Company in respect of the Securities of all
series shall rank on a parity with any obligations of the Company ranking on a
parity with the Securities. Nothing in this Section 14.01 shall apply to claims
of, or payments to, the Trustee under or pursuant to Section 7.06.
The subordination provisions of the foregoing paragraph shall not be
applicable to amounts at the time due and owing on the Securities of any series
on account of the unpaid principal of or interest on the Securities of such
series for the payment of which funds have been deposited in trust with the
Trustee or any Paying Agent or have been set aside by the Company in trust in
accordance with the provisions of this Indenture; nor shall such provisions
impair any rights, interests, or powers of any secured creditor of the Company
in respect of any security the creation of which is not prohibited by the
provisions of this Indenture.
The Company shall give prompt written notice to the Trustee of any
insolvency, receivership, conservatorship, reorganization, readjustment of debt,
marshalling of assets and liabilities or similar proceedings or any liquidation
or winding-up of or relating to the Company as a whole, whether voluntary or
involuntary. The Trustee, subject to the provisions of Section 7.01, shall be
entitled to assume that, and may act as if, no such event has occurred unless a
Responsible Officer of the Trustee assigned to the Trustee's Corporate Trust
Division has received at the principal office of the Trustee from the Company or
any one or more holders of Senior Indebtedness of the Company or any trustee
therefor (who shall have been certified or otherwise established to the
satisfaction of the Trustee to be such a holder or trustee) written notice
thereof. Upon any distribution of assets of the Company referred to in this
Article, the Trustee and holders of the Securities of each series shall be
entitled to rely upon any order or decree of a court of competent jurisdiction
in which proceedings relating to any event specified in the first sentence of
this paragraph are pending for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon, and all other facts pertinent thereto or to this
Article, and the Trustee, subject to the provisions of Article Seven, and the
holders of the Securities of each series shall be entitled to rely upon a
certificate of the liquidating trustee or agent or other person making any
distribution to the Trustee or to the holders of the Securities of each series
for the purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article. In the absence of any
such liquidating trustee, agent or other person, the Trustee shall be entitled
to rely upon a written notice by a Person representing himself to be a holder of
Senior Indebtedness of the Company (or a trustee or representative on behalf of
such holder) as evidence that such Person is a holder of such Senior
Indebtedness (or is such a trustee or representative). In the event that the
Trustee determines, in good faith, that further evidence is required with
respect to the right of any Person, as a holder of Senior Indebtedness of the
Company, to participate in any payment or distribution pursuant to this Section,
the Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, as to the extent to which such Person is entitled to participation
in such payment or distribution, and as to other facts pertinent to the rights
of such Person under this Section, and if such evidence is not furnished, the
Trustee may
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defer any payment to such Person pending judicial determination as to the right
of such Person to receive such payment.
Section 14.02. OBLIGATION OF THE COMPANY UNCONDITIONAL. Nothing
contained in this Article or elsewhere in this Indenture is intended to or shall
impair, as between the Company and the holders of the Securities of each series,
the obligation of the Company, which is absolute and unconditional, to pay to
such holders the principal of and interest on such Securities of each series
when, where and as the same shall become due and payable, all in accordance with
the terms of such Securities, or is intended to or shall affect the relative
rights of such holders and creditors of the Company other than the holders of
the Senior Indebtedness of the Company, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Indebtedness
of the Company in respect of cash, property, or securities of the Company
received upon the exercise of any such remedy.
Section 14.03. LIMITATIONS ON DUTIES TO HOLDERS OF SENIOR
INDEBTEDNESS OF THE COMPANY. With respect to the holders of Senior Indebtedness
of the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article, and no
implied covenants or obligations with respect to the holders of Senior
Indebtedness of the Company shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness of the Company, except with respect to moneys
held in trust pursuant to the first paragraph of Section 14.01.
Section 14.04. NOTICE TO TRUSTEE OF FACTS PROHIBITING PAYMENT.
Notwithstanding any of the provisions of this Article or any other provisions of
this Indenture, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee unless and until a Responsible Officer of the
Trustee assigned to its Corporate Trust Division shall have received at the
principal office of the Trustee written notice thereof from the Company or from
one or more holders of Senior Indebtedness of the Company or from any trustee
therefor who shall have been certified by the Company or otherwise established
to the reasonable satisfaction of the Trustee to be such a holder or trustee;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 7.01, shall be entitled in all respects to assume that
no such facts exist; provided, however, that, if prior to the fifth Business Day
preceding the date upon which by the terms hereof any such moneys may become
payable for any purpose, or in the event of the execution of an instrument
pursuant to Section 12.01 acknowledging satisfaction and discharge of this
Indenture, then if prior to the second Business Day preceding the date of such
execution, the Trustee shall not have received with respect to such moneys the
notice provided for in this Section, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and/or apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it on or after such date; provided, however, no such application
shall affect the obligations under this Article of the Persons receiving such
moneys from the Trustee.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee therefor) to establish that such notice has been
given by a holder of Senior Indebtedness (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Indebtedness held by such Person, to the
extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
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Section 14.05. APPLICATION BY TRUSTEE OF MONEYS DEPOSITED WITH IT.
Anything in this Indenture to the contrary notwithstanding, any deposit of
moneys by the Company with the Trustee or any agent (whether or not in trust)
for any payment of the principal of or interest on any Securities shall, except
as provided in Section 14.04, be subject to the provisions of Section 14.01.
Section 14.06. SUBROGATION. Subject to the payment in full of all
Senior Indebtedness of the Company, the holders of the Securities of each series
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of assets of the Company applicable to such
Senior Indebtedness until the Securities shall be paid in full, and none of the
payments or distributions to the holders of such Senior Indebtedness to which
the holders of the Securities of any series or the Trustee would be entitled
except for the provisions of this Article or of payments over, pursuant to the
provisions of this Article, to the holders of such Senior Indebtedness by the
holders of such Securities or the Trustee shall, as between the Company, its
creditors other than the holders of such Senior Indebtedness, and the holders of
such Securities, be deemed to be a payment by the Company to or on account of
such Senior Indebtedness; it being understood that the provisions of this
Article are and are intended solely for the purpose of defining the relative
rights of the holders of such Securities, on the one hand, and the holders of
the Senior Indebtedness of the Company, on the other hand.
Section 14.07. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS
OF COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS OF THE COMPANY. No right of any
present or future holders of any Senior Indebtedness of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof with which any such holder may have or be
otherwise charged. The holders of Senior Indebtedness of the Company may, at
any time or from time to time and in their absolute discretion, change the
manner, place or terms of payment, change or extend the time of payment of, or
renew or alter, any such Senior Indebtedness of the Company, or amend or
supplement any instrument pursuant to which any such Senior Indebtedness of the
Company is issued or by which it may be secured, or release any security
therefor, or exercise or refrain from exercising any other of their rights under
the Senior Indebtedness of the Company including, without limitation, the waiver
of default thereunder, all without notice to or assent from the holders of the
Securities of each series or the Trustee and without affecting the obligations
of the Company, the Trustee or the holders of such Securities under this
Article.
Section 14.08. AUTHORIZATION OF TRUSTEE TO EFFECTUATE SUBORDINATION
OF SECURITIES. Each holder of a Security of any series, by his acceptance
thereof, authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate, as between the holders
of such Securities and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article. If, in the event of any proceeding or
other action relating to the Company referred to in the first sentence of
Section 14.01, a proper claim or proof of debt in the form required in such
proceeding or action is not filed by or on behalf of the holders of the
Securities of any series prior to fifteen days before the expiration of the time
to file such claim or claims, then the holder or holders of Senior Indebtedness
of the Company shall have the right to file and are hereby authorized to file an
appropriate claim for and on behalf of the holders of such Securities.
Section 14.09. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT. In
the event and during the continuation of any default in the payment of principal
of (or premium, if any) or interest on any Senior Indebtedness, or in the event
that any event of default with respect to any Senior Indebtedness shall have
occurred and be continuing and shall have resulted in such Senior Indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, unless and until such event of default
shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or in the event any judicial
proceeding shall be pending with respect to any such default in payment or such
event or default, then no payment or distribution of any kind or character,
whether in cash, properties or securities shall be made by the Company on
account of principal of (or premium, if any)
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or interest (including any Additional Interest), if any, on the Securities or on
account of the purchase or other acquisition of Securities by the Company or any
subsidiary.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such holder, then and in such event payment shall be paid over and delivered
forthwith to the Company.
Section 14.10. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS OF THE
COMPANY. The Trustee shall be entitled to all of the rights set forth in this
Article in respect of any Senior Indebtedness of the Company at any time held by
it in its individual capacity to the same extent as any other holder of such
Senior Indebtedness, and nothing in this Indenture shall be construed to deprive
the Trustee of any of its rights as such holder.
Section 14.11. ARTICLE FOURTEEN NOT TO PREVENT DEFAULTS. The failure
to make a payment pursuant to the terms of Securities of any series by reason of
any provision in this Article shall not be construed as preventing the
occurrence of a default under this Indenture.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
Section 15.01. APPLICABILITY OF ARTICLE. Securities of any series
which are convertible into Capital Stock of the Company shall be convertible in
accordance with their terms and (except as otherwise specified as contemplated
by Section 2.01 for Securities of any series) in accordance with this Article.
Section 15.02. CONVERSION PRIVILEGE. If Securities of a series are
subject to conversion, as specified pursuant to Section 2.01, then subject to
and upon compliance with the provisions of this Article, at the option of the
holder thereof, any such Security may, at any time until and including, but not
after the close of business on the date specified in such Security, or in case
such Security or some portion thereof shall be called for redemption pursuant to
Section 3.02 prior to such date, then, with respect to such Security or portion
thereof as is so called, until and including, but (if no default is made in
making due provision for the payment of the redemption price) not after, the
close of business on, the date fixed for redemption, be converted, in whole, or
in part in whole multiples of $1,000 principal amount, at 100% of the principal
amount of such Security (or portion thereof), into fully paid and non-assessable
shares of the Company's Capital Stock, as specified in the Security, issuable
upon conversion of the Securities, at the conversion price in effect at the Date
of Conversion (as hereinafter defined).
Section 15.03. EXERCISE OF CONVERSION PRIVILEGE. In order to
exercise the conversion privilege, the holder of any Security to be converted
shall surrender such Security to the Company at any time during usual business
hours at the offices or agencies to be maintained by the Company in accordance
with the provisions of Section 4.02 with respect to the Securities to be
converted, accompanied by a fully executed written notice, in the form set forth
on the reverse of the Security, that the holder elects to convert such Security
or a stated portion thereof constituting a whole multiple of $1,000 principal
amount, and, if such Security is surrendered for conversion during the period
between the close of business on the record date next preceding the Interest
Payment Date (as defined in the Security) and the opening of business on the
Interest Payment Date and has not been called for redemption on a redemption
date within such period (or on such Interest Payment Date), accompanied also by
payment of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of the Security being surrendered for conversion. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Capital Stock shall be issued.
Securities surrendered for conversion shall (if so required by the Company or
the Trustee) be duly endorsed by, or be accompanied by written instrument or
instruments of transfer in form satisfactory to the Company duly executed by,
the holder or its attorney duly authorized in writing. As promptly as
practicable after the receipt of such
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notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 15.09, issue and deliver at such office or
agency to such holder, or to such other person on his written order, a
certificate or certificates for the number of full shares of Capital Stock
issuable on such conversion of Securities in accordance with the provisions of
this Article and cash, as provided in Section 15.04, in respect of any fraction
of a share of Capital Stock otherwise issuable upon conversion. Such conversion
shall be deemed to have been effected immediately prior to the close of business
on the date (herein called the "Date of Conversion") on which such notice shall
have been received by the Company and such Security shall have been surrendered
as aforesaid, accompanied also by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of the Security
being surrendered for conversion, and the person or persons in whose name or
names any certificate or certificates for shares of Capital Stock shall be
issuable upon such conversion shall be deemed to have become on the Date of
Conversion the holder or holders of record of the shares of Capital Stock
represented thereby; provided, however, that any such surrender on any date when
the stock transfer books of the Company shall be closed shall constitute the
person or persons in whose name or names the certificate or certificates for
such shares are to be issued as the recordholder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open but such conversion shall nevertheless be at the
conversion price in effect at the close of business on the date when such
Security shall have been so surrendered with the conversion notice. In the case
of conversion of a portion, but less than all, of a Security, the Company shall
execute, and the Trustee shall authenticate and deliver to the holder thereof,
at the expense of the Company, a Security or Securities in the aggregate
principal amount of the unconverted portion of the Security surrendered. Except
as otherwise expressly provided in Section 2.01, no payment or adjustment shall
be made for interest accrued on any Security converted or for accrued dividends
or distributions on any Capital Stock issued upon conversion of any Security or
portion thereof.
Section 15.04. FRACTIONAL INTERESTS. No fractions of shares or scrip
representing fractions of shares shall be issued upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the
same holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. If any fraction of a share of Capital Stock would,
except for the provisions of this Section, be issuable on the conversion of any
Security or Securities, the Company shall make payment in lieu thereof in an
amount of United States dollars equal to the value of such fraction computed on
the basis of the current market price of the Capital Stock, rounded to the
nearest cent. The current market price of a share of Capital Stock is the
closing price reported by the New York Stock Exchange consolidated transaction
reporting system for the last trading day before the Date of Conversion. In the
absence of such a quotation, the Company shall determine the current market
price on the basis of such quotation or quotations as it considers appropriate.
Any determination that the Company or the Board of Directors makes regarding
fractional shares shall be conclusive.
Section 15.05. CONVERSION PRICE. The conversion price per share of
Capital Stock issuable upon conversion of the Securities shall be as specified
in such Securities.
Section 15.06. ADJUSTMENT OF CONVERSION PRICE. The conversion price
(herein called the "Conversion Price") shall be subject to adjustment from time
to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Capital Stock, (2) subdivide its outstanding shares of
Capital Stock into a greater number of shares or (3) combine its outstanding
shares of Capital Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the holder of
any Security thereafter surrendered for conversion shall be entitled to receive
the number of shares of Capital Stock which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (e) below, after the
record date in the case of a dividend and shall become effective immediately
after the effective date in the case of a subdivision or combination. If after
an adjustment a holder upon conversion of the Capital Stock may receive shares
of two or more classes of Capital Stock of the Company, the Company shall
determine the allocation of the adjusted Conversion Price between the classes of
Capital Stock. After such allocation, the
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conversion privilege and Conversion Price of each class of Capital Stock shall
thereafter be subject to adjustment on terms comparable to those set forth in
this paragraph.
(b) In case the Company shall issue rights or warrants to all holders
of Capital Stock entitling them (for a period not exceeding 45 days from the
date of such issuance) to subscribe for or purchase shares of Capital Stock at a
price per share less than the current market price per share (as determined
pursuant to subsection (d) below) of the Capital Stock on the record date
mentioned below, the Conversion Price shall be adjusted to a price, computed to
the nearest cent, in accordance with the following formula:
N x P
-----
AP = CP x 0 + M
--------
0 + N
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
O = the number of shares of Capital Stock outstanding on the
record date for the distribution.
N = the number of additional shares of Capital Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Capital Stock on the
record date.
Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of holders
entitled to receive such rights or warrants.
(c) In case the Company shall distribute to all holders of Capital
Stock, evidences of indebtedness, equity securities other than Capital Stock or
other assets (other than cash dividends or other distributions to the extent
paid from current or retained earnings of the Company), or shall distribute to
all holders of Capital Stock rights or warrants to subscribe to securities
(other than those referred to in subsection (b) above), then in each such case
the Conversion Price shall be adjusted in accordance with the following formula:
AP = CP x M - F
-------
M
where:
AP = the adjusted Conversion Price.
CP = the current Conversion Price.
M = the current market price per share of Capital Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants applicable to one share of
Capital Stock, as determined by the Company.
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Such adjustment shall become effective immediately, except as provided in
subsection (e) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b) and (c)
above, the current market price per share of Capital Stock on any date shall be
deemed to be the average of the closing price of the Capital Stock reported by
the New York Stock Exchange consolidated transaction reporting system for the 30
consecutive trading days commencing 45 trading days before the date of
determination. In the absence of one or more such quotations, the Company shall
determine the current market price on the basis of such quotations as it
considers appropriate.
(e) In any case in which this Section shall require that an adjustment
be made immediately following a record date, the Company may elect to defer the
effectiveness of such adjustment (but in no event until a date later than the
effective time of the event giving rise to such adjustment), in which case the
Company shall, with respect to any Security converted after such record date and
before such adjustment shall have become effective (i) defer paying any cash
payment pursuant to Section 15.04 or issuing to the holder of such Security the
number of shares of Capital Stock and other capital stock of the Company
issuable upon such conversion in excess of the number of shares of Capital Stock
and other capital stock of the Company issuable thereupon only on the basis of
the Conversion Price prior to adjustment, and (ii) not later than five Business
Days after such adjustment shall have become effective, pay to such holder the
appropriate cash payment pursuant to Section 15.04 and issue to such holder the
additional shares of Capital Stock and other capital stock of the Company
issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such
price; provided, that any adjustments which by reason of this subsection (f) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein provided, the
Company shall promptly (i) file with the Trustee and each conversion agent an
Officers' Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment,
which certificate shall be conclusive evidence of the correctness of such
adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to
each holder of Securities at his address as the same appears on the registry
books of the Company.
Anything in this Section to the contrary notwithstanding the Company shall be
entitled to make such adjustments in the Conversion Price, in addition to those
required by this Section, and to make any election under Treasury Regulation
(S)1.305-3(d)(2), as it in its discretion shall determine to be advisable in
order that any stock dividend, subdivision of shares, distribution of rights or
warrants to purchase stock or securities, or distribution of other assets (other
than cash dividends) hereafter made by the Company to its stockholders shall not
be taxable.
Section 15.07. CONTINUATION OF CONVERSION PRIVILEGE IN CASE OF
RECLASSIFICATION, CHANGE, MERGER, CONSOLIDATION OR SALE OF ASSETS. If any of
the following shall occur, namely: (a) any reclassification or change of
outstanding shares of Capital Stock issuable upon conversion of the Securities
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination), (b) any
consolidation, merger or combination of the Company with another corporation as
a result of which the holders of Capital Stock shall be entitled to receive
stock, other securities or other assets with respect to or in exchange for
Capital Stock or (c) sale or conveyance of all or substantially all of the
property or business of the Company as an entirety as a result of which the
holders of Capital Stock shall be entitled to receive stock, other securities or
other assets with respect to or in exchange for Capital Stock, then the Company
or such successor or purchasing corporation, as the case may be, shall, as a
condition precedent to such reclassification, change, consolidation, merger,
combination, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture (which shall conform to the Trust Indenture Act of 1939
as in force at the date
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of the execution thereof) providing that the holder of each Security then
outstanding shall have the right to convert such Security into the kind and
amount of shares of stock and other securities and property receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
by a holder of the number of shares of Capital Stock issuable upon conversion of
such Security immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. If, in the case of
any such consolidation, merger, combination, sale or conveyance, the stock or
other securities and property receivable thereupon by a holder of shares of
Capital Stock includes shares of stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, merger, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the holders
of the Securities as the Board of Directors shall reasonably consider necessary
by reason of the foregoing. The provisions of this Section shall similarly apply
to successive consolidations, mergers, combinations, sales or conveyances.
Notice of the execution of each such supplemental indenture shall be
mailed to each holder of Securities at his address as the same appears on the
registry books of the Company.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property receivable by holders of Securities upon the
conversion of their Securities after any such reclassification, change,
consolidation, merger, sale or conveyance or to any adjustment to be made with
respect thereto, but, subject to the provisions of Sections 7.01 and 7.02, may
accept as conclusive evidence of the correctness of any such provisions, and
shall be protected in relying upon, the Officers' Certificate (which the Company
shall be obligated to file with the Trustee prior to the execution of such any
supplemental indenture) with respect thereto.
Section 15.08. NOTICE OF CERTAIN EVENTS. In case:
(a) the Company shall declare a dividend (or any other distribution)
payable to the holders of Capital Stock otherwise than in cash; or
(b) the Company shall authorize the granting to the holders of Capital
Stock of rights to subscribe for or purchase any shares of stock of any class or
of any other rights; or
(c) the Company shall authorize any reclassification or change of the
Capital Stock (other than a subdivision or combination of its outstanding shares
of Capital Stock), or any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is required, or
the sale or conveyance of all or substantially all the property or business of
the Company;
then, the Company shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Securities as provided in Section 4.02, and
shall cause to be mailed to each holder of Securities, at his address as it
shall appear on the registry books of the Company, at least 20 days before the
date hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the date on
which (1) a record is expected to be taken for the purpose of such dividend,
distribution or rights, or if a record is not to be taken, the date as of which
the holders of Capital Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (2) such reclassification,
change, consolidation, merger, sale, conveyance, dissolution, liquidation or
winding-up is expected to become effective and the date, if any is to be fixed,
as of which it is expected that holders of Capital Stock of record shall be
entitled to exchange their shares of Capital Stock for securities or other
property deliverable upon such reclassification, change, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up.
58
<PAGE>
Section 15.09. TAXES ON CONVERSION. The Company will pay any and all
documentary, stamp or similar taxes payable to the United States of America or
any political subdivision or taxing authority thereof or therein in respect of
the issue or delivery of shares of Capital Stock on conversion of Securities
pursuant thereto; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Capital Stock in a name other than that of the
holder of the Securities to be converted and no such issue or delivery shall be
made unless and until the person requesting such issue or delivery has paid to
the Company the amount of any such tax or has established, to the satisfaction
of the Company, that such tax has been paid. The Company shall pay no tax that
may be payable with respect to any other taxes imposed in connection with
conversion of Securities.
Section 15.10. COMPANY TO PROVIDE STOCK. The Company shall reserve,
free from preemptive rights, out of its authorized but unissued shares of
Capital Stock, sufficient shares to provide for the conversion of the Securities
from time to time as such Securities are presented for conversion, provided,
that nothing contained herein shall be construed to preclude the Company from
satisfying its obligations in respect of the conversion of Securities by
delivery of repurchased shares of Capital Stock which are held in the treasury
of the Company.
If any shares of Capital Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be, provided, however, that nothing in
this Section shall be deemed to affect in any way the obligations of the Company
to convert Securities into Capital Stock as provided in this Article.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Capital Stock, the
Company will take all corporate action which may, in the Opinion of Counsel, be
necessary in order that the Company may validly and legally issue fully paid and
nonassessable shares of Capital Stock at such adjusted Conversion Price.
The Company covenants that all shares of Capital Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable by the Company and free of preemptive rights.
Section 15.11. DISCLAIMER OF RESPONSIBILITY FOR CERTAIN MATTERS.
Neither the Trustee nor any agent of the Trustee shall at any time be under any
duty or responsibility to any holder of Securities to determine whether any
facts exist which may require an adjustment of the Conversion Price, or with
respect to the Officers' Certificate referred to in Section 15.06(g), or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. Neither the Trustee nor any agent
of the Trustee shall be accountable with respect to the validity or value (or
the kind or amount) of any shares of Capital Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Security; and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any agent of the
Trustee shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Capital Stock or stock certificates or
other securities or property upon the surrender of any Security for the purpose
of conversion or, subject to Sections 7.01 and 7.02, to comply with any of the
covenants of the Company contained in this Article.
Section 15.12. RETURN OF FUNDS DEPOSITED FOR REDEMPTION OF CONVERTED
SECURITIES. Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any other Paying Agent for the
purpose of paying the principal of and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Article, shall after such conversion be repaid
to the Company by the Trustee or such other Paying Agent.
59
<PAGE>
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
Section 16.01. SUCCESSORS AND ASSIGNS OF COMPANY BOUND BY INDENTURE.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 16.02. ACTS OF BOARD, COMMITTEE OR OFFICER OF SUCCESSOR
CORPORATION VALID. Any act or proceeding by any provision of this Indenture
authorized or required to be done or performed by any board, committee or
officer or officers of the Company shall and may be done and performed with like
force and effect by the like board, committee or officer or officers of any
corporation that shall at the time be the lawful sole successor of the Company.
Section 16.03. REQUIRED NOTICES OR DEMANDS MAY BE SERVED BY MAIL.
Any notice or demand which by any provisions of this Indenture is required or
permitted to be given or served by the Trustee, by the holders of Securities or
by the holders of Preferred Securities to or on the Company may be given or
served by registered mail postage prepaid addressed (until another address is
filed by the Company with the Trustee for such purpose), as follows: Wells Fargo
& Company, Attention: Treasurer, 475 Sansome Street, San Francisco, California
94163. Any notice, direction, request, demand, consent or waiver by the Company,
by any Securityholder or by any holder of a Preferred Security to or upon the
Trustee shall be deemed to have been sufficiently given, made or filed, for all
purposes, if given, made or filed in writing at the principal office of the
Trustee, Attention: Vice President - Corporate Trust Administration.
Section 16.04. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE
FURNISHED UPON APPLICATIONS OR DEMANDS BY THE COMPANY. Upon any request or
application by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture, other than certificates provided pursuant to
Section 4.06, shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, upon the certificate, statement or opinion of or
representations by an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
60
<PAGE>
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants, unless such officer or counsel, as the case may be, knows that the
certificate or opinion or representations with respect to the accounting matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
Section 16.05. PAYMENTS DUE ON SATURDAYS, SUNDAYS, AND HOLIDAYS. In
any case where the date of payment of interest on or principal of the Securities
of any series or the date fixed for any redemption of any Security of any series
shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with the
same force and effect as if made on the date fixed for the payment of interest
on or principal of the Security or the date fixed for any redemption of any
Security of such series, and no additional interest shall accrue for the period
after such date and before payment.
Section 16.06. PROVISIONS REQUIRED BY TRUST INDENTURE ACT OF 1939 TO
CONTROL. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such required
provision shall control.
Section 16.07. INDENTURE AND SECURITIES TO BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF CALIFORNIA. This Indenture and each Security
shall be deemed to be a contract made under the laws of the State of California,
and for all purposes shall be construed in accordance with the laws of said
State, provided, however, that the rights and duties of the Trustee hereunder
shall be construed in accordance with the laws of the State of the Trustee's
principal place of business.
Section 16.08. PROVISIONS OF THE INDENTURE AND SECURITIES FOR THE
SOLE BENEFIT OF THE PARTIES AND THE SECURITYHOLDERS. Nothing in this Indenture
or in the Securities, expressed or implied, shall give or be construed to give
any person, firm or corporation, other than the parties hereto and their
successors and assigns and the holders of the Securities, any legal or equitable
right, remedy or claim under or in respect of this Indenture, or under any
covenant, condition and provision herein contained; all its covenants,
conditions and provisions being for the sole benefit of the parties hereto and
their successors and assigns and of the holders of the Securities and, to the
extent expressly provided in Sections 6.01, 6.05, 6.06, 9.07, 10.01 and 10.02,
the holders of Preferred Securities.
Section 16.09. INDENTURE MAY BE EXECUTED IN COUNTERPARTS. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
Section 16.10. SECURITIES IN FOREIGN CURRENCIES. Whenever this
Indenture provides for any action by, or any distribution to, holders of
Securities denominated in United States dollars and in any other currency, in
the absence of any provision to the contrary in the form of Security of any
particular series, the relative amount in respect of any Security denominated in
a currency other than United States dollars shall be treated for any such action
or distribution as that amount of United States dollars that could be obtained
for such amount on such reasonable basis of exchange and as of such date as the
Company may specify in a written notice to the Trustee.
The First National Bank of Chicago, the party of the second part,
hereby accepts the trusts in this Indenture declared and provided, upon the
terms and conditions hereinabove set forth.
61
<PAGE>
IN WITNESS WHEREOF, WELLS FARGO & COMPANY, the party of the first
part, has caused this Indenture to be signed and acknowledged by its Chairman of
the Board or its Vice Chairman of the Board or its President or one of its Vice
Presidents, and its corporate seal to be affixed hereunto, and the same to be
attested by its Secretary or an Assistant Secretary; and THE FIRST NATIONAL BANK
OF CHICAGO, the party of the second part, has caused this Indenture to be signed
and acknowledged by one of its Vice Presidents and has caused its corporate seal
to be affixed hereunto, and the same to be attested by one of its Assistant Vice
Presidents, all as of the day and year first written above.
WELLS FARGO & COMPANY
By /s/ Rodney L. Jacobs
------------------------------
Vice Chairman
[CORPORATE SEAL] By /s/ Alan J. Pabst
------------------------------
Senior Vice President and
Treasurer
ATTEST:
/s/ Robert Singley
- -------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
[CORPORATE SEAL] By /s/ John R. Prendiville
------------------------------
Vice President
ATTEST:
- -------------------------
Assistant Vice President
<PAGE>
EXHIBIT 4(z)
TRUST AGREEMENT
OF
WELLS FARGO CAPITAL III
THIS TRUST AGREEMENT is made as of October 30, 1996 (this "Trust
Agreement"), by and among Wells Fargo & Company, a Delaware corporation, as
Depositor (the "Depositor"), and Mark A. Ferrucci, as trustee (the "Trustee").
The Depositor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "Wells Fargo Capital III"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------ -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. An amended and restated Trust Agreement or Declaration satisfactory to
each party to it and substantially in the form to be included as an exhibit to
the Registration Statement on Form S-3 (the "1993 Act Registration Statement")
referred to below, or in such other form as the parties thereto may approve,
will be entered into to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Trust Agreement or Declaration, the Trustee shall not have
any duty or obligation hereunder or with respect of the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery any licenses, consents or approvals required by
applicable law or otherwise. Notwithstanding the foregoing, the Trustee may
take all actions deemed proper as are necessary to effect the transactions
contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary prospectus or prospectus or supplement thereto relating to the
Preferred Securities required to
1.
<PAGE>
be filed pursuant to Rule 424 under the 1933 Act, and (c) a Registration
Statement on Form 8-A or other appropriate form (the "1934 Act Registration
Statement") (including all pre-effective and post-effective amendments thereto)
relating to the registration of the Preferred Securities of the Trust under
Section 12(b) of the Securities Exchange Act of 1934, as amended; (ii) to file
with the New York Stock Exchange or other exchange, and execute on behalf of the
Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the Preferred Securities to be listed on the New York Stock
Exchange or such other exchange; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Robert Singley, Alan J. Pabst and Paul D. Ardleigh as his or its, as the
case may be, true and lawful attorneys-in-fact and agent, acting singly or
collectively, with full power of substitution and resubstitution for the
Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of
2.
<PAGE>
Delaware or, if not a natural person, an entity which has its principal place of
business in the State of Delaware. Subject to the foregoing, the Depositor is
entitled to appoint or remove without cause any trustee of the Trust at any
time. Any trustee of the Trust may resign upon thirty days' prior notice to the
Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
WELLS FARGO & COMPANY,
as Depositor
By: /s/ Alan J. Pabst
------------------
Name: Alan J. Pabst
Title: Senior Vice President & Treasurer
MARK A. FERRUCCI, as Trustee
/s/ Mark A. Ferrucci
---------------------
3.
<PAGE>
EXHIBIT 4(bb)
FORM OF
WELLS FARGO CAPITAL __
AMENDED AND RESTATED TRUST AGREEMENT
among
WELLS FARGO & COMPANY, as Depositor,
THE FIRST NATIONAL BANK OF CHICAGO,
as Property Trustee,
FIRST CHICAGO DELAWARE INC.
as Delaware Trustee,
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
and
THE HOLDERS OF TRUST SECURITIES
Dated as of December __, 1996
<PAGE>
WELLS FARGO CAPITAL I
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- ------------------ ---------------
<S> <C>
((S)) 310 (a)(1)............................................... 8.7
(a)(2)............................................... 8.7
(a)(3)............................................... 8.9
(a)(4)............................................... 2.7(a)(ii)
(b).................................................. 8.8
((S)) 311 (a................................................... 8.13
(b).................................................. 8.13
((S)) 312 (a).................................................. 5.7
(b).................................................. 5.7
(c).................................................. 5.7
((S)) 313 (a).................................................. 8.14(a)
(a)(4)............................................... 8.14(b)
(b).................................................. 8.14(b)
(c).................................................. 10.8
(d).................................................. 8.14(c)
((S)) 314 (a).................................................. 8.15
(b).................................................. Not Applicable
(c)(1)............................................... 8.16
(c)(2)............................................... 8.16
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 1.1, 8.16
((S)) 315 (a).................................................. 8.1(a), 8.3(a)
(b).................................................. 8.2, 10.8
(c).................................................. 8.1(a)
(d).................................................. 8.1, 8.3
(e).................................................. Not Applicable
((S)) 316 (a).................................................. Not Applicable
(a)(1)(A)............................................ Not Applicable
(a)(1)(B)............................................ Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.14
(c).................................................. 6.7
((S)) 317 (a)(1)............................................... Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.9
((S)) 318 (a).................................................. 10.10
</TABLE>
- ------------
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I. Defined Terms......................................................... 1
Section 1.1. Definitions.................................................... 1
ARTICLE II. Continuation of the Trust............................................ 10
Section 2.1. Name........................................................... 10
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.... 10
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses 10
Section 2.4. Issuance of the Preferred Securities........................... 10
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debentures..................................................... 11
Section 2.6. Declaration of Trust........................................... 11
Section 2.7. Authorization to Enter into Certain Transactions............... 11
Section 2.8. Assets of Trust................................................ 14
Section 2.9. Title to Trust Property........................................ 14
ARTICLE III. Payment Account..................................................... 15
Section 3.1. Payment Account................................................ 15
ARTICLE IV. Distributions; Redemption............................................ 15
Section 4.1. Distributions.................................................. 15
Section 4.2. Redemption..................................................... 16
Section 4.3. Subordination of Common Securities............................. 17
Section 4.4. Payment Procedures............................................. 18
Section 4.5. Tax Returns and Reports........................................ 18
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.................... 19
Section 4.7. Reduction for Payments under Indenture......................... 19
ARTICLE V. Trust Securities Certificates......................................... 19
Section 5.1. Initial Ownership.............................................. 19
Section 5.2. The Trust Securities Certificates.............................. 19
Section 5.3. Execution and Delivery of Trust Securities Certificates........ 19
Section 5.4. Registration of Transfer and Exchange of
Preferred Securities Certificates.............................. 0
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates........................................ 20
Section 5.6. Persons Deemed Securityholders................................. 21
Section 5.7. Access to List of Securityholders' Names and
Addresses...................................................... 21
Section 5.8. Maintenance of Office or Agency for Transfers.................. 21
Section 5.9. Appointment of Paying Agent.................................... 21
Section 5.10. Ownership of Common Securities by Depositor.................... 22
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
Section 5.11. Book-Entry Preferred Securities Certificates;
Common Securities Certificate.................................. 22
Section 5.12. Notices to Clearing Agency..................................... 23
Section 5.13. Definitive Preferred Securities Certificates................... 23
Section 5.14. Rights of Securityholders...................................... 24
ARTICLE VI. Acts of Securityholders; Meetings; Voting............................. 25
Section 6.1. Limitations on Voting Rights................................... 25
Section 6.2. Notice of Meetings............................................. 26
Section 6.3. Meetings of Preferred Securityholders.......................... 26
Section 6.4. Voting Rights.................................................. 27
Section 6.5. Proxies, etc................................................... 27
Section 6.6. Securityholder Action by Written Consent....................... 27
Section 6.7. Record Date for Voting and Other Purposes...................... 27
Section 6.8. Acts of Securityholders........................................ 28
Section 6.9. Inspection of Records.......................................... 28
ARTICLE VII. Representations and Warranties....................................... 29
Section 7.1. Representations and Warranties of the Bank, the
Property Trustee and the Delaware Trustee...................... 29
Section 7.2. Representations and Warranties of Depositor.................... 30
ARTICLE VIII. The Trustees........................................................ 30
Section 8.1. Certain Duties and Responsibilities............................ 30
Section 8.2. Certain Notices................................................ 32
Section 8.3. Certain Rights of Property Trustee............................. 32
Section 8.4. Not Responsible for Recitals or Issuance of
Securities..................................................... 34
Section 8.5. May Hold Securities............................................ 34
Section 8.6. Compensation; Indemnity; Fees.................................. 34
Section 8.7. Corporate Property Trustee Required; Eligibility
of Trustees.................................................... 35
Section 8.8. Conflicting Interests.......................................... 36
Section 8.9. Co-Trustees and Separate Trustee............................... 36
Section 8.10. Resignation and Removal; Appointment of
Successor...................................................... 37
Section 8.11. Acceptance of Appointment by Successor......................... 38
Section 8.12. Merger, Conversion, Consolidation or Succession
to Business.................................................... 39
Section 8.13. Preferential Collection of Claims Against
Depositor or Trust............................................. 39
Section 8.14. Reports by Property Trustee.................................... 40
Section 8.15. Reports to the Property Trustee................................ 40
Section 8.16. Evidence of Compliance with Conditions
Precedent...................................................... 40
Section 8.17. Number of Trustees............................................. 41
Section 8.18. Delegation of Power............................................ 41
</TABLE>
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<TABLE>
<S> <C>
ARTICLE IX. Termination, Liquidation and Merger.................................... 41
Section 9.1. Termination Upon Expiration Date............................... 41
Section 9.2. Early Termination.............................................. 41
Section 9.3. Termination.................................................... 42
Section 9.4. Liquidation.................................................... 42
Section 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust...................................... 44
ARTICLE X. Miscellaneous Provisions................................................ 45
Section 10.1. Limitation of Rights of Securityholders........................ 45
Section 10.2. Amendment...................................................... 45
Section 10.3. Separability................................................... 46
Section 10.4. Governing Law.................................................. 46
Section 10.5. Payments Due on Non-Business Day............................... 46
Section 10.6. Successors..................................................... 46
Section 10.7. Headings....................................................... 47
Section 10.8. Reports, Notices and Demands................................... 47
Section 10.9. Agreement Not to Petition...................................... 47
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act............................................................ 48
Section 10.11. Acceptance of Terms of Trust Agreement,
Guarantee and Indenture........................................ 48
</TABLE>
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AMENDED AND RESTATED TRUST AGREEMENT, dated as of November __, 1996, among (i)
Wells Fargo & Company, a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) The First National Bank of Chicago, a national
banking association duly organized and existing under the laws of the United
States, as property trustee, (in such capacity, the "Property Trustee" and, in
its separate corporate capacity and not in its capacity as Property Trustee, the
"Bank"), (iii) First Chicago Delaware Inc., a corporation that maintains its
principal place of business in Delaware, as Delaware trustee (the "Delaware
Trustee"), (iv) Guy Rounsaville, Jr., an individual, Rodney L. Jacobs, an
individual, and Clyde W. Ostler, an individual, each of whose address is c/o
Wells Fargo & Company, 420 Montgomery Street, San Francisco, California 94163
(each an "Administrative Trustee" and collectively the "Administrative
Trustees") (the Property Trustee, the Delaware Trustee and the Administrative
Trustees referred to collectively as the "Trustees") and (v) the several
Holders, as hereinafter defined.
Witnesseth
Whereas, the Depositor and Mark A. Ferrucci have heretofore duly declared
and established a business trust pursuant to the Delaware Business Trust Act by
entering into that certain Trust Agreement, dated as of October 30, 1996 (the
"Original Trust Agreement"), and by the execution and filing with the Secretary
of State of the State of Delaware of a Certificate of Trust, filed on October
30, 1996, as amended by a Restated Certificate of Trust filed on December __,
1996, attached as Exhibit A; and
Whereas, the Depositor has previously removed Mark A. Ferrucci as Delaware
Trustee and appointed the Property Trustee, the Delaware Trustee and Guy
Rounsaville, Jr. as Trustees; and
Whereas, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures and
(iv) the appointment of the Administrative Trustees;
Now Therefore, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the sufficiency of which
is hereby acknowledged, each party, for the benefit of the other parties and for
the benefit of the Securityholders, hereby amends and restates the Original
Trust Agreement in its entirety and agrees as follows:
ARTICLE I
Defined Terms
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
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(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article" or a
"Section" refers to an Article or a Section, as the case may be, of this Trust
Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Trust Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 4.08 of the Indenture.
"Administrative Trustee" means a Person satisfying the eligibility
requirements set forth in Section 8.1(b) and initially means each of Guy
Rounsaville, Jr., Clyde W. Ostler and Rodney L. Jacobs, solely in such Person's
capacity as Administrative Trustee of the Trust formed and continued hereunder
and not in such Person's individual capacity, or such Administrative Trustee's
successor in interest in such capacity, or any successor trustee appointed as
herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a bankrupt
or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any
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<PAGE>
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law, or the consent by it to the filing of any such petition or to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
similar official) of such Person or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of corporate
action by such Person in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial interest in
the Preferred Securities Certificates, ownership and transfers of which shall be
made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means any day which is not a Saturday or Sunday and which in
the Cities of San Francisco, Chicago or New York is neither a legal holiday nor
a day on which banking institutions are authorized or required by law or
regulation to close or a day on which the corporate trust office of the Property
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means the First Time of Delivery, which date is also the date
of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
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<PAGE>
"Common Security" means an undivided beneficial interest in the assets of the
Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in Chicago,
Illinois, and (ii) when used with respect to the Debenture Trustee, the
principal office of the Debenture Trustee located in Chicago, Illinois.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Trustee" means The First National Bank of Chicago, and any
successor thereto under the Indenture.
"Debentures" means the aggregate principal amount of the Depositor's ___%
Junior Subordinated Deferrable Interest Debentures issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificate as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ((S)) 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the corporation identified as the "Delaware Trustee"
in the preamble to this Trust Agreement solely in its capacity as Delaware
Trustee of the Trust formed and continued hereunder and not in its corporate
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
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<PAGE>
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it becomes
due and payable, and continuation of such default for a period of 30 days; or
(c) default by the Trust in the payment of any Redemption Price of any Trust
Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of any
covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) above) and continuation of such default or breach for
a period of 60 days after there has been given, by registered or certified mail,
to the defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate liquidation preference of the Outstanding Preferred Securities a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property Trustee
and the failure by the Depositor to appoint a successor Property Trustee within
60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expense Agreement" means the Agreement as to Expenses and Liabilities between
the Depositor and the Trust, substantially in the form attached as Exhibit D, as
amended from time to time.
"Expiration Date" has the meaning specified in Section 9.1.
"First Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and The First National Bank of Chicago, as trustee, contemporaneously
with the execution and delivery of this Trust Agreement, for the benefit of the
holders of the Preferred Securities, as amended from time to time.
"Holder" means a Person in whose name a Trust Security or Trust Securities is
registered in the Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Delaware Business Trust Act;
provided, however, that in determining whether the Holders of the requisite
amount of Preferred Securities have voted on any matter provided for in this
Trust Agreement, then for the purpose of any such determination, so long as
Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Indenture" means the Indenture, dated as of November 27, 1996, between the
Depositor and the Debenture Trustee, as trustee, as amended or supplemented from
time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of trust,
adverse ownership interest, hypothecation, assignment, security interest or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever.
5
<PAGE>
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed to
Holders of Trust Securities in connection with a termination and liquidation of
the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board or any Vice Chairman of the Board, the President, any Vice Chairman or any
Vice President of the Depositor (whether or not designated by a number or a word
or words added before or after the title Vice President) and by the Treasurer or
an Assistant Treasurer or the Secretary or an Assistant Secretary of the
Depositor, and delivered to the appropriate Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Trust, the Property Trustee or the Depositor (including counsel who is
an employee of the Depositor), who is experienced in matters related to the
substance of the opinion.
"Original Trust Agreement" has the meaning specified in the recitals to this
Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
6
<PAGE>
(a) Trust Securities theretofore cancelled by the Securities Registrar or
delivered to the Securities Registrar for cancellation;
(b) Trust Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Property Trustee or any Paying
Agent for the Holders of such Trust Securities; provided that, if such Trust
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu of
which other Trust Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that such Trustee knows to be so owned shall
be so disregarded and (b) the foregoing shall not apply at any time when all of
the outstanding Preferred Securities are owned by the Depositor, one or more of
the Trustees and/or any such Affiliate. Preferred Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Administrative Trustees the pledgee's
right so to act with respect to such Preferred Securities and that the pledgee
is not the Depositor or any Affiliate of the Depositor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant to
Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Securityholders in accordance with
Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture, trust,
limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $25 and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership of
Preferred Securities, substantially in the form attached as Exhibit E.
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<PAGE>
"Property Trustee" means the commercial bank or trust company identified as
the "Property Trustee" in the preamble to this Trust Agreement solely in its
capacity as Property Trustee of the Trust heretofore formed and continued
hereunder and not in its corporate capacity, or its successor in interest in
such capacity, or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the Liquidation
Amount of such Trust Security, plus accumulated and unpaid Distributions to the
Redemption Date, plus the related amount of the premium, if any, paid by the
Depositor upon the concurrent redemption of a Like Amount of Debentures,
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
"Second Time of Delivery" has the meaning specified in the Underwriting
Agreement.
"Securities Register" and "Securities Registrar" have the respective meanings
specified in Section 5.4.
"Securityholder" means a Person in whose name a Trust Security or Trust
Securities is registered in the Securities Register; any such Person shall be
deemed to be a beneficial owner within the meaning of the Delaware Business
Trust Act; provided, however, that in determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Trust Agreement, then for the purpose of any such determination, so long
as Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Time of Delivery" means, collectively, the First Time of Delivery and Second
Time of Delivery (if there is a Second Time of Delivery).
"Trust" means the Delaware business trust created under the Original Trust
Agreement and continued hereby and identified on the cover page to this Trust
Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the same
may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto, and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
8
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"Trust Property" means (a) the Debentures, (b) the rights of the Property
Trustee under the Guarantee, (c) any cash on deposit in, or owing to, the
Payment Account and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
"Trust Security" means any one of the Common Securities or the Preferred
Securities. The Trust Securities represent undivided beneficial interests in
the Trust Property.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee and
the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________ __, 1996, among the Trust, the Depositor and the underwriters named
therein incorporating the Standard Terms Agreement (Quarterly Income Preferred
Securities) dated _________ __, 1996.
ARTICLE II.
Continuation of the Trust
Section 2.1. Name.
The Trust continued hereby shall be known as "Wells Fargo Capital I," as such
name may be modified from time to time by the Administrative Trustees following
written notice to the Securityholders and the other Trustees, in which name the
Trustees may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and sue and be sued.
Section 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is First Chicago
Delaware Inc., 300 King Street, Wilmington, Delaware 19801, Attention: Michael
J. Majchrzak, or such other address in the State of Delaware as the Delaware
Trustee may designate by written notice to the Securityholders and the
Depositor. The principal executive office of the Trust is c/o Wells Fargo &
Company, 420 Montgomery Street, San Francisco, California 94163.
Section 2.3. Initial Contribution of Trust Property; Organizational Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
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Section 2.4. Issuance of the Preferred Securities.
The Depositor, on behalf of the Trust and pursuant to the Original Trust
Agreement, executed and delivered the Underwriting Agreement. Contemporaneously
with the execution and delivery of this Trust Agreement, an Administrative
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Underwriters named in the Underwriting Agreement Preferred
Securities Certificates, registered in the name of the nominee of the initial
Clearing Agency, in an aggregate amount of ___________ Preferred Securities
having an aggregate Liquidation Amount of $___________, against receipt of such
aggregate purchase price of such Preferred Securities of $___________, which
amount the Administrative Trustee shall promptly deliver to the Property
Trustee. If there is a Second Time of Delivery, an Administrative Trustee, on
behalf of the Trust, shall execute in accordance with Section 5.2 and deliver to
the Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, registered in the name of the nominee of the initial Clearing
Agency, in an aggregate amount of up to __________ Preferred Securities having
an aggregate Liquidation Amount of up to $___________, against receipt of the
aggregate purchase price of such Preferred Securities equal to the Liquidation
Amount thereof, which amount such Administrative Trustee shall promptly deliver
to the Property Trustee.
Section 2.5. Issuance of the Common Securities; Subscription and Purchase of
Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of _______
Common Securities having an aggregate Liquidation Amount of $____________
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$_________ (such sum being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the second sentence of Section 2.4 and (ii) the first
sentence of this Section 2.5). If there is a Second Time of Delivery, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of up to _______
Common Securities having an aggregate Liquidation Amount of up to $__________
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount of up to
$___________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
amount received from one of the Administrative Trustees pursuant to the last
sentence of Section 2.4 (being the sum of the amounts delivered to the Property
Trustee pursuant to (i) the third sentence of Section 2.4 and (ii) the third
sentence of this Section 2.5.
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Section 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures,
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust, to
have all the rights, powers and duties to the extent set forth herein, and the
Trustees hereby accept such appointment. The Property Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the benefit of the Trust and the Securityholders. The
Administrative Trustees shall have all rights, powers and duties set forth
herein and in accordance with applicable law with respect to accomplishing the
purposes of the Trust. The Delaware Trustee shall not be entitled to exercise
any powers, nor shall the Delaware Trustee have any of the duties and
responsibilities, of the Property Trustee or the Administrative Trustees set
forth herein. The Delaware Trustee shall be one of the Trustees of the Trust for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Delaware Business Trust Act.
Section 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in paragraph
(b) of this Section, and in accordance with the following provisions (i) and
(ii), the Trustees shall have the authority to enter into all transactions and
agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
Trust Agreement, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have the power
and authority to act on behalf of the Trust with respect to the following
matters:
(A) the issuance and sale of the Trust Securities, including execution of
any agreements, certificates evidencing Trust Securities or other documents
necessary with respect to such issuance and sale;
(B) to cause the Trust to enter into, and to execute, deliver and perform
on behalf of the Trust, the Expense Agreement and the Certificate Depository
Agreement and such other agreements as may be necessary or desirable in
connection with the purposes and function of the Trust;
(C) assisting in the registration of the Preferred Securities under the
Securities Act of 1933, as amended, and under state securities or blue sky laws,
and the qualification of this Trust Agreement as a trust indenture under the
Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon such
securities exchange or exchanges as shall be determined by the Depositor and the
registration of the Preferred Securities under the Exchange Act, and the
preparation and filing of all periodic and other reports and other documents
pursuant to the foregoing;
(E) the sending of notices (other than notices of default) and other
information regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
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(F) the appointment of a Paying Agent and Securities Registrar in
accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in accordance with this
Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) unless otherwise determined by the Depositor, the Property Trustee or
the Administrative Trustees, or as otherwise required by the Delaware Business
Trust Act or the Trust Indenture Act, to execute on behalf of the Trust (either
acting alone or together with any or all of the Administrative Trustees) any
documents that the Administrative Trustees have the power to execute pursuant to
this Trust Agreement; and
(J) the taking of any action incidental to the foregoing as the Trustees
may from time to time determine is necessary or advisable to give effect to the
terms of this Trust Agreement for the benefit of the Securityholders (without
consideration of the effect of any such action on any particular
Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the power, duty
and authority to act on behalf of the Trust with respect to the following
matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other payments made in
respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges of a holder of
the Debentures;
(F) the sending of notices of default and other information regarding the
Trust Securities and the Debentures to the Securityholders in accordance with
this Trust Agreement;
(G) the distribution of the Trust Property in accordance with the terms of
this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the winding up of the
affairs of and liquidation of the Trust and the preparation, execution and
filing of the certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default (other than under paragraph (b), (c), (d) or
(e) of the definition of such term if such Event of Default is by or with
respect to the Property Trustee) the taking of any action incidental to the
foregoing as the Property Trustee may from time to time determine is necessary
or advisable to give effect to the terms of this Trust Agreement and
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protect and conserve the Trust Property for the benefit of the Securityholders
(without consideration of the effect of any such action on any particular
Securityholder); and
(J) except as otherwise provided in this Section 2.7(a)(ii) or as required
by the Trust Indenture Act, the Property Trustee shall have none of the duties,
liabilities, powers or the authority of the Administrative Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would cause the
Trust to fail or cease to qualify as a "grantor trust" for United States Federal
income tax purposes, (iv) incur any indebtedness for borrowed money or issue any
other debt or (v) take or consent to any action that would result in the
placement of a Lien on any of the Trust Property. The Administrative Trustees
shall defend all claims and demands of all Persons at any time claiming any Lien
on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.
(c) In connection with the issuance and sale of the Preferred Securities, the
Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission and the
execution on behalf of the Trust of a registration statement on the appropriate
form in relation to the Preferred Securities, including any amendments thereto;
(ii) the determination of the states in which to take appropriate action to
qualify or register for sale all or part of the Preferred Securities and the
determination of any and all such acts, other than actions which must be taken
by or on behalf of the Trust, and the advice to the Trustees of actions they
must take on behalf of the Trust, and the preparation for execution and filing
of any documents to be executed and filed by the Trust or on behalf of the
Trust, as the Depositor deems necessary or advisable in order to comply with the
applicable laws of any such States;
(iii) the preparation for filing by the Trust and execution on behalf of the
Trust of an application to the New York Stock Exchange or any other national
stock exchange or the Nasdaq National Market for listing upon notice of issuance
of any Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and the
execution on behalf of the Trust of a registration statement on Form 8-A
relating to the registration of the Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery of, the
Underwriting Agreement providing for the sale of the Preferred Securities; and
(vi) the taking of any other actions necessary or desirable to carry out any
of the foregoing activities.
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(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act or fail to be classified
as a grantor trust for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and the Administrative Trustees determines in their discretion to
be necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the Holders of the
Preferred Securities.
Section 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
Section 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the Property
Trustee (in its capacity as such) and shall be held and administered by the
Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
Payment Account
Section 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish the
Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of making deposits in and withdrawals from the
Payment Account in accordance with this Trust Agreement. All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit of
the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly upon
receipt, all payments of principal of or interest on, and any other payments or
proceeds with respect to, the Debentures. Amounts held in the Payment Account
shall not be invested by the Property Trustee pending distribution thereof.
ARTICLE IV.
Distributions; Redemption
Section 4.1. Distributions.
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(a) Distributions (including Distributions of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Debentures. Distributions on the Trust Securities shall be cumulative, and will
accumulate whether or not there are funds of the Trust available for the payment
of Distributions. Distributions shall accumulate from ________ __, 1996, and,
except in the event (and to the extent) that the Depositor exercises its right
to defer the payment of interest on the Debentures pursuant to the Indenture,
shall be payable quarterly on January 1, April 1, July 1 and October 1 of each
year, commencing on _________ __, 199_. If any date on which a Distribution is
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distribution shall be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of any such
delay), in each case with the same force and effect as if made on such date
(each date on which Distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(b) Assuming payments of interest on the Debentures are made when due (and
before giving effect to any Additional Amounts, if applicable), Distributions
on the Trust Securities shall be payable at a rate of ____% per annum of the
Liquidation Amount of the Trust Securities. The amount of Distributions payable
for any full period shall be computed on the basis of a 360-day year of twelve
30-day months. The amount of Distributions for any partial period shall be
computed on the basis of the number of days elapsed in a 360-day year of twelve
30-day months. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the Property
Trustee from the Payment Account and shall be payable on each Distribution Date
only to the extent that the Trust has funds then on hand and available in the
Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a Distribution Date
shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities on the relevant record date, which shall be
one Business Day prior to such Distribution Date; provided, however, that in the
event that the Preferred Securities do not remain in book-entry-only form, the
relevant record date shall be the date 15 days prior to the relevant
Distribution Date.
Section 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-class
mail, postage prepaid, mailed not less than 15 nor more than 60 days prior to
the Redemption Date to each Holder of Trust Securities to be redeemed, at such
Holder's address appearing in the Security Register. All notices of redemption
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the CUSIP number;
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(iv) if less than all the Outstanding Trust Securities are to be redeemed, the
identification and the total Liquidation Amount of the particular Trust
Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become due and
payable upon each such Trust Security to be redeemed and that Distributions
thereon will cease to accumulate on and after said date.
(c) The Trust Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the proceeds from the contemporaneous redemption of
Debentures. Redemptions of the Trust Securities shall be made and the Redemption
Price shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of any
Preferred Securities, then, by 12:00 noon, San Francisco time, on the Redemption
Date, subject to Section 4.2(c), the Property Trustee will, so long as the
Preferred Securities are in book-entry-only form, irrevocably deposit with the
Clearing Agency for the Preferred Securities funds sufficient to pay the
applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the Holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Register
for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price and any
Distribution payable on or prior to the Redemption Date, but without interest,
and such Trust Securities will cease to be outstanding. In the event that any
date on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay), except that, if such Business Day falls in the
next calendar year, such payment will be made on the immediately preceding
Business Day, in each case, with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Trust or by the Depositor pursuant to the Guarantee, Distributions
on such Trust Securities will continue to accrue, at the then applicable rate,
from the Redemption Date originally established by the Trust for such Trust
Securities to the date such Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the Redemption Price.
(e) Payment of the Redemption Price on the Trust Securities shall be made to
the recordholders thereof as they appear on the Securities Register for the
Trust Securities on the relevant Redemption Date.
(f) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to
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be redeemed shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and the Preferred Securities. The
particular Preferred Securities to be redeemed shall be selected on a pro rata
basis (based upon Liquidation Amounts) not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by such method (including,
without limitation, by lot) as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $25.
The Property Trustee shall promptly notify the Security Registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of this Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if applicable) on,
and the Redemption Price of, the Trust Securities, as applicable, shall be made,
subject to Section 4.2(f), pro rata among the Common Securities and the
Preferred Securities based on the Liquidation Amount of the Trust Securities;
provided, however, that if on any Distribution Date or Redemption Date any Event
of Default resulting from a Debenture Event of Default shall have occurred and
be continuing, no payment of any Distribution (including Additional Amounts, if
applicable) on, or Redemption Price of, any Common Security, and no other
payment on account of the redemption, liquidation or other acquisition of Common
Securities, shall be made unless payment in full in cash of all accumulated and
unpaid Distributions (including Additional Amounts, if applicable) on all
Outstanding Preferred Securities for all Distribution periods terminating on or
prior thereto, or in the case of payment of the Redemption Price the full amount
of such Redemption Price on all Outstanding Preferred Securities, shall have
been made or provided for, and all funds immediately available to the Property
Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Amounts, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default resulting from any
Debenture Event of Default, the Holder of Common Securities will be deemed to
have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
Section 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately
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available funds, which shall credit the relevant Persons' accounts at such
Clearing Agency on the applicable Distribution Dates. Payments in respect of the
Common Securities shall be made in such manner as shall be mutually agreed
between the Property Trustee and the Common Securityholder.
Section 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States Federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Trustees shall comply with United States
Federal withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums and the written direction
of any of the Administrative Trustees, the Property Trustee shall promptly pay,
solely out of monies on deposit pursuant to this Trust Agreement, any taxes,
duties or governmental charges of whatsoever nature (other than withholding
taxes) imposed on the Trust by the United States or any other taxing authority.
Section 4.7. Reduction for Payments under Indenture or Pursuant to Direct
Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Preferred Securities) has directly received pursuant to
Section 6.05 of the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V.
Trust Securities Certificates
Section 5.1. Initial Ownership.
Upon the formation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
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Section 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $25 Liquidation Amount and integral multiples of $25 in excess
thereof, and the Common Securities Certificates shall be issued in denominations
of $25 Liquidation Amount and integral multiples thereof. The Trust Securities
Certificates shall be executed on behalf of the Trust by manual signature of at
least one Administrative Trustee. Trust Securities Certificates bearing the
manual signatures of individuals who were, at the time when such signatures
shall have been affixed, authorized to sign on behalf of the Trust, shall be
validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
Section 5.3. Execution and Delivery of Trust Securities Certificates.
At each Time of Delivery, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.4 and 2.5, to be executed on behalf of the Trust and delivered to or
upon the written order of the Depositor, signed by its Chairman of the Board,
any Vice Chairman of the Board, its President, any Vice President, its Treasurer
or any Assistant Treasurer or its Controller, without further corporate action
by the Depositor, in authorized denominations.
Section 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar. The Securities Registrar shall not be required to
register the transfer or exchange of any Preferred Securities that have been
called for redemption.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees. At the option of a Holder, Preferred Securities Certificates may be
exchanged for other Preferred Securities Certificates in authorized
denominations of the same class and of a like aggregate Liquidation Amount upon
surrender of the Preferred Securities Certificates to be exchanged at the office
or agency maintained pursuant to Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an
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Administrative Trustee and the Securities Registrar duly executed by the Holder
or his attorney duly authorized in writing. Each Preferred Securities
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by an Administrative Trustee or the
Securities Registrar in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the Trust Property, as if originally issued, whether or
not the lost, stolen or destroyed Trust Securities Certificate shall be found at
any time.
Section 5.6. Persons Deemed Securityholders.
The Trustees or the Securities Registrar shall treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
Section 5.7. Access to List of Securityholders' Names and Addresses.
At any time when the Property Trustee is not also acting as the Securities
Registrar, the Administrative Trustees shall furnish or cause to be furnished to
the Property Trustee (a) semi-annually not later than five days after January 15
and July 15 in each year, and (b) promptly after receipt by an Administrative
Trustee of a request therefor from the Property Trustee in writing, a list, in
such form as the Property Trustee may reasonably require, of the names and
addresses of the Securityholders as of the most recent record date. The rights
of Securityholders to communicate with other Securityholders with respect to
their rights under this Trust Agreement or under the Trust Securities, and the
corresponding obligations and rights of the Property Trustee, shall be as
provided in the Trust Indenture Act. Each Holder, by receiving and holding a
Trust Securities Certificate, and each Owner shall be deemed to have agreed not
to hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the
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disclosure of its name and address, regardless of the source from which such
information was derived.
Section 5.8. Maintenance of Office or Agency for Transfers.
The Administrative Trustees shall maintain an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Administrative Trustees initially designate The First National Bank of Chicago,
One First National Plaza, Mail Suite 0126, Chicago, IL 60670-0126, Attn:
Corporate Trust Services, as the principal corporate trust office for such
purposes. The Administrative Trustees shall give prompt written notice to the
Depositor and to the Securityholders of any change in the location of the
Securities Register or any such office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying Agent
shall initially be the Bank, and any co-paying agent chosen by the Bank, and
acceptable to the Administrative Trustees and the Depositor. Any Person acting
as Paying Agent shall be permitted to resign as Paying Agent upon 30 days'
written notice to the Administrative Trustees, the Property Trustee and the
Depositor. In the event that the Bank shall no longer be the Paying Agent or a
successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is acceptable to the
Property Trustee and the Depositor to act as Paying Agent (which shall be a bank
or trust company). The Administrative Trustees shall cause such successor Paying
Agent or any additional Paying Agent appointed by the Administrative Trustees to
execute and deliver to the Trustees an instrument in which such successor Paying
Agent or additional Paying Agent shall agree with the Trustees that as Paying
Agent, such successor Paying Agent or additional Paying Agent will hold all
sums, if any, held by it for payment to the Securityholders in trust for the
benefit of the Securityholders entitled thereto until such sums shall be paid to
such Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Agreement to the Paying Agent shall include any co-paying agent unless
the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At each Time of Delivery, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than a transfer in connection with a consolidation or merger of
the Depositor into another Person, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Article Eleven of the Indenture, any attempted transfer of
the
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Common Securities shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Trust Agreement relating to the
Book-Entry Preferred Securities Certificates (including the payment of the
Liquidation Amount of and Distributions on the Preferred Securities evidenced by
Book-Entry Preferred Securities and the giving of instructions or directions to
Owners of Preferred Securities evidenced by Book-Entry Preferred Securities) as
the sole Holder of Preferred Securities evidenced by Book-Entry Preferred
Securities and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict with any
other provisions of this Trust Agreement, the provisions of this Section 5.11
shall control; and
(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive Preferred
Securities Certificates are issued pursuant to Section 5.13, the initial
Clearing Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments on the Preferred Securities to
such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common Securities
shall be issued to the Depositor in the form of a definitive Common Securities
Certificate.
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is required
under this Trust Agreement, unless and until Definitive Preferred Securities
Certificates shall have been issued to Owners pursuant to Section 5.13, the
Trustees shall give all such notices and communications specified herein to be
given to Owners to the Clearing Agency, and shall have no obligations to the
Owners.
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Section 5.13. Issuance of Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing Agency
is no longer willing or able to properly discharge its responsibilities with
respect to the Preferred Securities Certificates, and the Depositor is unable to
locate a qualified successor, (b) the Depositor at its option advises the
Trustees in writing that it elects to terminate the book-entry system through
the Clearing Agency or (c) after the occurrence of a Debenture Event of Default,
Owners of Preferred Securities Certificates representing beneficial interests
aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustee shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the typewritten Preferred
Securities Certificate or Certificates representing the Book Entry Preferred
Securities Certificates by the Clearing Agency, accompanied by registration
instructions, the Administrative Trustees, or any one of them, shall execute the
Definitive Preferred Securities Certificates in accordance with the instructions
of the Clearing Agency. Neither the Securities Registrar nor the Trustees shall
be liable for any delay in delivery of such instructions and may conclusively
rely on, and shall be protected in relying on, such instructions. Upon the
issuance of Definitive Preferred Securities Certificates, the Trustees shall
recognize the Holders of the Definitive Preferred Securities Certificates as
Securityholders. The Definitive Preferred Securities Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Administrative Trustees, as evidenced by the
execution thereof by the Administrative Trustees or any one of them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust Securities
shall have no preemptive or similar rights. When issued and delivered to
Securityholders against payment of the purchase price therefor, the Trust
Securities will be fully paid and nonassessable undivided beneficial interests
in the Trust Property. The Holders of the Trust Securities, in their capacities
as such, shall 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.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee; and upon any such declaration such principal amount of
and the accrued interest on all of the Debentures shall become immediately due
and payable, provided that the
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payment of principal and interest on such Debentures shall remain subordinated
to the extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as provided in the
Indenture, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Depositor has paid or deposited with the Debenture Trustee a sum
sufficient to pay
(A) all overdue installments of interest (including any Additional Interest
as defined in the Indenture) on all of the Debentures,
(B) the principal of (and premium, if any, on) any Debentures which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Debentures, and
(C) all sums paid or advanced by the Debenture Trustee under the Indenture
and the reasonable compensation, expenses, disbursements and advances of the
Debenture Trustee and the Property Trustee, their agents and counsel; and
(ii) all Debenture Events of Default, other than the non-payment of the
principal of the Debentures which has become due solely by such acceleration,
have been cured or waived as provided in [Article Six] of the Indenture.
The holders of a majority in aggregate liquidation preference of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default under the Indenture, except a default in the payment of
principal or interest (unless such default has been cured and a sum sufficient
to pay all matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Debenture Trustee) or a default in
respect of a covenant or provision which under the Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso
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to the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the fullest
extent permitted by law and subject to the terms of this Trust Agreement and the
Indenture, upon a Debenture Event of Default specified in Section 6.01(a) or
6.01(b) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Article Six of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Debentures.
ARTICLE VI.
Acts of Securityholders; Meetings; Voting
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2 and
in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or executing any
trust or power conferred on the Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Preferred Securities. The Trustees shall
not revoke any action previously authorized or approved by a vote of the Holders
of Preferred Securities, except by a subsequent vote of the Holders of Preferred
Securities. The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of default received from the Debenture Trustee with
respect to the Debentures. In addition to obtaining the foregoing approvals of
the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that such action shall not
cause the Trust to fail to be classified as a grantor trust for United States
Federal income tax purposes.
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(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made if, as a result of such amendment, it would cause the Trust to fail to be
classified as a grantor trust for United States Federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be so
considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the Preferred
Securityholders of record of 25% of the Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of Preferred Securityholders to
vote on any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of record present, in person or by proxy, holding more than a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $25 of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.
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Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
Pursuant to a resolution of the Property Trustee, proxies may be solicited in
the name of the Property Trustee or one or more officers of the Property
Trustee. Only Securityholders of record shall be entitled to vote. When Trust
Securities are held jointly by several Persons, any one of them may vote at any
meeting in person or by proxy in respect of such Trust Securities, but if more
than one of them shall be present at such meeting in person or by proxy, and
such joint owners or their proxies so present disagree as to any vote to be
cast, such vote shall not be received in respect of such Trust Securities. A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger. No proxy shall be valid more
than three years after its date of execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any Distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees may from time to time fix a date, not
more than 90 days prior to the date of any meeting of Securityholders or the
payment of a Distribution or other action, as the case may be, as a record date
for the determination of the identity of the Securityholders of record for such
purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to an Administrative Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
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The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
ARTICLE VII.
Representations and Warranties
Section 7.1. Representations and Warranties of the Bank, the Property Trustee
and the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on behalf of and
as to itself, hereby represents and warrants for the benefit of the Depositor
and the Securityholders that:
(a) the Property Trustee is a national banking association duly organized,
validly existing and in good standing under the laws of the United States;
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(b) the Property Trustee has full corporate power, authority and legal right
to execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a corporation duly organized, validly existing and
in good standing with its principal place of business in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal right
to execute, deliver and perform its obligations under this Trust Agreement and
has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and delivered by
the Property Trustee and the Delaware Trustee and constitutes the valid and
legally binding agreement of each of the Property Trustee and the Delaware
Trustee enforceable against each of them in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement has been
duly authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and does not require any approval of
stockholders of the Property Trustee and the Delaware Trustee and such
execution, delivery and performance will not (i) violate the Charter or By-laws
of the Property Trustee or the Delaware Trustee, (ii) violate any provision of,
or constitute, with or without notice or lapse of time, a default under, or
result in the creation or imposition of, any Lien on any properties included in
the Trust Property pursuant to the provisions of, any indenture, mortgage,
credit agreement, license or other agreement or instrument to which the Property
Trustee or the Delaware Trustee is a party or by which it is bound, or (iii)
violate any law, governmental rule or regulation of the United States or the
State of Delaware, as the case may be, governing the banking, trust or general
powers of the Property Trustee or the Delaware Trustee (as appropriate in
context) or any order, judgment or decree applicable to the Property Trustee or
the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property Trustee
or the Delaware Trustee of this Trust Agreement nor the consummation of any of
the transactions by the Property Trustee or the Delaware Trustee (as appropriate
in context) contemplated herein or therein requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other action
with respect to any governmental authority or agency under any existing Federal
law governing the banking, trust or general powers of the Property Trustee or
the Delaware Trustee, as the case may be, under the laws of the United States or
the State of Delaware;
(h) there are no proceedings pending or, to the best of each of the Property
Trustee's and the Delaware Trustee's knowledge, threatened against or affecting
the Property Trustee or the Delaware Trustee in any court or before any
governmental authority, agency or arbitration board or tribunal which,
individually or in the aggregate, would materially and adversely affect the
Trust or would question the right, power and authority of the Property Trustee
or the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
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Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery on
behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
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ARTICLE VIII.
The Trustees
Section 8.1. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
Section 8.2. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it. Whether or not therein expressly so provided, every provision of this Trust
Agreement relating to the conduct or affecting the liability of or affording
protection to the Trustees shall be subject to the provisions of this Section.
Nothing in this Trust Agreement shall be construed to release an Administrative
Trustee from liability for his own gross negligence or willful misconduct. To
the extent that, at law or in equity, an Administrative Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Administrative Trustee shall not be liable to the
Trust or to any Securityholder for such Trustee's good faith reliance on the
provisions of this Trust Agreement. The provisions of this Trust Agreement, to
the extent that they restrict the duties and liabilities of the Administrative
Trustees otherwise existing at law or in equity, are agreed by the Depositor and
the Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in respect
of the Trust Securities shall be made only from the revenue and proceeds from
the Trust Property and only
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to the extent that there shall be sufficient revenue or proceeds from the Trust
Property to enable the Property Trustee or a Paying Agent to make payments in
accordance with the terms hereof. Each Securityholder, by its acceptance of a
Trust Security, agrees that it will look solely to the revenue and proceeds from
the Trust Property to the extent legally available for distribution to it as
herein provided and that the Trustees are not personally liable to it for any
amount distributable in respect of any Trust Security or for any other liability
in respect of any Trust Security. This Section 8.2(b) does not limit the
liability of the Trustees expressly set forth elsewhere in this Trust Agreement
or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve the
Property Trustee from liability for its own negligent action, negligent failure
to act or willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of judgment made
in good faith by an authorized officer of the Property Trustee, unless it shall
be proved that the Property Trustee was negligent in ascertaining the pertinent
facts;
(ii) the Property Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in Liquidation Amount of
the Trust Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the custody, safe
keeping and physical preservation of the Debentures and the Payment Account
shall be to deal with such property of the Trust in a similar manner as the
Property Trustee deals with similar property for its own account, subject to the
protections and limitations on liability afforded to the Property Trustee under
this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any money
received by it except as it may otherwise agree with the Depositor; and money
held by the Property Trustee need not be segregated from other funds held by it
except in relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.1 and except to the extent otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their respective
duties under this Trust Agreement, nor shall the Property Trustee be liable for
the default or misconduct of the Administrative Trustees or the Depositor.
Section 8.3. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such Event of
Default to the Securityholders, the Administrative Trustees and the Depositor,
unless such Event of Default shall have been cured or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative
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Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
Section 8.4. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.2:
(a) the Property Trustee may rely and shall be protected in acting or
refraining from acting in good faith upon any resolution, Opinion of Counsel,
certificate, written representation of a Holder or transferee, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust Agreement the Property
Trustee is required to decide between alternative courses of action or (ii) in
construing any of the provisions of this Trust Agreement the Property Trustee
finds the same ambiguous or inconsistent with any other provisions contained
herein or (iii) the Property Trustee is unsure of the application of any
provision of this Trust Agreement, then, except as to any matter as to which the
Preferred Securityholders are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Depositor
requesting written instructions of the Depositor as to the course of action to
be taken and the Property Trustee shall take such action, or refrain from taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Depositor; provided, however, that if the
Property Trustee does not receive such instructions of the Depositor within ten
Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith, negligence or willful misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the Property
Trustee shall deem it desirable that a matter be established before undertaking,
suffering or omitting any action hereunder, the Property Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of bad faith on
its part, request and rely upon an Officers' Certificate which, upon receipt of
such request, shall be promptly delivered by the Depositor or the Administrative
Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
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such advice; the Property Trustee shall have the right at any time to seek
instructions concerning the administration of this Trust Agreement from any
court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee reasonable
security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, bond, debenture,
note or other evidence of indebtedness or other paper or document, unless
requested in writing to do so by one or more Securityholders, but the Property
Trustee may make such further inquiry or investigation into such facts or
matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through its agents or
attorneys, provided that the Property Trustee shall be responsible for its own
negligence or recklessness with respect to selection of any agent or attorney
appointed by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be protected in acting in accordance with such instructions; and
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement.
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
Section 8.5. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates shall
be taken as the statements of the Trust, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Depositor of the proceeds of the Debentures.
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Section 8.6. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its individual
or any other capacity, may become the owner or pledgee of Trust Securities and,
subject to Sections 8.8 and 8.13 and except as provided in the definition of the
term "Outstanding" in Article I, may otherwise deal with the Trust with the same
rights it would have if it were not a Trustee or such other agent.
Section 8.7. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation for all
services rendered by them hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustees
upon request for all reasonable expenses, disbursements and advances incurred or
made by the Trustees in accordance with any provision of this Trust Agreement
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify and hold
harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any Trustee, and
(iv) any employee or agent of the Trust or its Affiliates, (referred to herein
as an "Indemnified Person") from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation or termination of the
Trust or any act or omission performed or omitted by such Indemnified Person in
good faith on behalf of the Trust and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Trust Agreement, except that no Indemnified Person
shall be entitled to be indemnified in respect of any loss, damage or claim
incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(d) to the fullest extent permitted by applicable law, to advance expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Depositor of (i) a written affirmation by or on behalf of the Indemnified
Person of its or his good faith belief that it or he has met the standard of
conduct set forth in this Section 8.7 and (ii) an undertaking by or on behalf of
the Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in the
preceding subsection.
The provisions of this Section 8.7 shall survive the termination of this Trust
Agreement and the resignation or removal of any Trustee.
No Trustee may claim any lien or charge on any Trust Property as a result of
any amount due pursuant to this Section 8.7.
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The Depositor and any Trustee (in the case of the Property Trustee, subject to
Section 8.8 hereof) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Property Trustee shall either eliminate
such interest or resign, to the extent and in the manner provided by, and
subject to the provisions of, the Trust Indenture Act and this Trust Agreement.
Section 8.9. Co-Trustees and Separate Trustee.
Unless an Event of Default shall have occurred and be continuing, at any time
or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property may
at the time be located, the Depositor and the Administrative Trustees, by agreed
action of the majority of such Trustees, shall have power to appoint, and upon
the written request of the Administrative Trustees, the Depositor shall for such
purpose join with the Administrative Trustees in the execution, delivery, and
performance of all instruments and agreements necessary or proper to appoint,
one or more Persons approved by the Property Trustee either to act as co-
trustee, jointly with the Property Trustee, of all or any part of such Trust
Property, or to the extent required by law to act as separate trustee of any
such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such Person or Persons in the capacity
aforesaid, any property, title, right or power deemed necessary or desirable,
subject to the other provisions of this Section. If the Depositor does not join
in such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee alone shall have power to make such appointment. Any co-trustee
or separate trustee appointed pursuant to this Section shall either be (i) a
natural person who is at least 21 years of age and a resident of the United
States or (ii) a legal entity with its principal place of business in the United
States that shall act through one or more persons authorized to bind such
entity.
Should any written instrument from the Depositor be required by any co-trustee
or separate trustee so appointed for more fully confirming to such co-trustee or
separate trustee such property, title, right, or power, any and all such
instruments shall, on request, be executed, acknowledged and delivered by the
Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by law,
but to such extent only, be appointed subject to the following terms, namely:
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(a) The Trust Securities shall be executed and delivered and all rights,
powers, duties, and obligations hereunder in respect of the custody of
securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder, shall be exercised,
solely by such Trustees and not by such co-trustee or separate trustee.
(b) The rights, powers, duties, and obligations hereby conferred or imposed
upon the Property Trustee in respect of any property covered by such appointment
shall be conferred or imposed upon and exercised or performed by the Property
Trustee or by the Property Trustee and such co-trustee or separate trustee
jointly, as shall be provided in the instrument appointing such co-trustee or
separate trustee, except to the extent that under any law of any jurisdiction in
which any particular act is to be performed, the Property Trustee shall be
incompetent or unqualified to perform such act, in which event such rights,
powers, duties and obligations shall be exercised and performed by such co-
trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in writing executed by
it, with the written concurrence of the Depositor, may accept the resignation of
or remove any co-trustee or separate trustee appointed under this Section, and,
in case a Debenture Event of Default has occurred and is continuing, the
Property Trustee shall have power to accept the resignation of, or remove, any
such co-trustee or separate trustee without the concurrence of the Depositor.
Upon the written request of the Property Trustee, the Depositor shall join with
the Property Trustee in the execution, delivery and performance of all
instruments and agreements necessary or proper to effectuate such resignation or
removal. A successor to any co-trustee or separate trustee so resigned or
removed may be appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally liable by
reason of any act or omission of the Property Trustee or any other trustee
hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a co-
trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be deemed to
have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee may
resign at any time by giving written notice thereof to the Securityholders. If
the instrument of acceptance by the successor Trustee required by Section 8.11
shall not have been delivered to the Relevant Trustee within 30 days after the
giving of such notice of resignation, the Relevant Trustee may petition, at the
expense of the Trust, any court of competent jurisdiction for the appointment of
a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be continuing, any
Trustee may be removed at any time by Act of the Common Securityholder. If a
Debenture Event of Default shall have occurred and be continuing, the Property
Trustee or the Delaware Trustee, or both of
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them, may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting as
Trustee, or if a vacancy shall occur in the office of any Trustee for any cause,
at a time when no Debenture Event of Default shall have occurred and be
continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees, and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Securityholders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee, shall
promptly appoint a successor Relevant Trustee or Trustees, and such successor
Trustee shall comply with the applicable requirements of Section 8.11. If an
Administrative Trustee shall resign, be removed or become incapable of acting as
Administrative Trustee, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Common Securityholder by Act of the Common
Securityholder delivered to the Administrative Trustee shall promptly appoint a
successor Administrative Trustee or Administrative Trustees and such successor
Administrative Trustee or Trustees shall comply with the applicable requirements
of Section 8.11. If no successor Relevant Trustee shall have been so appointed
by the Common Securityholder or the Preferred Securityholders and accepted
appointment in the manner required by Section 8.11, any Securityholder who has
been a Securityholder of Trust Securities for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each removal of
a Trustee and each appointment of a successor Trustee to all Securityholders in
the manner provided in Section 10.8 and shall give notice to the Depositor. Each
notice shall include the name of the successor Relevant Trustee and the address
of its Corporate Trust Office if it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust Agreement,
in the event any Administrative Trustee or a Delaware Trustee who is a natural
person dies or becomes, in the opinion of the Depositor, incompetent or
incapacitated, the vacancy created by such death, incompetence or incapacity may
be filled by (a) the unanimous act of remaining Administrative Trustees if there
are at least two of them or (b) otherwise by the Depositor (with the successor
in each case being a Person who satisfies the eligibility requirement for
Administrative Trustees or Delaware Trustee, as the case may be, set forth in
Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee, the
retiring Relevant Trustee and each successor Relevant Trustee with respect to
the Trust Securities shall execute and deliver an amendment hereto wherein each
successor Relevant Trustee shall accept such appointment and which (a) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust
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and (b) shall add to or change any of the provisions of this Trust Agreement as
shall be necessary to provide for or facilitate the administration of the Trust
by more than one Relevant Trustee, it being understood that nothing herein or in
such amendment shall constitute such Relevant Trustees co-trustees. Upon the
execution and delivery of such amendment the resignation or removal of the
retiring Relevant Trustee shall become effective to the extent provided therein
and each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Relevant Trustee; but, on request of the Trust or any successor
Relevant Trustee such retiring Relevant Trustee shall duly assign, transfer and
deliver to such successor Relevant Trustee all Trust Property, all proceeds
thereof and money held by such retiring Relevant Trustee hereunder with respect
to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Relevant Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at the time
of such acceptance such successor Relevant Trustee shall be qualified and
eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Property Trustee or the Delaware Trustee may be
merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such Relevant
Trustee shall be a party, or any Person succeeding to all or substantially all
the corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any Distributions owing
and unpaid in respect of the Trust Securities (or, if the Trust Securities are
Discount Securities, such portion of the liquidation amount as may be specified
in the terms of such Trust Securities) and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Property Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
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(b) to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement adjustment or compensation affecting the Trust
Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 8.14. Reports by Property Trustee.
(a) Not later than July 15 of each year commencing with July 15, 1997, the
Property Trustee shall transmit to all Securityholders in accordance with
Section 10.8, and to the Depositor, a brief report dated as of the immediately
preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the best of
its knowledge it has continued to be eligible under said Section, a written
statement to such effect;
(ii) a statement that the Property Trustee has complied with all of its
obligations under this Trust Agreement during the twelve-month period (or, in
the case of the initial report, the period since the Closing Date) ending with
such December 31 or, if the Property Trustee has not complied in any material
respect with such obligations, a description of such noncompliance; and
(iii) any change in the property and funds in its possession as Property
Trustee since the date of its last report and any action taken by the Property
Trustee in the performance of its duties hereunder which it has not previously
reported and which in its opinion materially affects the Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange,
with the Nasdaq National Market or such other interdealer quotation system or
self-regulatory organization upon which the Trust Securities are listed or
traded, with the Commission and with the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust
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Indenture Act in the form, in the manner and at the times required by Section
314 of the Trust Indenture Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder of all of
the Common Securities by written instrument may increase or decrease the number
of Administrative Trustees. The Property Trustee and the Delaware Trustee may be
the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
the provisions of Section 8.10 relating to appointment of a successor Trustee
upon resignation of a Trustee.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence or
incapacity to perform the duties of a Trustee shall not operate to dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of Administrative
Trustees shall occur, until such vacancy is filled by the appointment of an
Administrative Trustee in accordance with Section 8.10, the Administrative
Trustees in office, regardless of their number (and notwithstanding any other
provision of this Agreement), shall have all the powers granted to the
Administrative Trustees and shall discharge all the duties imposed upon the
Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to time
to such of their number or to the Depositor the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Administrative Trustees or otherwise as the Administrative Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of this Trust Agreement, as set forth herein.
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ARTICLE IX.
Termination, Liquidation and Merger
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on December
31, 20__ (the "Expiration Date"), following the distribution of the Trust
Property in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event":
(a) the commencement by the Depositor of a voluntary case under Chapter 7 or
Chapter 8 of the federal Bankruptcy Code or any other similar state or federal
law now or hereafter in effect, or the consent by the Depositor to the entry of
a decree or order for relief in an involuntary case under any such law, or the
consent by Wells Fargo Bank, N.A. to the appointment of a liquidating agent or
committee, conservator or receiver under 12 U.S.C. (S)(S) 181, 191, 203 or 1821
(other than a conservator appointed as the result of circumstances described in
12 U.S.C. (S) 203(a)(6), (7) or (8) or 12 U.S.C. (S) 1821(c)(5)(D) or (E)
pursuant to an order of the relevant federal banking authority stating that such
conservator has been appointed solely pursuant to one or more of such
subsections), or other similar state or federal law now or hereafter in effect;
(b) the entry of a decree or order for relief by a court having jurisdiction
in the premises in respect of the Depositor in an involuntary case under Chapter
7 or Chapter 11 of the federal Bankruptcy Code or any other similar state or
federal law now or hereafter in effect, and the continuance of any such decree
or order unstayed and in effect for a period of 90 days, or the appointment of a
liquidating agent or committee, conservator or receiver for Wells Fargo Bank,
N.A. under 12 U.S.C. (S) 181, 191, 203 or 1821 (other than a conservator
appointed as a result of the circumstances described in 12 U.S.C. (S) 203(a)(6),
(7) or (8) or 12 U.S.C. (S) 1821(c)(5)(D) or (E) pursuant to an order of the
relevant federal banking authority stating that such conservator has been
appointed solely pursuant to one or more of such subsections), or other similar
state or federal law now or hereafter in effect, and the continuance of any such
appointment unstayed and in effect for a period of 90 days.
(c) the dissolution or liquidation of the Depositor;
(d) the written direction to the Property Trustee from the Depositor at any
time (which direction is optional and wholly within the discretion of the
Depositor) to terminate the Trust and, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, distribute Debentures to
Securityholders in exchange for the Preferred Securities.
(e) the redemption of all of the Preferred Securities in connection with the
redemption of all the Debentures; and
(f) the entry of an order for dissolution of the Trust by a court of competent
jurisdiction.
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Section 9.3. Termination.
The respective obligations and responsibilities of the Trustees and the Trust
created and continued hereby shall terminate upon the latest to occur of the
following: (a) the distribution by the Property Trustee to Securityholders upon
the liquidation of the Trust pursuant to Section 9.4, or upon the redemption of
all of the Trust Securities pursuant to Section 4.2, of all amounts required to
be distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of any expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Administrative Trustees, including the performance
of any tax reporting obligations with respect to the Trust or the
Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b), (c), (d) or
(f) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder a Like Amount of
Debentures, subject to Section 9.4(d). Notice of liquidation shall be given by
the Property Trustee by first-class mail, postage prepaid mailed not later than
15 nor more than 60 days prior to the Liquidation Date to each Holder of Trust
Securities at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust Securities will
no longer be deemed to be Outstanding and any Trust Securities Certificates not
surrendered for exchange will be deemed to represent a Like Amount of
Debentures; and
(iii) provide such information with respect to the mechanics by which Holders
may exchange Trust Securities Certificates for Debentures, or if Section 9.4(d)
applies receive a Liquidation Distribution, as the Administrative Trustees or
the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee shall establish a record date for such distribution (which
shall be not more than 45 days prior to the Liquidation Date) and, either itself
acting as exchange agent or through the appointment of a separate exchange
agent, shall establish such procedures as it shall deem appropriate to effect
the distribution of Debentures in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation Date,
(i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to Holders
of Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) the Depositor shall
use its reasonable efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization as the Preferred Securities are then listed, (iv) any
Trust Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate provided
for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of
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Trust Securities Certificates with respect to such Debentures) and (v) all
rights of Securityholders holding Trust Securities will cease, except the right
of such Securityholders to receive Debentures upon surrender of Trust Securities
Certificates.
(d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, winding up
or termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
Preferred Securities, except that, if a Debenture Event of Default has occurred
and is continuing, the Preferred Securities shall have a priority over the
Common Securities.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The Trust may not merge with or into, consolidate, amalgamate, or be replaced
by, or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, except pursuant to this Article IX. At the request of
the Depositor, with the consent of the Administrative Trustees and without the
consent of the Holders of the Preferred Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (a) expressly assumes all
of the obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation, redemption
and otherwise, (ii) the Depositor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debentures, (iii) the Successor Securities are listed or traded,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect, (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Depositor has received an
Opinion of Counsel to
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the effect that (a) such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights, preferences
and privileges of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect, and (b) following such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease, neither
the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act and (viii) the Depositor owns all of the
Common Securities of such successor entity and guarantees the obligations of
such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, the Trust shall not,
except with the consent of Holders of 100% in Liquidation Amount of the
Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to any other Person or permit any other Person to consolidate,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause the
Trust or the successor entity to be classified as other than a grantor trust for
United States Federal income tax purposes.
ARTICLE X.
Miscellaneous Provisions
Section 10.1. Limitation of Rights of Securityholders to Terminate Trust.
The death, incapacity, dissolution, liquidation, termination or bankruptcy of
any Person having an interest, beneficial or otherwise, in Trust Securities
shall not operate to terminate this Trust Agreement, nor entitle the legal
representatives or heirs of such Person or any Securityholder for such Person,
to claim an accounting, take any action or bring any proceeding in any court for
a partition or winding up of the arrangements contemplated hereby, nor otherwise
affect the rights, obligations and liabilities of the parties hereto or any of
them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Administrative Trustees and the Depositor, without the consent of
any Securityholders, (i) to cure any ambiguity, correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Trust Agreement, which shall not be inconsistent with the other provisions
of this Trust Agreement, or (ii) to modify, eliminate or add to any provisions
of this Trust Agreement to such extent as shall be necessary to ensure that the
Trust will be classified for United States Federal income tax purposes as a
grantor trust at all times that any Trust Securities are outstanding or to
ensure that the Trust will not be required to register as an investment company
under the 1940 Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the interests of any
Securityholder, and any amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this Trust
Agreement may be amended by the Trustees and the Depositor with (i) the consent
of Trust Securityholders representing not less than a majority (based upon
Liquidation Amounts) of the Trust Securities then Outstanding and (ii) receipt
by the Trustees of an Opinion of Counsel to the effect that such amendment or
the exercise of any power granted to the Trustees in accordance with such
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amendment will not affect the Trust's status as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status of an
investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no Trustee
shall enter into or consent to any amendment to this Trust Agreement which would
cause the Trust to fail or cease to qualify for the exemption from status of an
investment company under the 1940 Act or fail or cease to be classified as a
grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary, without
the consent of the Depositor, this Trust Agreement may not be amended in a
manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required to
enter into any amendment to this Trust Agreement which affects its own rights,
duties or immunities under this Trust Agreement. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Trust Agreement is in compliance with this Trust
Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES).
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Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that is
not a Business Day, then such payment need not be made on such date but may be
made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit of
any successor to the Depositor, the Trust or the Relevant Trustee, including any
successor by operation of law. Except in connection with a consolidation, merger
or sale involving the Depositor that is permitted under Article Eleven of the
Indenture and pursuant to which the assignee agrees in writing to perform the
Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not affect
the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to Wells Fargo &
Company, 420 Montgomery Street, San Francisco, CA 94163, Attention: Treasurer,
facsimile no.: (415) 989-3851. Such notice, demand or other communication to or
upon a Securityholder shall be deemed to have been sufficiently given or made,
for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Trust,
the Property Trustee, the Delaware Trustee or the Administrative Trustees shall
be given in writing addressed (until another address is published by the Trust)
as follows: (a) with respect to the Property Trustee to The First National Bank
of Chicago, One First National Plaza, Mail Suite 0126, Chicago, IL 60670-0126,
Attention: Corporate Trust Services Division; (b) with respect to the Delaware
Trustee, to First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware
19801, Attention: Michael J. Majchrzak; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Administrative Trustees of Wells Fargo Capital
_." Such notice, demand or other communication to or upon the Trust or the
Property Trustee shall be deemed to have been sufficiently given or made only
upon actual receipt of the writing by the Trust or the Property Trustee.
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Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust Indenture
Act that are required to be part of this Trust Agreement and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for the
purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement shall
not affect the nature of the Trust Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY OR
ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR
FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE
BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST
SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND AGREEMENT
TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER
AND SUCH OTHERS.
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Section 10.12. Counterparts
This Trust Agreement may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original; but all such counterparts
shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated Trust
Agreement of Wells Fargo Capital __ as of the date first above written.
Wells Fargo & Company
By:
--------------------------------------------------------
Name:
Title:
The First National Bank of Chicago
as Property Trustee
By:
--------------------------------------------------------
Name:
Title:
First Chicago Delaware Inc.
as Delaware Trustee
By:
--------------------------------------------------------
Name:
Title:
-----------------------------------------------------------
Guy Rounsaville, Jr.
as Administrative Trustee
-----------------------------------------------------------
Rodney L. Jacobs
as Administrative Trustee
-----------------------------------------------------------
Clyde W. Ostler
as Administrative Trustee
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EXHIBIT A
RESTATED CERTIFICATE OF TRUST
OF
Wells Fargo Capital __
This Restated Certificate of Trust of Wells Fargo Capital __ (the "Trust"),
dated _______ __, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ((S)) 3801 et seq.).
1. Name. The name of the business trust being formed hereby is Wells Fargo
Capital __.
2. Delaware Trustee. The name and business address of the trustee of the Trust
with a principal place of business in the State of Delaware are First Chicago
Delaware Inc. , 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Restated Certificate of Trust shall be effective as of
________ __, 1996.
In Witness Whereof, the undersigned, being the trustees of the Trust, have
executed this Restated Certificate of Trust as of the date first above written.
The First National Bank of Chicago,
as Trustee
By:____________________________________
Name:
Title:
First Chicago Delaware Inc.,
as Trustee
By:____________________________________
Name:
Title:
<PAGE>
EXHIBIT B
_______, 199_
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099
Attention: _______________
General Counsel's Office
Re: Wells Fargo Capital __ ____% Preferred Securities
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the Wells
Fargo Capital __ ____% Preferred Securities, (the "Preferred Securities"), of
Wells Fargo Capital __, a Delaware business trust (the "Issuer"), continued
pursuant to an Amended and Restated Trust Agreement between Wells Fargo &
Company ("Wells Fargo & Company") and The First National Bank of Chicago, as
Property Trustee, First Chicago Delaware Inc., as Delaware Trustee, and the
Administrative Trustees named therein. The payment of distributions on the
Preferred Securities, and payments due upon liquidation of Issuer or redemption
of the Preferred Securities, to the extent the Issuer has funds available for
the payment thereof are guaranteed by Wells Fargo & Company to the extent set
forth in a Guarantee Agreement dated __________ __, ____ by Wells Fargo &
Company with respect to the Preferred Securities. Wells Fargo & Company and the
Issuer propose to sell the Preferred Securities to certain Underwriters (the
"Underwriters") pursuant to an Underwriting Agreement dated __________ __, 1996
by and among the Underwriters, the Issuer and Wells Fargo & Company, and the
Underwriters wish to take delivery of the Preferred Securities through DTC. The
First National Bank of Chicago is acting as transfer agent and registrar with
respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for deposit at
DTC, and to act in accordance with DTC's rules with respect to the Preferred
Securities, the Issuer, the Transfer Agent and Registrar and DTC agree among
each other as follows:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about __________ __, ____, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of
____________ Preferred Securities and bearing the following legend:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
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OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
2. The Amended and Restated Trust Agreement of the Issuer provides for the
voting by holders of the Preferred Securities under certain limited
circumstances. The Issuer shall establish a record date for such purposes and
shall, to the extent possible, give DTC notice of such record date not less than
15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization, reorganization
or any other similar transaction resulting in the cancellation of all or any
part of the Preferred Securities outstanding, the Issuer or the Transfer Agent
and Registrar shall send DTC a notice of such event at least 5 business days
prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of rights with
respect to, the Preferred Securities outstanding, the Issuer or the Transfer
Agent and Registrar shall send DTC a notice specifying: (a) the amount of and
conditions, if any, applicable to the payment of any such distribution or any
such offering or issuance of rights; (b) any applicable expiration or deadline
date, or any date by which any action on the part of the holders of Preferred
Securities is required; and (c) the date any required notice is to be mailed by
or on behalf of the Issuer to holders of Preferred Securities or published by or
on behalf of the Issuer (whether by mail or publication, the "Publication
Date"). Such notice shall be sent to DTC by a secure means (e.g., legible
telecopy, registered or certified mail, overnight delivery) in a timely manner
designed to assure that such notice is in DTC's possession no later than the
close of business on the business day before the Publication Date. The Issuer or
the Transfer Agent and Registrar will forward such notice either in a separate
secure transmission for each CUSIP number or in a secure transmission of
multiple CUSIP numbers (if applicable) that includes a manifest or list of each
CUSIP number submitted in that transmission. (The party sending such notice
shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 15
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on the
Preferred Securities, the Issuer or the Transfer Agent and Registrar will notify
DTC's Dividend Department of such payment 5 business days prior to payment date.
Notices to DTC's Dividend Department by telecopy shall be sent to (212) 709-
1723. Such notices by mail or by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt of
such telecopy by telephoning the Dividend Department at (212) 709-1270.
5. In the event of a full or partial redemption by the Issuer of the Preferred
Securities, notice specifying the terms of the redemption and the Publication
Date of such notice shall be sent by the Issuer or the Transfer Agent and
Registrar to DTC in a timely manner designed to assure such notice is in DTC's
possession no later than the close of business on the business day before, or,
if possible, two business days before the Publication Date prior to such event
by a secure means
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in the manner set forth in paragraph 4. Such redemption notice shall be sent to
DTC's Call Notification Department at (516) 227-4164 or (516) 227-4190, and
receipt of such notice shall be confirmed by telephoning (516) 227-4070. Notice
by mail or by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred Securities, notice
specifying the terms of the tender and the Publication Date of such notice shall
be sent by the Issuer or the Transfer Agent and Registrar to DTC by a secure
means and in a timely manner as described in paragraph 4. Notices to DTC
pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP number
or numbers of the Preferred Securities and the accompanying designation of the
Preferred Securities, which, as of the date of this letter, is "Wells Fargo
Capital I ____% Cumulative Quarterly Income Preferred Securities, Series A."
8. Distribution payments or other cash payments with respect to the Preferred
Securities evidenced by the Global Certificate shall be received by Cede & Co.,
as nominee of DTC, or its registered assigns in same day funds on each payment
date (or in accordance with existing arrangements between the Issuer or the
Transfer Agent and Registrar and DTC). Such payments shall be made payable to
the order of Cede & Co., and, absent any other existing arrangements, shall be
addressed as follows:
NDFS Redemption Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
9. DTC may by prior written notice direct the Issuer and the Transfer Agent
and Registrar to use any other telecopy number or address of DTC as the number
or address to which notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar transaction
(e.g., tender made and accepted in response to the Issuer's or the Transfer
Agent and Registrar's invitation) necessitating a reduction in the aggregate
number of Preferred Securities outstanding evidenced by Global Certificates,
DTC, in its discretion: (a) may request the Issuer or the Transfer Agent
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and Registrar to issue and countersign a new Global Certificate; or (b) may make
an appropriate notation on the Global Certificate indicating the date and amount
of such reduction in which case the certificate will be presented to Issuer or
Transfer Agent and Registrar prior to payment, if required.
11. DTC may discontinue its services as a securities depositary with respect
to the Preferred Securities at any time by giving at least 90 days' prior
written notice to the Issuer and the Transfer Agent and Registrar (at which time
DTC will confirm with the Issuer or the Transfer Agent and Registrar the
aggregate number of Preferred Securities deposited with it) and discharging its
responsibilities with respect thereto under applicable law. Under such
circumstances, the Issuer may determine to make alternative arrangements for
book-entry settlement for the Preferred Securities, make available one or more
separate global certificates evidencing Preferred Securities to any Participant
having Preferred Securities credited to its DTC account, or issue definitive
Preferred Securities to the beneficial holders thereof, and in any such case,
DTC agrees to cooperate fully with the Issuer and the Transfer Agent and
Registrar, and to return the Global Certificate, duly endorsed for transfer as
directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
13. This letter may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
14. If Issuer appoints a successor depository, then DTC, Issuer and the
Transfer Agent and Registrar will cooperate in transferring the Preferred
Securities, and the related records and accounts, to such successor depository.
15. This letter is subject to the Payments Rider attached hereto.
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<PAGE>
Nothing herein shall be deemed to require the Transfer Agent and Registrar to
advance funds on behalf of Wells Fargo Capital I.
Very truly yours,
Wells Fargo Capital __
(as Issuer)
By:____________________________________
Name:
Title:
[Insert name of Administrative Trustee],
as Trustee
The First National Bank of Chicago,
as Transfer Agent and Registrar
By:____________________________________
Name:
Title:
Received and Accepted:
The Depository Trust Company
By:___________________________
Authorized Officer
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<PAGE>
PAYMENTS RIDER
1. This Rider supersedes any contradictory language set forth in the
Letter of Representations to which it is appended.
2. With respect to income payments in the Preferred Securities:
A. DTC shall receive all dividend and interest payments on payable
date in same-day funds by 2:30 p.m. ET (Eastern Time).
B. Issuer agrees that it or the Transfer Agent and Registrar shall
provide dividend and interest payment information to a standard
announcement service subscribed to by DTC. In the unlikely event
that no such service exists, Issuer agrees that it or the
Transfer Agent and Registrar shall provide this information
directly to DTC in advance of the dividend or interest record
date as soon as the information is available.
This information should be conveyed directly to DTC
electronically. If electronic transmission is not possible, such
information should be conveyed by telephone or facsimile
transmission to:
The Depository Trust Company
Manager, Announcements
Dividend Department
7 Hanover Square, 22nd Floor
New York, NY 10004
Telephone: (212) 709-1270
Fax: (212) 709-1723, 1686
C. Issuer agrees that for dividend and interest payments, it or the
Transfer Agent and Registrar shall provide automated notification of
CUSIP-level detail to the depository no later than noon ET on the
payment date.
D. DTC shall receive maturity and redemption payments and CUSIP-level
detail on the payable data in same-day funds by 2:30 p.m. ET. Absent
any other arrangements between the Transfer Agent and Registrar and
DTC, such payments shall be wired according to the following
instructions:
[Chemical Bank
ABA 021000128
For credit to A/C Depository Trust Company
Redemption Account 066-027306]
In accordance with existing SDFS payment procedures in the manner set
forth in DTC's SDFS Paying Agent Operating Procedures a copy of which
has previously been furnished to Agent.
E. DTC shall receive all other payments and CUSIP-level detail resulting
from corporate actions (such as tender offers or mergers) on the first
payable date in
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<PAGE>
same-day funds by 2:30 p.m. ET. Absent any other arrangements between
the Transfer Agent and Registrar and DTC, such payments shall be wired
to the following address:
[Chemical Bank
ABA 021000128
For credit to A/C Depository Trust Company
Reorganization Account 066-027608]
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<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
CERTIFICATE NUMBER __
NUMBER OF COMMON SECURITIES
CERTIFICATE EVIDENCING COMMON SECURITIES
OF
WELLS FARGO CAPITAL __
____% COMMON SECURITIES
(LIQUIDATION AMOUNT $25 PER COMMON SECURITY)
Wells Fargo Capital __, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that Wells Fargo & Company
(the "Holder") is the registered owner of ( ) common securities of
the Trust representing beneficial interests of the Trust and designated the
____% Common Securities (liquidation amount $25 per Common Security) (the
"Common Securities"). In accordance with Section 5.10 of the Trust Agreement (as
defined below) the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of November ___, 1996, as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement to the Holder without charge upon written request to the Trust at its
principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate this day of November, 1996.
Wells Fargo Capital __
By: _________________________________________
Name:
Administrative Trustee
59
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
Agreement dated as of December __, 1996, between Wells Fargo & Company, a
Delaware corporation ("Wells Fargo & Company"), and Wells Fargo Capital I, a
Delaware business trust (the "Trust").
Whereas, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from Wells Fargo & Company and to issue
and sell ____% Preferred Securities (the "Preferred Securities") with such
powers, preferences and special rights and restrictions as are set forth in the
Amended and Restated Trust Agreement of the Trust dated as of December __, 1996
as the same may be amended from time to time (the "Trust Agreement");
Whereas, Wells Fargo & Company will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
Now, Therefore, in consideration of the purchase by each holder of the
Preferred Securities, which purchase Wells Fargo & Company hereby agrees shall
benefit Wells Fargo & Company and which purchase Wells Fargo & Company
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, Wells Fargo & Company and Trust hereby agree as follows:
ARTICLE I
Section 1.1. Guarantee by Wells Fargo & Company.
Subject to the terms and conditions hereof, Wells Fargo & Company hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust, other than obligations of the Trust to pay
to holders of any Preferred Securities or other similar interests in the Trust
the amounts due such holders pursuant to the terms of the Preferred Securities
or such other similar interests, as the case may be. This Agreement is intended
to be for the benefit of, and to be enforceable by, all such Beneficiaries,
whether or not such Beneficiaries have received notice hereof.
Section 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon the
later of (a) the date on which full payment has been made of all amounts payable
to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by Wells Fargo & Company and The First
National Bank of Chicago, as guarantee trustee or
60
<PAGE>
under this Agreement for any reason whatsoever. This Agreement is continuing,
irrevocable, unconditional and absolute.
Section 1.3. Waiver of Notice.
Wells Fargo & Company hereby waives notice of acceptance of this Agreement and
of any Obligation to which it applies or may apply, and Wells Fargo & Company
hereby waives presentment, demand for payment, protest, notice of nonpayment,
notice of dishonor, notice of redemption and all other notices and demands.
Section 1.4. No Impairment.
The obligations, covenants, agreements and duties of Wells Fargo & Company
under this Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any portion
of the Obligations or for the performance of any other obligation under, arising
out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, Wells Fargo & Company with respect to the happening of any of
the foregoing.
Section 1.5. Enforcement.
A Beneficiary may enforce this Agreement directly against Wells Fargo &
Company and Wells Fargo & Company waives any right or remedy to require that any
action be brought against the Trust or any other person or entity before
proceeding against Wells Fargo & Company.
Section 1.6. Subrogation.
Wells Fargo & Company shall be subrogated to all rights (if any) of the Trust
in respect of any amounts paid to the Beneficiaries by Wells Fargo & Company
under this Agreement; provided, however, that Wells Fargo & Company shall not
(except to the extent required by mandatory provisions of law) be entitled to
enforce or exercise any rights which it may acquire by way of subrogation or any
indemnity, reimbursement or other agreement, in all cases as a result of payment
under this Agreement, if, at the time of any such payment, any amounts are due
and unpaid under this Agreement.
61
<PAGE>
ARTICLE II
Section 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of Wells Fargo &
Company and shall inure to the benefit of the Beneficiaries.
Section 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
Section 2.3. Notices.
Any notice, request or other communication required or permitted to be given
hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
Wells Fargo Capital __
420 Montgomery Street
San Francisco, California 94163
Facsimile No.: (415)989-3851
Attention: Treasurer
Wells Fargo & Company
420 Montgomery Street
San Francisco, California 94163
Facsimile No.: (415) 989-3851
Attention: Treasurer
Section 2.4. This Agreement shall be governed by and construed and interpreted
in accordance with the laws of the State of California (without regard to
conflict of laws principles).
62
<PAGE>
This Agreement is executed as of the day and year first above written.
Wells Fargo & Company
By: _________________________
Name:
Title:
Wells Fargo Capital I
By: _________________________
Name:
Administrative Trustee
63
<PAGE>
EXHIBIT E
This Preferred Security is a Global Certificate within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name of The
Depository Trust Company (the "Depository") or a nominee of the Depository. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
the Depository (55 Water Street, New York) to Wells Fargo Capital I or its agent
for registration of transfer, exchange or payment, and any Preferred Security
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
THE PREFERRED SECURITIES EVIDENCED BY THIS CERTIFICATE ARE NOT DEPOSITS OR
OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
CERTIFICATE NUMBER
NUMBER OF PREFERRED SECURITIES
P-
CUSIP NO.
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
WELLS FARGO CAPITAL __
____% PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
REGISTERED HOLDER: CEDE & CO.
Wells Fargo Capital __, a statutory business trust created under the laws of
the State of Delaware (the "Trust"), hereby certifies that
(the "Holder") is the registered owner of ( ) preferred securities
of the Trust representing an undivided beneficial interest in the assets of the
Trust and designated the Wells Fargo Capital __ ____% Preferred Securities
(liquidation amount $25 per Preferred Security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer as provided in Section 5.4 of the
Trust Agreement (as
64
<PAGE>
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended and
Restated Trust Agreement of the Trust dated as of , , as the same
may be amended from time to time (the "Trust Agreement") including the
designation of the terms of Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
Wells Fargo & Company, a Delaware corporation, and The First National Bank of
Chicago, as guarantee trustee, dated as of _________ __, 1996, (the
"Guarantee"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee to the Holder without charge upon written
request to the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
In Witness Whereof, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
Wells Fargo Capital ___
By: ____________________________________
Name:
Administrative Trustee
65
<PAGE>
FORM OF ASSIGNMENT
For Value Received, the undersigned assigns and transfers this Preferred
Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _________
Signature: _____________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
<PAGE>
EXHIBIT 4(dd)
FORM OF DEBENTURE
-----------------
Registered
NUMBER _____________ $__________
WELLS FARGO & COMPANY
___% JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE ________________
Dated: ______________, 1996 CUSIP ________
Registered Holder: The First National Bank of Chicago
as Property Trustee of Wells Fargo Capital __
THIS DEBENTURE IS NOT A DEPOSIT OR OTHER OBLIGATION OF A BANK AND IS NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER FEDERAL
AGENCY
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein referred to as the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to the Registered Holder named
above, the principal sum of ________________, on ________ 1, 202_, in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public and private debts; provided that the Company
may (i) shorten the Stated Maturity of the principal of this debenture (the
"Debenture") to a date not earlier than _______ 1, 200_, and (ii) extend the
Stated Maturity of the principal of this Debenture at any time on one or more
occasions, subject to certain conditions specified in Section 2.12 of the
Indenture, but in no event to a date later than _______ 1, 204_. The Company
further promises to pay to the registered holder hereof as hereinafter provided
(a) interest on said principal sum at the rate per annum specified in the title
of this Debenture, in like coin or currency, quarterly (subject to deferral as
set forth herein) in arrears on the first day of January, April, July and
October (each an "Interest Payment Date") commencing ________ 1, 199_, from the
Interest Payment Date next preceding the date hereof to which interest has been
paid or duly provided for (unless (i) no interest has yet been paid or duly
provied for on this Debenture, in which case from ______________, 199_, or (ii)
the date hereof is before an Interest Payment Date but after the related Record
Date (as defined below), in which case from such following Interest Payment
Date, provided, however, that if the Company shall default in payment of the
interest due on such following Interest Payment Date, then from the next
preceding Interest Payment Date to which interest has been paid or duly provided
for), until the principal hereof is paid or duly provided for or made available
for payment, plus (b) Additional Interest (as defined in the Indenture) on any
overdue installment of interest at the rate per annum specified in the title of
this Debenture, compounded quarterly. The interest so payable will, subject to
certain exceptions provided in the Indenture hereinafter referred to, be paid to
the person in whose name this Debenture is registered at the close of business
on the December 15, March 15, June 15 or September 15 (each a "Record Date")
<PAGE>
next preceding such January 1, April 1, July 1 or October 1. This Debenture may
be presented for payment of principal and interest at the offices of The First
Chicago National Bank, as payment agent for the Company, maintained for that
purpose in the City of Chicago, State of Illinois and the Borough of Manhattan,
The City of New York, State of New York; provided, however, that payment of
interest may be made at the option of the Company (i) by check mailed to such
address of the person entitled thereto as the address shall appear on the
Register of the Debentures of this series or (ii) by transfer to an account
maintained by the Person entitled thereto as specified in the Register of
Debentures, provided that proper transfer instructions have been received by the
Record Date. Interest on the Debenture will be computed on the basis of a 360-
day year of twelve 30-day months.
This Debenture is one of a duly authorized issue of Debentures of the
Company designated as its ___% Junior Subordinated Deferrable Interest
Debentures due _______ 1, 202_, all issued or to be issued in one or more series
under and pursuant to an indenture, dated as of November 27, 1996, duly executed
and delivered by the Company, as issuer, to The First National Bank of Chicago,
as trustee (the "Trustee", which term includes any successor trustee under the
Indenture), as supplemented by a First Supplemental Indenture and a Second
Supplemental Indenture both dated November 27, 1996 and a Third Supplemental
Indenture dated December 3, 1996 (as further supplemented or amended from time
to time, the "Indenture"). Reference is made to the Indenture for a description
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the registered holder or
registered holders (the "Holder" or "Holders") of the Debentures. Terms used
herein which are not defined herein but which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture. The Debentures
of this series are limited (except as otherwise provided in the Indenture) to
the aggregate principal amount of ____________ Million Dollars ($___,000,000)
($__________ if the over-allotment option is exercised in full).
The indebtedness of the Company evidenced by the Debentures of this
series, including the principal thereof and interest thereon, is, to the extent
and in the manner set forth in the Indenture, subordinate and junior in right of
payment to its obligations to holders of Senior Indebtedness of the Company and
each holder of a Debenture of this series, by acceptance thereof, agrees to and
shall be bound by such provisions of the Indenture and all other provisions of
the Indenture.
So long as no Event of Default has occurred and is continuing, the
Company shall have the right at any time during the term of this Debenture to
defer payment of interest on this Debenture, at any time or from time to time,
for up to 20 consecutive quarterly interest payment periods with respect to each
deferral period (each an "Extension Period"), during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon to
the extent permitted by applicable law); provided, however, that no Extension
Period shall extend beyond the Stated Maturity of the principal of this
Debenture; provided, further, that during any such Extension Period, the Company
shall not, and shall not permit any Subsidiary of the Company to, (i) declare or
pay any dividends or distributions or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock or (ii)
make any payment of principal of, or interest or premium, if any, on or repay,
repurchase or redeem any debt security of the Company that ranks pari passu with
or junior in interest to this Debenture or make any guarantee payments with
respect to any guarantee by the Company of the debt securities of any
Subsidiaries of the Company if such guarantee ranks pari passu with or junior in
interest to this Debenture (other
<PAGE>
than (a) dividends or distributions in Common Stock, (b) any declaration of a
dividend in connection with the implementation of a Rights Plan, the issuance of
any Common Stock or any class or series of preferred stock of the Company under
any Rights Plan or the redemption or repurchase of any rights distributed
pursuant to a Rights Plan, (c) payments under any Wells Fargo Guarantee, and (d)
purchases of Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors, officers or
employees.) Prior to the termination of any such Extension Period, the Company
may further extend the interest payment period, provided that no Extension
Period shall exceed 20 consecutive quarters or extend beyond the Stated Maturity
of the principal of this Debenture. Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may elect to begin a new Extension
Period, subject to the above requirements. No interest shall be due and payable
during an Extension Period except at the end thereof. The Company shall give the
Holder of this Debenture and the Trustee notice of its election to begin any
Extension Period at least one Business Day prior to (a) the next succeeding
Interest Payment Date on which interest on this Debenture would be payable but
for such deferral, or (b) with respect to Debentures issued to a Wells Fargo
Trust, so long as such Debentures are held by such Wells Fargo Trust, the
earlier of (i) the next succeeding date on which Distributions on such Wells
Fargo Trust's Preferred Securities would be payable but for such deferral or
(ii) the date the Administrative Trustees are required to give notice to any
securities exchange, automated quotation system or other applicable self-
regulatory organization, or to holders of such Wells Fargo Trust's Preferred
Securities, of the Record Date or the date such Distributions are payable, but
in any event not less than one Business Day prior to such Record Date.
This Debenture shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by or on
behalf of the Trustee under the Indenture.
<PAGE>
REVERSE OF DEBENTURE
As provided in and subject to the provisions of the Indenture, if an
Event of Default with respect to the payment of principal or interest or
compliance with certain covenants occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Debentures of this series may declare the principal amount of
all the Debentures of this series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee, if given by Holders), provided
that, in the case of the Debentures of this series issued to a Wells Fargo
Trust, if upon such an Event of Default the Trustee or the Holders of not less
than 25% in principal amount of the outstanding Debentures of this series fail
to declare the principal of all the Securities of this series to be immediately
due and payable, then the holders of at least 25% in aggregate liquidation
amount of such Wells Fargo Trust's Preferred Securities then outstanding shall
have such right by a notice in writing to the Company and the Trustee; and upon
any such declaration the principal amount of and the accrued interest (including
any Additional Interest) on all the Debentures of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Debentures shall remain subordinated
to the extent provided in the Indenture.
If an Event of Default with respect to certain covenants applicable to
all series of securities issued under the Indenture (collectively, the
"Securities"), or with respect to events of bankruptcy, insolvency or
reorganization of the Company or Wells Fargo Bank, N.A. occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of all outstanding Securities (voting as a class)
may declare the principal amount of all the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if such
notice is given by Holders), provided that, in the case of Securities issued to
one or more Wells Fargo Trusts, if upon such an Event of Default the Trustee or
the Holders of not less than 25% in principal amount of all outstanding
Securities fail to declare the principal of all the Securities to be immediately
due and payable, the holders of at least 25% in aggregate liquidation amount of
the corresponding Preferred Securities and Capital Securities of such Wells
Fargo Trusts then outstanding shall have such right by a notice in writing to
the Company and the Trustee; and upon any such declaration the principal amount
of and the accrued interest (including any Additional Interest) on all the
Securities shall become immediately due and payable, provided that the payment
of principal and interest (including any Additional Interest) shall remain
subordinated to the extent provided in the Indenture.
The Indenture provides that in certain events a declaration that
principal and accrued interest are due and payable, and the consequences of such
declaration, may be rescinded and annulled by the Holders of a majority in
principal amount of the Securities then outstanding under the Indenture as to
which such an acceleration has occurred, voting as one class. In the case of
Securities issued under the Indenture to one or more Wells Fargo Trusts, should
the Holders of such Securities fail to rescind and annul such declaration and
its consequences, the Holders of a majority in aggregate liquidation amount of
the corresponding Preferred Securities and Capital Securities of such Wells
Fargo Trusts shall have such right. The Indenture also provides that the
Holders of a majority in principal amount of all of the Securities of all series
then outstanding as to which an Event of Default has occurred (voting as one
class) may, on behalf of all Holders of such Securities, waive any past default
under the Indenture other than (a) a default in the payment of the principal of
or interest on any of the Securities or (b) a default in respect of a covenant
or provision of the Indenture which under the terms of the Indenture cannot be
modified or amended without the consent of each Holder of Securities so
affected. In the case of Securities of one or more series issued to one or more
Wells Fargo Trusts, the Indenture provides that the
<PAGE>
Holders of a majority in aggregate liquidation amount of the corresponding
Preferred Securities and Capital Securities issued by such Wells Fargo Trusts
shall also have the right to waive such defaults.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities of all affected series (voting as
one class), to execute supplemental indentures adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or modifying in any manner the rights of the
Holders of the Securities of each such series; provided, however, that no such
supplemental indenture shall, without the consent of the Holders of all
Securities then outstanding (i) extend the fixed maturity of any Securities, or
reduce the rate or extend the time of payment of interest thereon or on any
overdue principal amount, or reduce the principal amount thereof, or make the
principal thereof or any interest thereon or on any overdue principal amount
payable in any coin or currency other than that herein prescribed without the
consent of the Holder of each Security so affected, (ii) reduce the percentage
of Securities, the consent of the Holders of which is required for any such
supplemental indenture, (iii) modify certain provisions of the Indenture
relating to waiver of compliance with covenants, waiver of defaults or
modification of the Indenture without the consent of the Holders of all
Securities affected thereby, except to increase the percentage of Holders
required for such waiver or modification, or (iv) modify the provisions with
respect to the subordination of outstanding Securities of any series in a manner
adverse to the Holders thereof; provided, further, that, in the case of the
Securities of a series issued to a Wells Fargo Trust, so long as any of the
corresponding series of Preferred Securities or Capital Securities issued by
such Wells Fargo Trust remains outstanding, (i) no such amendment shall be made
that adversely affects the Holders of such Preferred Securities or Capital
Securities in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
Holders of at least a majority of the aggregate liquidation preference of such
Preferred Securities or Capital Securities then outstanding, unless and until
the principal (and premium, if any,) of the Securities of such series and all
accrued and unpaid interest (including any Additional Interest) thereon have
been paid in full and (ii) no amendment shall be made to Section 6.05 of the
Indenture (regarding the right of Holders of Preferred Securities or Capital
Securities to institute a suit directly against the Company) that would impair
the rights of the Holders of Preferred Securities or Capital Securities provided
therein without the prior consent of the Holders of all Preferred Securities and
Capital Securities then outstanding, unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and unpaid
interest (including any Additional Interest) thereon have been paid in full.
Any consent or waiver by the Holder of this Debenture given as
provided in the Indenture (unless effectively revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders of this Debenture and of any Debenture issued in exchange, registration
of transfer, or otherwise in lieu hereof irrespective of whether any notation of
such consent or waiver is made upon this Debenture or such other Securities. No
reference herein to the Indenture and no provision of this Debenture or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Debenture, at
the places, at the respective times, at the rate and in the coin or currency
herein prescribed.
This Debenture will be redeemable, in whole or in part, at the option
of the Company at any time on or after ______________, 200_. In the event of
redemption of
<PAGE>
this Debenture in part only, a new Debenture or Securities of this series for
the unredeemed portion hereof will be issued in the name of the Holder hereof
upon the cancellation hereof.
Upon the occurrence and during the continuation of a Tax Event,
Investment Company Event or Capital Treatment Event in respect of a Wells Fargo
Trust, the Company may, at its option, at any time within 90 days of the
occurrence of such Tax Event, Investment Company Event or Capital Treatment
Event redeem this Debenture, in whole but not in part, subject to the provisions
of Section 3.04 and the other provisions of Article Three of the Indenture, at a
redemption price equal to 100% of the principal amount thereof plus accrued and
unpaid interest, including Additional Interest, if any, to the Redemption Date.
The Indenture contains provisions for the satisfaction and discharge
of the entire indebtedness of this Debenture upon compliance by the Company with
the conditions set forth in the Indenture.
The Debentures of this series are issuable as fully registered
Debentures in denominations of $1,000 and integral multiples of $1,000 in excess
thereof. At the offices of the Securities Registrar maintained for such
purpose, and subject to the limitations provided in the Indenture, Debentures of
this series may be exchanged for a like aggregate principal amount of Debentures
of this series of other authorized denominations, without payment of any charge
other than a sum sufficient to reimburse the Company for any tax or other
governmental charge incident thereto.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture may be registered on the
Register of the Debentures of this series upon surrender of this Debenture for
registration of transfer at the offices or agencies to be maintained by the
Securities Registrar for such purpose, duly endorsed by the Holder hereof or his
attorney duly authorized in writing or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by the Holder hereof or his attorney duly authorized in writing, but
without payment of any charge other than a sum sufficient to reimburse the
Company for any tax or other governmental charge incident thereto. Upon any
such registration of transfer, a new Debenture or Securities of this series of
authorized denomination or denominations for the same aggregate principal amount
will be issued to the transferee in exchange herefor.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, and any agent of the Company or the Trustee
may deem and treat the person in whose name this Debenture shall be registered
upon the Register of the Debentures of this series as the absolute owner of this
Debenture (whether or not this Debenture shall be overdue and notwithstanding
any notation of ownership or other writing hereon) for the purpose of receiving
payment of or on account of the principal hereof and, subject to the provisions
on the face hereof, interest due hereon and for all other purposes; and neither
the Company nor the Trustee nor any such agent shall be affected by any notice
to the contrary.
No recourse shall be had for the payment of the principal of or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by virtue
of any constitution,
<PAGE>
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as a part of
the consideration for the issue hereof, expressly waived and released.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture. By acceptance of this
Debenture, the Holder hereof agrees to be bound by the provisions of the
Indenture.
This Debenture shall be deemed to be a contract made under the laws of
the State of California and for all purposes shall be governed by and construed
in accordance with the laws of said State.
<PAGE>
IN WITNESS WHEREOF, WELLS FARGO & COMPANY has caused this instrument
to be signed, manually or in facsimile, by its Chairman of the Board or its
President or a Vice President and by its Secretary or an Assistant Secretary and
a facsimile of its corporate seal to be affixed hereunto.
WELLS FARGO & COMPANY
By
----------------------------------------
William F. Zuendt
President
By
---------------------------------------
Robert S. Singley
Assistant Secretary
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated herein,
described in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By
---------------------------------------
Authorized Officer
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
Please insert Social Security or other
identifying number of assignee:
- ---------------------------------------
- --------------------------------------------------------------------------------
(Name and Address of Assignee, including Zip Code,
must be printed or typewritten)
- --------------------------------------------------------------------------------
the within Debenture, and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney to transfer said Debenture on the
- ------------------------------
Register of the Company, with full power of substitution in the premises.
Dated:
------------------------------------------------------------------------
NOTICE: The signature to this assignment must correspond with the
name as it appears upon the face of the within Debenture in every particular,
without alteration or enlargement or any change whatever.
<PAGE>
EXHIBIT 4(ee)
- -------------------------------------------------------------------------------
FORM OF
GUARANTEE AGREEMENT
RELATED TO __% PREFERRED SECURITIES OF
WELLS FARGO CAPITAL _
BETWEEN
WELLS FARGO & COMPANY
(AS GUARANTOR)
AND
THE FIRST NATIONAL BANK OF CHICAGO
(as Trustee)
dated as of
December ___, 1996
- -------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
- ------------------- -------------------
<S> <C>
310(a).................................................. 4.1(a)
310(b).................................................. 4.1(c), 2.8
310(c).................................................. Inapplicable
311(a).................................................. 2.2(b)
311(b).................................................. 2.2(b)
311(c).................................................. Inapplicable
312(a).................................................. 2.2(a)
312(b).................................................. 2.2(b)
313..................................................... 2.3
314(a).................................................. 2.4
314(b).................................................. Inapplicable
314(c).................................................. 2.5
314(d).................................................. Inapplicable
314(e).................................................. 1.1, 2.5, 3.2
314(f).................................................. 2.1, 3.2
315(a).................................................. 3.1(d)
315(b).................................................. 2.7
315(c).................................................. 3.1
315(d).................................................. 3.1(d)
316(a).................................................. 1.1, 2.6, 5.4
316(b).................................................. 5.3
316(c).................................................. 8.2
317(a).................................................. Inapplicable
317(b).................................................. Inapplicable
318(a).................................................. 2.1(b)
318(b).................................................. 2.1
318(c).................................................. 2.1(a)
- ----------------
</TABLE>
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE I. DEFINITIONS.................................................. 1
Section 1.1. Definitions 1
ARTICLE II. TRUST INDENTURE ACT.......................................... 3
Section 2.1. Trust Indenture Act; Application............................. 3
Section 2.2. List of Holders.............................................. 3
Section 2.3. Reports by the Guarantee Trustee............................. 3
Section 2.4. Periodic Reports to the Guarantee Trustee.................... 4
Section 2.5. Evidence of Compliance with Conditions Precedent............. 4
Section 2.6. Events of Default; Waiver.................................... 4
Section 2.7. Event of Default; Notice..................................... 4
Section 2.8. Conflicting Interests 4
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE........... 4
Section 3.1. Powers and Duties of the Guarantee Trustee................... 4
Section 3.2. Certain Rights of Guarantee Trustee.......................... 6
Section 3.3. Indemnity 7
ARTICLE IV. GUARANTEE TRUSTEE............................................ 7
Section 4.1. Guarantee Trustee: Eligibility............................... 7
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee 7
ARTICLE V. GUARANTEE.................................................... 8
Section 5.1. Guarantee.................................................... 8
Section 5.2. Waiver of Notice and Demand.................................. 8
Section 5.3. Obligations Not Affected..................................... 8
Section 5.4. Rights of Holders........................................... 9
Section 5.5. Guarantee of Payment......................................... 9
Section 5.6. Subrogation.................................................. 9
Section 5.7. Independent Obligations...................................... 9
Section 6.1. Subordination................................................ 9
Section 6.2. Pari Passu Guarantees........................................ 10
ARTICLE VII. TERMINATION.................................................. 10
Section 7.1. Termination.................................................. 10
ARTICLE VIII. MISCELLANEOUS................................................ 10
Section 8.1. Successors and Assigns....................................... 10
Section 8.2. Amendments................................................... 10
Section 8.3. Notices...................................................... 10
Section 8.4. Benefit...................................................... 11
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C> <C>
Section 8.5. Interpretation............................................... 11
Section 8.6. Governing Law................................................ 12
</TABLE>
iii
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of December __, 1996, is executed and
delivered by Wells Fargo & Company, a Delaware corporation (the "Guarantor"),
and The First National Bank of Chicago, a national banking association, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Preferred Securities (as defined herein) of
Wells Fargo Capital _, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the "Trust
Agreement"), dated as of December __, 1996 (the "Trust Agreement") among the
Guarantor, as Depositor, the Property Trustee, the Delaware Trustee and the
Administrative Trustees named therein and the Holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing $___________ in aggregate Liquidation Amount (as that term is defined in
the Trust Agreement) of its ____% Preferred Securities, Liquidation Amount $25
per preferred security (the "Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor which will be deposited
with The First National Bank of Chicago, as Property Trustee under the Trust
Agreement, as trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I.
DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall, unless
the context otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Board of Directors" means either the board of directors of the Guarantor or
any committee of that board duly authorized to act hereunder.
1.
<PAGE>
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment or
other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) required to be paid on the Preferred Securities,
to the extent the Issuer shall have funds on hand available therefor at such
time, (ii) the redemption price, including all accrued and unpaid Distributions
to the date of redemption (the "Redemption Price"), with respect to any
Preferred Securities called for redemption by the Issuer to the extent the
Issuer shall have funds on hand available therefor at such time, and (iii) upon
a voluntary or involuntary termination, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the Liquidation Amount of $25 per Preferred Security plus accrued
and unpaid Distributions on the Preferred Securities to the date of payment, and
(b) the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means The First National Bank of Chicago, until a
Successor Guarantee Trustee has been appointed and has accepted such appointment
pursuant to the terms of this Guarantee Agreement and thereafter means each such
Successor Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Indenture dated as of November 27, 1996, between the
Guarantor and The First National Bank of Chicago, as trustee, as amended or
supplemented from time to time.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as provided
by the Trust Indenture Act, a vote by the Holder(s), voting separately as a
class, of more than 50% of the Liquidation Amount of all then outstanding
Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman of the Board, any Vice Chairman of the Board, the Chief
Executive Officer, the President, any Vice Chairman or any Vice President, and
by the Treasurer, Associate Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Assistant Secretary of such Person, and delivered to the
Guarantee Trustee. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this Guarantee Agreement
shall include:
(a) a statement that each officer signing the Officers' Certificate has read
the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or investigation
as, in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
2.
<PAGE>
(d) a statement as to whether, in the opinion of each officer, such condition
or covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee, any Senior
Vice President, any Vice President, any Assistant Vice President, the Secretary,
any Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust
Officer or Assistant Trust Officer or any other officer of the Corporate Trust
Department of the Guarantee Trustee and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II.
TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before January 15 and July 15 of each year,
beginning with ___, a list, in such form as the Guarantee Trustee may
reasonably require, of the names and addresses of the Holders ("List of
Holders") as of a date not more than 15 days prior to the delivery thereof, and
(b) at such other times as the Guarantee Trustee may request in writing, within
30 days after the receipt by the Guarantor of any such request, a List of
Holders as of a date not more than 15 days prior to the time such list is
furnished, in each case to the extent such information is in the possession or
control of the Guarantor and is not identical to a previously supplied list of
Holders or has not otherwise been received by the Guarantee Trustee in its
capacity as such. The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
Section 2.3. Reports by the Guarantee Trustee.
Not later than July 15 of each year, commencing July 15, 1997, the Guarantee
Trustee shall provide to the Holders such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by
Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also comply
with the requirements of Section 313(d) of the Trust Indenture Act.
3.
<PAGE>
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee Trustee, unless such
defaults have been cured before the giving of such notice, provided, that,
except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event
of Default unless the Guarantee Trustee shall have received written notice, or a
Responsible Officer charged with the administration of this Guarantee Agreement
shall have obtained written notice, of such Event of Default.
Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III.
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee
4.
<PAGE>
Trustee of its appointment hereunder, and such vesting and cessation of title
shall be effective whether or not conveyancing documents have been executed and
delivered pursuant to the appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing or
waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee Agreement,
and the Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee Trustee,
the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee Agreement; but in the case of any
such certificates or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Guarantee
Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Guarantee Trustee, unless
it shall be proved that the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a Majority in Liquidation Amount of
the Preferred Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is not reasonably
assured to it under the terms of this Guarantee Agreement or adequate
indemnity against such risk or liability is not reasonably assured to it.
5.
<PAGE>
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may rely and shall be fully protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by this Guarantee
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and rely
upon an Officers' Certificate which, upon receipt of such request from the
Guarantee Trustee, shall be promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel, and the written
advice or opinion of such legal counsel with respect to legal matters shall be
full and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion. Such legal counsel may be legal
counsel to the Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such adequate security and indemnity as would satisfy a
reasonable person in the position of the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that might
be incurred by it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee; provided
that, nothing contained in this Section 3.2(a)(v) shall be taken to relieve
the Guarantee Trustee, upon the occurrence of an Event of Default, of its
obligation to exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) The Guarantee Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action hereunder, the
Guarantee Trustee (A) may request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other action until
such instructions are received, and (C) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or
6.
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incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power or
authority available to the Guarantee Trustee shall be construed to be a duty to
act in accordance with such power and authority.
Section 3.3. Indemnity.
The Guarantor agrees to indemnify the Guarantee Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on the part of the Guarantee Trustee, arising out of or in connection
with the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement.
ARTICLE IV.
GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least $50,000,000,
and shall be a corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so act
under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
7.
<PAGE>
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery to the
Guarantor of an instrument of resignation, the resigning Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent jurisdiction
for appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE V.
GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion
of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as so provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred Securities;
8.
<PAGE>
(f) the settlement or compromise of any obligation guaranteed hereby or hereby
incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a guarantor, it being the intent of this
Section 5.3 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a Majority in
Liquidation Amount of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee in respect of this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) to the fullest extent permitted by law, any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first instituting a legal
proceeding against the Guarantee Trustee, the Issuer or any other Person. The
Guarantor waives any rights to require that any action be brought first against
the Issuer or any other Person before proceeding directly against the Guarantor.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts theretofore paid by
the Issuer) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Preferred Securities and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
Section 5.8. Merger or Consolidation of Guarantor.
The Guarantor covenants that it will not consolidate with or merge into any
other Person, or transfer, convey or lease all or substantially all of its
assets or properties to any other Person, and no other Person shall consolidate
with or merge into the Guarantor, or transfer, convey or lease all or
substantially all of its assets to the Guarantor, unless (i) either the
Guarantor shall be the continuing corporation, or the successor shall be a
Person organized and existing under the laws of the United States of America or
a State thereof or the District of Columbia and such
9.
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successor shall expressly assume the Guarantor's obligations under this
Guarantee Agreement by written instrument satisfactory to the Guarantee Trustee,
executed and delivered to the Trustee by such successor, (ii) immediately after
such merger or consolidation, or such transfer, conveyance or lease, no Event of
Default hereunder, and no event which, after notice or lapse of time or both
would become an Event of Default, shall have happened and be continuing, and
(iii) such consolidation, merger, transfer, conveyance or lease is permitted
under the Trust Agreement and Indenture and does not give rise to any breach or
violation of the Trust Agreement or Indenture.
ARTICLE VI.
COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement constitute
unsecured obligations of the Guarantor and rank subordinate and junior in right
of payment to all other liabilities of the Guarantor (including obligations
under the Debentures) except (a) those liabilities which expressly by their
terms are made pari passu or subordinate to the obligations of the Guarantor
under this Guarantee Agreement, and (b) liabilities arising under similar
guarantee agreements as described in Section 6.2 hereof.
Section 6.2. Pari Passu to Similar Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under any similar guarantee
agreements issued by the Guarantor on behalf of the holders of preferred
securities or capital securities issued by any Wells Fargo Capital Trust (as
defined in the Indenture).
ARTICLE VII.
TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and effect
upon (i) full payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of Debentures to the Holders in exchange for all of the
Preferred Securities or (iii) full payment of the amounts payable in accordance
with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to Preferred Securities or this Guarantee
Agreement.
ARTICLE VIII.
MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Section 5.08 of this
Guarantee Agreement, the Guarantor shall not assign its obligations hereunder.
10.
<PAGE>
Section 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights of
the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of all
the outstanding Preferred Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of the Holders shall apply to the giving of such
approval.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other
address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
Wells Fargo & Company
420 Montgomery Street
San Francisco, CA 94163
Facsimile No.: 415-989-3851
Attention: Treasurer
(b) if given to the Issuer, in care of the Guarantee Trustee, at the Issuer's
(and the Guarantee Trustee's) address set forth below or such other address as
the Guarantee Trustee on behalf of the Issuer may give notice to the Holders:
Wells Fargo Capital ___
c/o Wells Fargo & Company
420 Montgomery Street
San Francisco, CA 94163
Facsimile No.: 415-989-3851
Attention: Treasurer
with a copy to:
The First National Bank of Chicago
One First National Plaza Suite 0126
Chicago, IL 60670
Facsimile No.: 312-407-1708
Attention: Corporate Trust - Services Division
(c) if given to any Holder, at the address set forth on the books and records
of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
11.
<PAGE>
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
Section 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in the
preamble hereto have the respective meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning
throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee Agreement"
are to this Guarantee Agreement as modified, supplemented or amended from time
to time;
(d) all references in this Guarantee Agreement to Articles and Sections are to
Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used
in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement
or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF; PROVIDED, HOWEVER, THAT THE RIGHTS AND
DUTIES OF THE GUARANTEE TRUSTEE HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF THE GUARANTEE TRUSTEE'S PRINCIPAL PLACE OF BUSINESS.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
WELLS FARGO & COMPANY
By:_______________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
12.
<PAGE>
as Guarantee Trustee
By:________________________
Name:
Title:
13.
<PAGE>
EXHIBIT 4(ff)
RESTATED CERTIFICATE OF TRUST OF
WELLS FARGO CAPITAL I
THIS Restated Certificate of Trust of Wells Fargo Capital I (the
"Trust"), dated as of November 20, 1996, is being duly executed and filed by the
undersigned, as trustee, to restate the original Certificate of Trust of the
Trust, which was filed on October 30, 1996, with the Secretary of State of the
State of Delaware under the Delaware Business Trust Act (12 Del. C. (S) 3801, et
------- --
seq.).
- ---
The Certificate of Trust is hereby restated in its entirety to read as
follows:
1. Name. The name of the business trust is Wells Fargo Capital I.
----
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware are
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Restated Certificate of Trust shall be
--------------
effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being a trustee of the Trust, has
executed this Restated Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
not in its individual capacity,
but solely as trustee
By: /s/ Steven M. Wagner
--------------------------------------------
Name: Steven M. Wagner
Title: Vice President
<PAGE>
EXHIBIT 4(gg)
RESTATED CERTIFICATE OF TRUST OF
WELLS FARGO CAPITAL II
THIS Restated Certificate of Trust of Wells Fargo Capital II (the
"Trust"), dated as of November 20, 1996, is being duly executed and filed by the
undersigned, as trustee, to restate the original Certificate of Trust of the
Trust, which was filed on October 30, 1996, with the Secretary of State of the
State of Delaware under the Delaware Business Trust Act (12 Del. C. (S) 3801, et
------- --
seq.).
- ---
The Certificate of Trust is hereby restated in its entirety to read as
follows:
1. Name. The name of the business trust is Wells Fargo Capital II.
----
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware are
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Restated Certificate of Trust shall be
--------------
effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being a trustee of the Trust, has
executed this Restated Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
not in its individual capacity,
but solely as trustee
By: /s/ Steven M. Wagner
----------------------------------------
Name: Steven M. Wagner
Title: Vice President
<PAGE>
EXHIBIT 4(hh)
RESTATED CERTIFICATE OF TRUST OF
WELLS FARGO CAPITAL III
THIS Restated Certificate of Trust of Wells Fargo Capital III (the
"Trust"), dated as of November 20, 1996, is being duly executed and filed by the
undersigned, as trustee, to restate the original Certificate of Trust of the
Trust, which was filed on October 30, 1996, with the Secretary of State of the
State of Delaware under the Delaware Business Trust Act (12 Del. C. (S) 3801, et
------- --
seq.).
- ---
The Certificate of Trust is hereby restated in its entirety to read as
follows:
1. Name. The name of the business trust is Wells Fargo Capital III.
----
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust with a principal place of business in the State of Delaware are
First Chicago Delaware Inc., 300 King Street, Wilmington, Delaware 19801.
3. Effective Date. This Restated Certificate of Trust shall be
--------------
effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned, being a trustee of the Trust, has
executed this Restated Certificate of Trust as of the date first above written.
FIRST CHICAGO DELAWARE INC.,
not in its individual capacity,
but solely as trustee
By: /s/ Steven M. Wagner
------------------------------------------
Name: Steven M. Wager
Title: Vice President
<PAGE>
EXHIBIT 5(a)
December 3, 1996
Wells Fargo & Company
Wells Fargo Capital I
Wells Fargo Capital II
Wells Fargo Capital III
420 Montgomery Street
San Francisco, California 94163
Re: Wells Fargo & Company, Wells Fargo Capital I, Wells Fargo
Capital II, and Wells Fargo Capital III-Registration Statement on
Form S-3 filed with the Securities and Exchange Commission on
October 31, 1996
Ladies and Gentlemen:
In connection with the registration by you pursuant to the above
referenced Registration Statement under the Securities Act of 1933, as amended,
of debentures, guarantees, debt securities, preferred stock and common stock of
Wells Fargo & Company, and Quarterly Income Preferred Securities of Wells Fargo
Capital I, Wells Fargo Capital II and Wells Fargo Capital III, (collectively the
"Offered Securities") with an aggregate public offering price of $750,000,000 we
advise you that, in our opinion, when the Offered Securities have been issued
and sold as contemplated by the above Registration Statement and upon the
receipt of the requisite consideration therefor, the Offered Securities will be
valid and legally binding obligations of Wells Fargo & Company, and Wells Fargo
Capital I, Wells Fargo Capital II and Wells Fargo Capital III, respectively,
and, if applicable, fully paid and nonassessable.
<PAGE>
December 3, 1996
Page 2
Wells Fargo & Company
Wells Fargo Capital I
Wells Fargo Capital II
Wells Fargo Capital III
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the captions
"Validity of Securities" and "Legal Opinions" therein.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 5(b)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 3, 1996
Wells Fargo Capital I
c/o Wells Fargo & Company
420 Montgomery Street
San Francisco, CA 94163
Re: Wells Fargo Capital I
---------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Wells Fargo & Company, a
Delaware corporation (the "Company"), and Wells Fargo Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of October 30,
1996, as filed in the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on October 30, 1996;
(b) The Trust Agreement of the Trust, dated as of October 30, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
Wells Fargo Capital I
December 3, 1996
Page 2
(c) The Appointment of Substitute Trustees, dated as of November 20,
1996, among the resigning trustee of the Trust and the additional trustees of
the Trust named therein;
(d) The Restated Certificate of Trust of the Trust, dated as of
November 20, 1996 (the "Certificate"), as filed in the office of the Secretary
of State on November 20, 1996;
(e) The Removal and Appointment of Trustee of the Trust, dated as of
December 2, 1996;
(f) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus")
and preliminary prospectus supplement, relating to the __% Cumulative Quarterly
Income Preferred Securities, Series A, of the Trust representing preferred
undivided beneficial interest in the assets of the Trust (each, a "Preferred
Security" and collectively, the "Preferred Securities"), as proposed to be filed
by the Company, the Trust and others as set forth therein with the Securities
and Exchange Commission on or about December 3, 1996;
(g) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto)(the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(h) A Certificate of Good Standing for the Trust, dated December 3,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (h) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (h) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our own
but rather have relied solely upon the foregoing documents, the statements and
information set forth therein and the additional
<PAGE>
Wells Fargo Capital I
December 3, 1996
Page 3
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i)
the authenticity of all documents submitted to us as authentic originals, (ii)
the conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
<PAGE>
Wells Fargo Capital I
December 3, 1996
Page 4
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of Securities"
in the Prospectus. In giving the foregoing consents, we do not thereby admit
that we come within the category of Persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
<PAGE>
Exhibit 5(c)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 3, 1996
Wells Fargo Capital II
c/o Wells Fargo & Company
420 Montgomery Street
San Francisco, CA 94163
Re: Wells Fargo Capital II
----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Wells Fargo & Company, a
Delaware corporation (the "Company"), and Wells Fargo Capital II, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of October 30,
1996, as filed in the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on October 30, 1996;
(b) The Trust Agreement of the Trust, dated as of October 30, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
Wells Fargo Capital II
December 3, 1996
Page 2
(c) The Appointment of Substitute Trustees, dated as of November
20, 1996, among the resigning trustee of the Trust and the additional trustees
of the Trust named therein;
(d) The Restated Certificate of Trust of the Trust, dated as of
November 20, 1996 (the "Certificate"), as filed in the office of the Secretary
of State on November 20, 1996;
(e) The Removal and Appointment of Trustee of the Trust, dated
as of December 2, 1996;
(f) Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the __% Cumulative Quarterly Income Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others as set forth therein with the Securities and Exchange Commission on or
about December 3, 1996;
(g) A form of Amended and Restated Trust Agreement of the Trust,
to be entered into among the Company, as Depositor, the trustees of the Trust
named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, C and E thereto)
(the "Trust Agreement"), attached as an exhibit to the Registration Statement;
and
(h) A Certificate of Good Standing for the Trust, dated December
3, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (h) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (h) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
<PAGE>
Wells Fargo Capital II
December 3, 1996
Page 3
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
<PAGE>
Wells Fargo Capital II
December 3, 1996
Page 4
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
BJK/dgw
<PAGE>
EXHIBIT 5(d)
[LETTERHEAD OF RICHARDS, LAYTON & FINGER]
December 3, 1996
Wells Fargo Capital III
c/o Wells Fargo & Company
420 Montgomery Street
San Francisco, CA 94163
Re: Wells Fargo Capital III
-----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for Wells Fargo & Company,
a Delaware corporation (the "Company"), and Wells Fargo Capital III, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of October 30,
1996, as filed in the office of the Secretary of State of the State of Delaware
(the "Secretary of State") on October 30, 1996.
(b) The Trust Agreement of the Trust, dated as of October 30, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
Wells Fargo Capital III
December 3, 1996
Page 2
(c) The Appointment of Substitute Trustees, dated as of November 20,
1996, among the resigning trustee of the Trust and the additional trustees of
the Trust named therein;
(d) The Restated Certificate of Trust of the Trust, dated as of
November 20, 1996 (the "Certificate"), as filed in the office of the Secretary
of State on November 20, 1996;
(e) The Removal and Appointment of Trustee of the Trust, dated as of
December 2, 1996;
(f) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 3, 1996;
(g) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(h) A Certificate of Good Standing for the Trust, dated December 3,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (h) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (h) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional
<PAGE>
Wells Fargo Capital III
December 3, 1996
Page 3
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
<PAGE>
Wells Fargo Capital III
December 3, 1996
Page 4
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, 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. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the rules
and regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
BJK/dgw
<PAGE>
Exhibit 8(a)
December 3, 1996
Wells Fargo & Company
Wells Fargo Capital I
420 Montgomery Street
San Francisco, CA 94163
Ladies and Gentlemen:
We have acted as counsel to Wells Fargo & Company (the "Company") and Wells
Fargo Capital I (the "Trust") in connection with the proposed issuance of (i)
Junior Subordinated Deferrable Interest Debentures, Series A (the "Series A Sub
ordinated Debentures") of the Company pursuant to the terms of an indenture
between the Company and The First National Bank of Chicago (the "Indenture");
and (ii) Cumu lative Quarterly Income Preferred Securities, Series A (the
"Series A QUIPS") to be issued by the Trust. The Series A Subordinated
Debentures and the Series A QUIPS are described in the registration statement on
Form S-3 (Registration No. 333-15253) filed by the Company and the Trust with
the Securities and Exchange Commission on October 31, 1996 (as amended, the
"Registration Statement"). (Capitalized terms used herein that are not
otherwise defined herein have the meaning assigned to such terms in the
Registration Statement.)
In rendering the opinion set forth below, we have examined copies,
certified or otherwise identified to our satisfaction, of the following executed
documents and are relying upon the truth and accuracy of the statements,
covenants, representations and warranties set forth therein:
1. The Registration Statement;
2. The Amended and Restated Trust Agreement among the Company, The
First National Bank of Chicago, First Chicago Delaware, Inc.,
Rodney L. Jacobs, Guy Rounsaville, Jr., and Clyde W. Ostler (the
"Trust Agreement");
3. The Indenture;
<PAGE>
4. Certain statements and representations contained in the Company's
Representation Certificate attached hereto; and
5. Such other agreements and documents as we have considered
necessary or appropriate for the purpose of rendering the opinion
set forth below.
In addition, we have assumed that (i) The Trust Agreement has been
validly executed, will be binding and enforceable in accordance with its terms
and will not be amended in any material respect; and (ii) the Trust will at all
times be operated in accordance with the terms of the Trust Agreement.
Based on and subject to the foregoing, we are of the opinion that the
Trust will not be classified as an association taxable as a corporation for
federal income tax purposes and, instead, under Subpart E, Part I of Subchapter
J of the Code, will be treated as a grantor trust, and the beneficial owners of
the Series A QUIPS will be treated as owning undivided pro rata interests in the
income and corpus of the Trust.
We are also of the opinion that the statements of law and legal
conclusions set forth in the Prospectus Supplement constituting part of the
Registration Statement under the caption "Certain Federal Income Tax
Consequences" constitute an accurate summary of the United States federal income
tax matters described therein relating to the tax treatment of beneficial owners
of Series A QUIPS.
We express no opinion as to other tax issues affecting the holders of
the Series A QUIPS or the other parties to the transactions described in the
Registration Statement, nor does our opinion address state, local or foreign tax
consequences that may result from such transactions.
Our opinion represents only our best judgment regarding the
application of federal income tax laws under the Internal Revenue Code of 1986,
as amended (the "Code"), existing judicial decisions, administrative regulations
and published rulings and procedures. We note that there is no authority
directly on point dealing with securities such as the Series A Subordinated
Debentures or the Series A QUIPS or transactions of the type described herein.
Our opinion is not binding upon the Internal Revenue Service or the courts, and
there is no assurance that the Internal Revenue Service will not successfully
assert contrary positions. Furthermore, no assurance can be given that future
legislative, judicial decisions or administrative changes, applicable either on
a prospective or retroactive basis, might not materially alter our opinion.
We consent to the use of this opinion for filing as an exhibit to the
Regis tration Statement and further consent to all references to us in the
Registration State ment. Subject to the foregoing sentence, this opinion is
given as of the date hereof solely
<PAGE>
Wells Fargo & Company December 3, 1996
Wells Fargo Capital I Page 3
for your benefit and may not be relied upon, circulated, quoted or otherwise
referred to for any purpose without our prior written consent.
Respectfully,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
REPRESENTATION CERTIFICATE
The undersigned officer of Wells Fargo & Company (the "Company")
understands that, in connection with the Registration Statement on Form S-3
(Registration No. 333-15253) (as amended, the "Registration Statement") related
to the issuance and sale of the Cumulative Quarterly Income Preferred
Securities, Series A (the "Series A QUIPS") by Wells Fargo Capital I, a business
trust formed under the laws of the State of Delaware (the "Trust"), Brobeck,
Phleger & Harrison LLP, counsel to the Company and the Trust, will render its
opinion (the "Tax Opinion") with respect to certain material United States
federal income tax consequences to the beneficial owners of the Series A QUIPS.
The undersigned, recognizing that counsel will rely on this certificate in
delivering the Tax Opinion, hereby makes the following representations as of
this date and to the best of his knowledge and belief after due inquiry and
investigation as to such matters. (Capitalized terms used and not otherwise
defined herein shall have the same meanings ascribed to such terms in the
Registration Statement.)
1. The Company and Trust intend to create a debtor-creditor
relationship between the Company, as debtor, and the Trust, as a creditor, upon
the issuance and sale of the Junior Subordinated Deferrable Interest Debentures,
Series A (the "Series A Subordinated Debentures") to the Trust by the Company,
and the Company will (i) record and at all times continue to reflect the Series
A Subordinated Debentures as indebtedness on its separate books and records for
financial accounting purposes and (ii) treat the Series A Subordinated
Debentures as indebtedness for all United States tax purposes.
2. The sole assets of the Trust will be the Series A Subordinated
Debentures and payments on and proceeds from the Series A Subordinated
Debentures (which payments and proceeds will be promptly distributed to the
holders of the Series A QUIPS). The Trust will not reinvest any such payments
on or proceeds from the Series A Subordinated Debentures.
3. The Company has no present intent to exercise its right to defer
payments of interest on the Series A Subordinated Debentures.
4. The Company believes that the likelihood that it will at any time
exercise its right to defer payments of interest on the Series A Subordinated
Debentures is remote because of the restrictions that would be imposed on the
Company's ability to pay dividends on its outstanding equity in the event it
elected to defer payments of interest on the Series A Subordinated Debentures.
5. The Series A QUIPS issued by the Trust are expected to be rated
"investment grade" by at least one nationally recognized statistical credit
rating agency.
Page 1
<PAGE>
6. The Company expects that it will be able to cause its wholly owned
subsidiaries to pay dividends to the Company in amounts and at times sufficient
to enable the Company to make timely payments of interest and principal on the
Series A Subordinated Debentures.
The Company acknowledges that if any of the foregoing representations
is inaccurate, the Tax Opinion may not accurately describe the proper United
States federal income tax treatment of the Series A Subordinated Debentures and
the Series A QUIPS and the discussion set forth in the Prospectus Supplement
constituting part of the Registration Statement under the caption "Certain
Federal Income Tax Consequences" may not accurately describe the United States
federal income tax consequences of the transactions described in the
Registration Statement. The Company will promptly and timely notify Brobeck,
Phleger & Harrison LLP if it discovers that any of the above representations
ceases to be true, correct or complete.
WELLS FARGO & COMPANY
By /s/ Paul Ardleigh
----------------------------
Dated: December 3, 1996 Title Vice President
------------------ -------------------------
Page 2
<PAGE>
EXHIBIT 12(a)
WELLS FARGO & COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Nine months
Quarter ended ended
Sept. 30, Sept. 30,
------------- ---------------
(in millions) 1996 1995 1996 1995
- -------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Earnings, including interest on deposits (1):
Income before income tax expense $ 598 $ 460 $1,723 $1,239
Fixed charges 584 372 1,526 1,135
------ ----- ------ ------
$1,182 $ 832 $3,249 $2,374
====== ===== ====== ======
Fixed charges (1):
Interest expense $ 552 $ 356 $1,440 $1,087
Estimated interest component of net
rental expense 32 16 86 48
------ ----- ------ ------
$ 584 $ 372 $1,526 $1,135
====== ===== ====== ======
Ratio of earnings to fixed charges (2) 2.02 2.24 2.13 2.09
====== ===== ====== ======
Earnings, excluding interest on deposits:
Income before income tax expense $ 598 $ 460 $1,723 $1,239
Fixed charges 138 118 386 385
====== ===== ====== ======
$ 736 $ 578 $2,109 $1,624
====== ===== ====== ======
Fixed charges (1):
Interest expense $ 552 $ 356 $1,440 $1,087
Less interest on deposits (446) (254) (1,140) (750)
Estimated interest component of net
rental expense 32 16 86 48
------ ----- ------ ------
$ 138 $ 118 $ 386 $ 385
====== ===== ====== ======
Ratio of earnings to fixed charges (2) 5.34 4.90 5.46 4.22
====== ===== ====== ======
</TABLE>
- -------------------------------------------------------------------------------
(1) As defined in Item 503(d) of Regulation S-K.
(2) These computations are included herein in compliance with Securities and
Exchange Commission regulations. However, management believes that fixed
charge ratios are not meaningful measures for the business of the Company
because of two factors. First, even if there was no change in net income,
the ratios would decline with an increase in the proportion of income which
is tax-exempt or, conversely, they would increase with a decrease in the
proportion of income which is tax-exempt. Second, even if there was no
change in net income, the ratios would decline if interest income and
interest expense increase by the same amount due to an increase in the
level of interest rates or, conversely, they would increase if interest
income and interest expense decrease by the same amount due to a decrease
in the level of interest rates.
<PAGE>
EXHIBIT 12(b)
WELLS FARGO & COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
AND PREFERRED DIVIDENDS
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Quarter Nine months
ended Sept. 30, ended Sept. 30,
-------------- ---------------
(in millions) 1996 1995 1996 1995
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Earnings, including interest on deposits (1):
Income before income tax expense $ 598 $ 460 $1,723 $1,239
Fixed charges 584 372 1,526 1,135
------ ------ ------ ------
$1,182 $ 832 $3,249 $2,374
------ ------ ------ ------
Preferred dividend requirement $ 19 $ 10 $ 47 $ 31
Ratio of income before income tax expense to net income 1.86 1.76 1.82 1.71
------ ------ ------ ------
Preferred dividends (2) $ 34 $ 18 $ 85 $ 53
------ ------ ------ ------
Fixed charges (1):
Interest expense 552 356 1,440 1,087
Estimated interest component of net rental expense 32 16 86 48
------ ------ ------ ------
584 372 1,526 1,135
------ ------ ------ ------
Fixed charges and preferred dividends $ 618 $ 390 $1,611 $1,188
------ ------ ------ ------
Ratio of earnings to fixed charges and preferred dividends (3) 1.91 2.13 2.02 2.00
------ ------ ------ ------
Earnings, excluding interest on deposits:
Income before income tax expense $ 598 $ 460 $1,723 $1,239
Fixed charges 138 118 386 385
------ ------ ------ ------
$ 736 $ 578 $2,109 $1,624
------ ------ ------ ------
Preferred dividends (2) $ 34 $ 18 $ 85 $ 53
Fixed charges (1): ------ ------ ------ ------
Interest expense 552 356 1,440 1,087
Less interest on deposits (446) (254) (1,140) (750)
Estimated interest component of net rental expense 32 16 86 48
------ ------ ------ ------
138 118 386 385
------ ------ ------ ------
Fixed charges and preferred dividends $ 172 $ 136 $ 471 $ 438
------ ------ ------ ------
Ratio of earnings to fixed charges and preferred dividends (3) 4.28 4.25 4.48 3.71
------ ------ ------ ------
- ------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) As defined in Item 503(d) of Regulation S-K.
(2) The preferred dividends were increased to amounts representing the pretax
earnings that would be required to cover such dividend requirements.
(3) These computations are included herein in compliance with Securities and
Exchange Commission regulations. However, management believes that fixed
charge ratios are not meaningful measures for the business of the Company
because of two factors. First, even if there was no change in net income,
the ratios would decline with an increase in the proportion of income which
is tax-exempt or, conversely, they would increase with a decrease in the
proportion of income which is tax-exempt. Second, even if there was no
change in net income, the ratios would decline if interest income and
interest expense increase by the same amount due to an increase in the
level of interest rates or, conversely, they would increase if interest
income and interest expense decrease by the same amount due to a decrease
in the level of interest rates.
<PAGE>
EXHIBIT 23(a)
The Board of Directors
Wells Fargo & Company:
We consent to the incorporation by reference in the Registration Statement on
Form S-3 (No. 333-15253) as amended of Wells Fargo & Company of our report
dated January 16, 1996 except as to Note 15, which is as of February 27, 1996,
incorporated by reference in the Annual Report on Form 10-K of Wells Fargo &
Company for the year ended December 31, 1995 and to the reference of our firm
under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
San Francisco, CA
December 3, 1996
<PAGE>
Exhibit 23(b)
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3, No. 333-15253) and related Prospectuses of
Wells Fargo & Company for the registration of its Senior Debt Securities,
Subordinated Debt Securities, and Preferred Stock and of its Junior Subordinated
Deferrable Interest Debentures and the incorporation by reference therein of our
report dated January 23, 1996 with respect to the consolidated financial
statements of First Interstate Bancorp incorporated by reference in its Annual
Report (Form 10-K) for the year ended December 31, 1995 filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
December 2, 1996
<PAGE>
EXHIBIT 25(a)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO & COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2553920
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
SUBORDINATED DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
--------------------
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
------------------------------
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
-----------------
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not Applicable.
2
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Wells Fargo &
Company and The First National Bank of Chicago, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date:06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------ Less
THOUSANDS RCFD BIL MIL THOU Than -
----------------- ---- ------------ -------
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and
coin(1)............................................. 0081 3,572,641 1.a.
b. Interest-bearing balances(2)........................ 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A)........................................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D)........................................... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold.................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell..... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C)...................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses........... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve............... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b
and 4.c)............................................ 2125 18,745,928 4.d.
5. Assets held in trading accounts........................ 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized
leases)................................................ 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)........... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M).............. 2130 57,280 8.
9. Customers' liability to this bank on acceptances 2155 632,259 9.
outstanding............................................
10. Intangible assets (from Schedule RC-M)................. 2143 156,715 10.
11. Other assets (from Schedule RC-F)...................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)............... 2170 49,335,206 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
--------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)..................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)....................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).............................. RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased......................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase.................. RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury........................ RCON 2840 104,546 15.a.
b. Trading Liabilities............................................. RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less...................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year.................... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized leases..... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding............ RCFD 2920 632,259 18.
19. Subordinated notes and debentures.................................. RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)............................. RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)..................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................... RCFD 3838 0 23.
24. Common stock....................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves.......................... RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments................ RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................. RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external.
Number
auditors as of any date during 1995................................. RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accountants firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(b)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO CAPITAL I
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-6701193
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
2
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Wells Fargo
Capital I and The First National Bank of Chicago, the undersigned, in accordance
with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby
consents that the reports of examinations of the undersigned, made by Federal or
State authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400 (less
---- than)-
THOUSANDS RCFD BIL MIL THOU ------
------------------ ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency
and coin(1)......................................... 0081 3,572,641 1.a.
b. Interest-bearing balances(2)........................ 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule
RC-B, column A)..................................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule
RC-B, column D)..................................... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold.................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell..... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C).................................. RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses........... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve.......... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b
and 4.c)............................................ 2125 18,745,928 4.d.
5. Assets held in trading accounts........................ 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized
leases)................................................ 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)........... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M).............. 2130 57,280 8.
9. Customers' liability to this bank on acceptances
outstanding............................................ 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)................. 2143 156,715 10.
11. Other assets (from Schedule RC-F)...................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)............... 2170 49,335,206 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
--------- -------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns
A and C from Schedule RC-E, part 1)................. RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)......................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing................................ RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E, part II)...................................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing............................ RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................... RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased............................. RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to
repurchase.......................................... RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury............ RCON 2840 104,546 15.a.
b. Trading Liabilities................................. RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year
or less............................................. RCFD 2332 4,437,636 16.a.
b. With original maturity of more than
one year............................................ RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under
capitalized leases..................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed
and outstanding........................................ RCFD 2920 632,259 18.
19. Subordinated notes and debentures...................... RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)................. RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13
through 20)............................................ RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and
related surplus........................................ RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus.......... RCFD 3838 0 23.
24. Common stock........................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to
preferred stock)....................................... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves.............. RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses)
on available-for-sale securities.................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation
adjustments............................................ RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23
through 27)............................................ RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, and 28)....... RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed for
the bank by independent external Number
---------------
auditors as of any date during 1995..............................................RCFD 6724... N/A M.1.
---------------
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(C)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO CAPITAL II
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-6701194
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
2
<PAGE>
9. Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and the State
of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Wells Fargo
Capital II and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
<S> <C> <C>
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION> C400 {-
DOLLAR AMOUNTS IN -------- ------
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
ASSETS
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency
and coin(1)............................................... 0081 3,572,641 1.a.
b. Interest-bearing balances(2).............................. 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule
RC-B, column A)........................................... 1754 0 2.a.
b. Available-for-sale securities (from
Schedule RC-B, column D).................................. 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold........................................ 0276 5,020,878 3.a.
b. Securities purchased under agreements to
resell.................................................... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)..................................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for
loan and lease losses..................................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve..................... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance,
and reserve (item 4.a minus 4.b and 4.c).................. 2125 18,745,928 4.d.
5. Assets held in trading accounts.............................. 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases)..... 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)................. 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)............................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding. 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)...................... 2143 156,715 10.
11. Other assets (from Schedule RC-F)........................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11).................... 2170 49,335,206 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
--------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of
columns A and C from Schedule RC-E,
part 1)......................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)....................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule
RC-E, part II).................................. RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal funds purchased......................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to
repurchase...................................... RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury........ RCON 2840 104,546 15.a.
b. Trading Liabilities............................. RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year
or less......................................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than
one year........................................ RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations
under capitalized leases.......................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and
outstanding....................................... RCFD 2920 632,259 18.
19. Subordinated notes and debentures................. RCFD 2920 1,275,000 19.
20. Other liabilities (from Schedule RC-G)............ RCFD 3200 892,947 20.
21. Total liabilities (sum of items 13
through 20)....................................... RCFD 2930 46,205,005 21.
22. Limited-Life preferred stock and
related surplus................................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock
and related surplus............................... RCFD 3838 0 23.
24. Common stock...................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus
related to preferred stock)....................... RCFD 3839 2,349,164 25.
26. a. Undivided profits and
capital reserves................................. RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities.................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation
adjustments......................................... RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)... RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, and 28).... RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the
bank by independent external Number
auditors as of any date during 1995 RCFD 6724 [N/A ] M.1.
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
auditors standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(d)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO CAPITAL III
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 94-6701195
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
PREFERRED SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
2
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Wells Fargo
Capital III and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date:06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------ Less
THOUSANDS RCFD BIL MIL THOU Than -
----------------- ---- ------------ -------
<S> <C> <C> <C> <C>
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and
coin(1)............................................. 0081 3,572,641 1.a.
b. Interest-bearing balances(2)........................ 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A)........................................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D)........................................... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold.................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell..... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C)...................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses........... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve............... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b
and 4.c)............................................ 2125 18,745,928 4.d.
5. Assets held in trading accounts........................ 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized
leases)................................................ 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)........... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M).............. 2130 57,280 8.
9. Customers' liability to this bank on acceptances 2155 632,259 9.
outstanding............................................
10. Intangible assets (from Schedule RC-M)................. 2143 156,715 10.
11. Other assets (from Schedule RC-F)...................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)............... 2170 49,335,206 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
--------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)..................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)....................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).............................. RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased......................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase.................. RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury........................ RCON 2840 104,546 15.a.
b. Trading Liabilities............................................. RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less...................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year.................... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized leases..... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding............ RCFD 2920 632,259 18.
19. Subordinated notes and debentures.................................. RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)............................. RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)..................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................... RCFD 3838 0 23.
24. Common stock....................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves.......................... RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments................ RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................. RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external.
Number
auditors as of any date during 1995................................. RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Director's examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accountants firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------------
(1) Includes total demand deposits and noninterested-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(e)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO & COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2553920
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES OF
WELLS FARGO CAPITAL I
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
--------------------
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
------------------------------
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
-----------------
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not Applicable.
2
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and the State
of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement between Wells
Fargo & Company and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------ Less
THOUSANDS RCFD BIL MIL THOU Than -
----------------- ---- ------------ -------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and
coin(1)............................................. 0081 3,572,641 1.a.
b. Interest-bearing balances(2)........................ 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A)........................................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D)........................................... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold.................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell..... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C)...................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses........... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve............... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b
and 4.c)............................................ 2125 18,745,928 4.d.
5. Assets held in trading accounts........................ 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized
leases)................................................ 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)........... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M).............. 2130 57,280 8.
9. Customers' liability to this bank on acceptances 2155 632,259 9.
outstanding............................................
10. Intangible assets (from Schedule RC-M)................. 2143 156,715 10.
11. Other assets (from Schedule RC-F)...................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)............... 2170 49,335,206 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
--------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A
and C from Schedule RC-E, part 1).................. RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1).......................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing................................ RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs (from Schedule RC-E,
part II)........................................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing............................. RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing................................ RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal funds purchased............................ RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase..... RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury........... RCON 2840 104,546 15.a.
b. Trading Liabilities................................ RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less......... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year....... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under
capitalized leases.................................... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and
outstanding........................................... RCFD 2920 632,259 18.
19. Subordinated notes and debentures..................... RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)................ RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)........ RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus...... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus......... RCFD 3838 0 23.
24. Common stock.......................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred
stock)................................................ RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves............. RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities...................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments... RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27).... RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock,
and equity capital (sum of items 21, 22, and 28)...... RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external.
Number
auditors as of any date during 1995................................. RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Director's examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accountants firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------------
(1) Includes total demand deposits and noninterested-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(f)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO & COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2553920
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES OF
WELLS FARGO CAPITAL II
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
2
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national banking
association organized and existing under the laws of the United States of
America, has duly caused this Statement of Eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of Chicago
and the State of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement between Wells
Fargo & Company and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400 less
DOLLAR AMOUNTS IN ------------ than -
THOUSANDS RCFD BIL MIL THOU ------
--------------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1)............. 0081 3,572,641 1.a.
b. Interest-bearing balances(2)...................................... 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B, column A)........ 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)...... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold................................................ 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell................... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C)............................................................. RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses......................... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve............................. RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c).............................. 2125 18,745,928 4.d.
5. Assets held in trading accounts...................................... 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized leases)............. 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)......................... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M)....................................... 2130 57,280 8.
9. Customers' liability to this bank on acceptances outstanding......... 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)............................... 2143 156,715 10.
11. Other assets (from Schedule RC-F).................................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)............................. 2170 49,335,206 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
------------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)................................ ROCN 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)................................. RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing....................................... RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II)......................... RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing....................................... RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased.................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase............. RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury................... RCON 2840 104,546 15.a.
b. Trading Liabilities........................................ RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less................. RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year............... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases........................................................ RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding....... RCFD 2920 632,259 18.
19. Subordinated notes and debentures............................. RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)........................ RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)................ RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus.............. RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus................. RCFD 3838 0 23.
24. Common stock.................................................. RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)...... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves..................... RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities................................................. RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments........... RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)............. RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)......................... RCFD 3300 49,335,206 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for
the bank by independent external
Number
auditors as of any date during 1995................RCFD 6724..N/A M.1.
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4. = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority.
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statement by external
submits a report on the consolidated holding company auditors
(but not on the bank separately 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
- -------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(g)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
WELLS FARGO & COMPANY
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-2553920
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
GUARANTEE OF PREFERRED SECURITIES OF
WELLS FARGO CAPITAL III
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
--------------------
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C., Federal Deposit Insurance
Corporation, Washington, D.C., The Board of Governors of the Federal
Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE
------------------------------
TRUSTEE, DESCRIBE EACH SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS
-----------------
STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now in effect.*
2. A copy of the certificates of authority of the trustee to commence
business.*
3. A copy of the authorization of the trustee to exercise corporate
trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of the Act.
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
8. Not Applicable.
2
<PAGE>
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended,
the trustee, The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, has duly
caused this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago and the State
of Illinois, on this 14th day of November, 1996.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
By /s/ John R. Prendiville
John R. Prendiville
Vice President
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS BEARING
IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK OF
CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA, INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
25, 1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
November 14, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of a Guarantee Agreement between Wells
Fargo & Company and The First National Bank of Chicago, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ John R. Prendiville
John R. Prendiville
Vice President
4
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/96 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
DOLLAR AMOUNTS IN ------------ Less
THOUSANDS RCFD BIL MIL THOU Than -
----------------- ---- ------------ -------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and
coin(1)............................................. 0081 3,572,641 1.a.
b. Interest-bearing balances(2)........................ 0071 6,958,367 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A)........................................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D)........................................... 1773 1,448,974 2.b.
3. Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and its Edge and Agreement subsidiaries, and in IBFs:
a. Federal Funds sold.................................. 0276 5,020,878 3.a.
b. Securities purchased under agreements to resell..... 0277 918,688 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from
Schedule RC-C)...................................... RCFD 2122 19,125,160 4.a.
b. LESS: Allowance for loan and lease losses........... RCFD 3123 379,232 4.b.
c. LESS: Allocated transfer risk reserve............... RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b
and 4.c)............................................ 2125 18,745,928 4.d.
5. Assets held in trading accounts........................ 3545 9,599,172 5.
6. Premises and fixed assets (including capitalized
leases)................................................ 2145 623,289 6.
7. Other real estate owned (from Schedule RC-M)........... 2150 8,927 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M).............. 2130 57,280 8.
9. Customers' liability to this bank on acceptances
outstanding............................................ 2155 632,259 9.
10. Intangible assets (from Schedule RC-M)................. 2143 156,715 10.
11. Other assets (from Schedule RC-F)...................... 2160 1,592,088 11.
12. Total assets (sum of items 1 through 11)............... 2170 49,335,206 12.
- ------------------
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE RC-CONTINUED DOLLAR AMOUNTS IN
Thousands BIL MIL THOU
--------- ------------
<S> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1)..................................... RCON 2200 16,878,870 13.a.
(1) Noninterest-bearing(1)....................................... RCON 6631 7,855,880 13.a.(1)
(2) Interest-bearing............................................. RCON 6636 9,022,990 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II).............................. RCFN 2200 12,677,057 13.b.
(1) Noninterest bearing.......................................... RCFN 6631 766,936 13.b.(1)
(2) Interest-bearing............................................. RCFN 6636 11,910,121 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased......................................... RCFD 0278 1,318,968 14.a.
b. Securities sold under agreements to repurchase.................. RCFD 0279 1,197,589 14.b.
15. a. Demand notes issued to the U.S. Treasury........................ RCON 2840 104,546 15.a.
b. Trading Liabilities............................................. RCFD 3548 6,431,784 15.b.
16. Other borrowed money:
a. With original maturity of one year or less...................... RCFD 2332 4,437,636 16.a.
b. With original maturity of more than one year.................... RCFD 2333 75,308 16.b.
17. Mortgage indebtedness and obligations under capitalized leases..... RCFD 2910 283,041 17.
18. Bank's liability on acceptance executed and outstanding............ RCFD 2920 632,259 18.
19. Subordinated notes and debentures.................................. RCFD 3200 1,275,000 19.
20. Other liabilities (from Schedule RC-G)............................. RCFD 2930 892,947 20.
21. Total liabilities (sum of items 13 through 20)..................... RCFD 2948 46,205,005 21.
22. Limited-Life preferred stock and related surplus................... RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus...................... RCFD 3838 0 23.
24. Common stock....................................................... RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock)........... RCFD 3839 2,349,164 25.
26. a. Undivided profits and capital reserves.......................... RCFD 3632 584,878 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities................................... RCFD 8434 (3,951) 26.b.
27. Cumulative foreign currency translation adjustments................ RCFD 3284 (748) 27.
28. Total equity capital (sum of items 23 through 27)................. RCFD 3210 3,130,201 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28).............................. RCFD 3300 49,335,206 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below
that best describes the most comprehensive level of auditing work
performed for the bank by independent external.
Number
auditors as of any date during 1995................................. RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
<PAGE>
EXHIBIT 25(h)
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
WELLS FARGO & COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 13-2553920
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
420 MONTGOMERY STREET
SAN FRANCISCO, CALIFORNIA 94163
(Address of principal executive offices) (Zip Code)
___________________________________________
SENIOR DEBT SECURITIES
(Title of the indenture securities)
_____________________________________________________
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
(On July 14, 1996, in connection with the merger of Chemical Bank and The Chase
Manhattan Bank (National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 12TH day of NOVEMBER, 1996.
THE CHASE MANHATTAN BANK
By /s/ Ronald Sarubbi
---------------------------
Ronald Sarubbi
Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1996, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
IN MILLIONS
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ..................................... $ 4,167
Interest-bearing balances ............................. 5,094
Securities: .............................................
Held to maturity securities.............................. 3,367
Available for sale securities............................ 27,786
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold..................................... 7,204
Securities purchased under agreements to resell........ 136
Loans and lease financing receivables:
Loans and leases, net of unearned income $67,215
Less: Allowance for loan and lease losses 1,768
Less: Allocated transfer risk reserve.............. 75
-------
Loans and leases, net of unearned income,
allowance, and reserve................................. 65,372
Trading Assets........................................... 28,610
Premises and fixed assets (including capitalized
leases)................................................ 1,326
Other real estate owned.................................. 26
Investments in unconsolidated subsidiaries and
associated companies................................... 68
Customer's liability to this bank on acceptances
outstanding............................................ 995
Intangible assets........................................ 309
Other assets............................................. 6,993
--------
TOTAL ASSETS............................................. $151,453
========
</TABLE>
- 4 -
<PAGE>
<TABLE>
<S> <C>
LIABILITIES
Deposits
In domestic offices.................................... $ 46,917
Noninterest-bearing....................................$16,711
Interest-bearing....................................... 30,206
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's.............................................. 31,577
Noninterest-bearing ...................................$ 2,197
Interest-bearing....................................... 29,380
-------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased................................ 12,155
Securities sold under agreements to repurchase......... 8,536
Demand notes issued to the U.S. Treasury................. 1,000
Trading liabilities...................................... 20,914
Other Borrowed money:
With a remaining maturity of one year or less.......... 10,018
With a remaining maturity of more than one year........ 192
Mortgage indebtedness and obligations under capitalized
leases................................................. 12
Bank's liability on acceptances executed and outstanding. 1,001
Subordinated notes and debentures........................ 3,411
Other liabilities........................................ 8,091
TOTAL LIABILITIES........................................ 143,824
--------
EQUITY CAPITAL
Common stock............................................. 620
Surplus.................................................. 4,664
Undivided profits and capital reserves................... 2,970
Net unrealized holding gains (Losses)
on available-for-sale securities......................... (633)
Cumulative foreign currency translation adjustments...... 8
TOTAL EQUITY CAPITAL..................................... 7,629
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL............................... $151,453
========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true to the best of my knowledge and
belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
THOMAS G. LABRECQUE )
- 5 -
<PAGE>
EXHIBIT 25(i)
Conformed Copy
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)
-----------
MARINE MIDLAND BANK
(Exact name of trustee as specified in its charter)
New York 16-1057879
(Jurisdiction of incorporation (I.R.S. Employer
or organization if not a U.S. Identification No.)
national bank)
140 Broadway, New York, N.Y. 10005-1180
(212) 658-1000 (Zip Code)
(Address of principal executive offices)
Eric Parets
Senior Vice President
Marine Midland Bank
140 Broadway
New York, New York 10005-1180
Tel: (212) 658-6560
(Name, address and telephone number of agent for service)
WELLS FARGO & COMPANY
(Exact name of obligor as specified in its charter)
Delaware 13-2553920
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
420 Montgomery Street
San Francisco, California 94163
(415) 477-1000 (Zip Code)
(Address of principal executive offices)
DEBT SECURITIES
(Title of Indenture Securities)
<PAGE>
General
Item 1. General Information.
--------------------
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervisory authority to
which it is subject.
State of New York Banking Department.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of the Federal Reserve System,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
--------------------------
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None
<PAGE>
Item 16. List of Exhibits.
-----------------
<TABLE>
<CAPTION>
Exhibit
- -------
<S> <C> <C> <C>
T1A(i) * - Copy of the Organization Certificate of
Marine Midland Bank.
T1A(ii) * - Certificate of the State of New York
Banking Department dated December
31, 1993 as to the authority of Marine
Midland Bank to commence business.
T1A(iii) - Not applicable.
T1A(iv) * - Copy of the existing By-Laws of Marine
Midland Bank as adopted on January
20, 1994.
T1A(v) - Not applicable.
T1A(vi) * - Consent of Marine Midland Bank
required by Section 321(b) of the Trust
Indenture Act of 1939.
T1A(vii) - Copy of the latest report of condition
of the trustee (June 30, 1996),
published pursuant to law or the
requirement of its supervisory or
examining authority.
T1A(viii) - Not applicable.
T1A(ix) - Not applicable.
</TABLE>
* Exhibits previously filed with the Securities and Exchange Commission
with Registration No. 33-53693 and incorporated herein by reference
thereto.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
Marine Midland Bank, a banking corporation and trust company organized under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York on the 8th day of November 1996.
MARINE MIDLAND BANK
By: /s/ Frank J. Godino
-----------------------------------
Frank J. Godino
Assistant Vice President
<PAGE>
<TABLE>
<S> <C>
EXHIBIT T1A (vii)
Board of Governors of the Federal Reserve System
OMB Number: 7100-0036
Federal Deposit Insurance Corporation
OMB Number: 3064-0052
Office of the Comptroller of the Currency
OMB Number: 1557-0081
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL Expires March 31, 1999
- --------------------------------------------------------------------------------------------------------------------------
-------
This financial information has not been reviewed, or confirmed [ 1 ]
for accuracy or relevance, by the Federal Reserve System. Please refer to page I, -------
Table of Contents, for
the required disclosure
of estimated burden.
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
CONSOLIDATED REPORTS OF CONDITION AND INCOME FOR A BANK WITH DOMESTIC AND
FOREIGN OFFICES--FFIEC 031
REPORT AT THE CLOSE OF BUSINESS JUNE 30, 1996
This report is required by law; 12 U.S.C. (S)324 (State member banks);
12 U.S.C. (S)1817 (State nonmember banks); and 12 U.S.C. (S)161 (National
banks).
(950630)
----------
(RCRI 9999)
This report form is to filed by banks with branches and consolidated
subsidiaries in U.S. territories and possessions, Edge or Agreement
subsidiaries, foreign branches, consolidated foreign subsidiaries, or
International Banking Facilities.
- ------------------------------------------------------------------------------
NOTE: The Reports of Condition and Income must be signed by an authorized
consolidated subsidiaries in U.S. territories and possessions, officer and the
Report of Condition must be attested to by not less than two Edge or Agreement
subsidiaries, foreign branches, consoli-dated directors (trustees) for State
nonmember banks and three directors for State member and National Banks.
I, Gerald A. Ronning, Executive VP & Controller
---------------------------------------------------------
Name and Title of Officer Authorized to Sign Report
of the named bank do hereby declare that these Reports of Condition and Income
(including the supporting schedules) have been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and believe.
/s/ Gerald A. Ronning
- ----------------------------------------------
Signature of Officer Authorized to Sign Report
7/25/96
- ----------------------------------------------
Date of Signature
The Reports of Condition and Income are to be prepared in accordance with
Federal regulatory authority instructions. NOTE: These instructions may in some
cases differ from generally accepted accounting principles.
We, the undersigned directors (trustees), attest to the correctness of this
Report of Condition (including the supporting schedules) and declare that it has
been examined by us and to the best of our knowledge and belief has been
prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
/s/ Henry J. Nowak
- ----------------------------------------
Director (Trustee)
/s/ Bernard J. Kennedy
- ----------------------------------------
Director (Trustee)
/s/ Northrup R. Knox
- ----------------------------------------
Director (Trustee)
- ------------------------------------------------------------------------------
FOR BANKS SUBMITTING HARD COPY REPORT FORMS:
STATE MEMBER BANK: Return the original and one copy to the appropriate Federal
Reserve District Bank.
STATE NONMEMBER BANKS: Return the original only in the special return address
envelope provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
NATIONAL BANKS: Return the original only in the special return address envelope
provided. If express mail is used in lieu of the special return address
envelope, return the original only to the FDIC, c/o Quality Data Systems, 2127
Espey Court, Suite 204, Crofton, MD 21114.
- ------------------------------------------------------------------------------
FDIC Certificate Number 0 0 5 8 9
------------------------------------
(RCRI 9030)
<PAGE>
NOTICE
This form is intended to assist institutions with state publication
requirements. It has not been approved by any state banking authorities. Refer
to your appropriate state banking authorities for your state publication
requirements.
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
Marine Midland Bank of Buffalo
Name of Bank City
in the state of New York, at the close of business June 30, 1996
<TABLE>
<CAPTION>
Thousands
of dollars
<S> <C> <C>
ASSETS
Cash and balances due from depository
institutions:
Noninterest-bearing balances
currency and coin.......................... $ 1,133,237
Interest-bearing balances.................. 1,117,267
Held-to-maturity securities................ 0
Available-for-sale securities.............. 3,312,291
Federal Funds sold and securities purchased
under agreements to resell in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds sold......................... 555,000
Securities purchased under
agreements to resell....................... 421,771
Loans and lease financing receivables:
Loans and leases net of unearned
income..................................... 14,765,000
LESS: Allowance for loan and lease
losses..................................... 456,646
LESS: Allocated transfer risk reserve...... 0
Loans and lease, net of unearned
income, allowance, and reserve............. 14,308,354
Trading assets............................. 871,466
Premises and fixed assets (including
capitalized leases)........................ 181,721
Other real estate owned....................... 4,643
Investments in unconsolidated
subsidiaries and associated companies......... 0
Customers' liability to this bank on
acceptances outstanding....................... 23,253
Intangible assets............................. 164,521
Other assets.................................. 460,618
Total assets.................................. 22,554,142
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
LIABILITIES
Deposits:
In domestic offices........................ 14,788,828
Noninterest-bearing........................ 3,061,906
Interest-bearing........................... 11,726,922
In foreign offices, Edge, and Agreement
subsidiaries, and IBFs........................ 3,485,266
Noninterest-bearing........................ 0
Interest-bearing........................... 3,485,266
Federal funds purchased and securities sold
under agreements to repurchase in domestic
offices of the bank and its Edge and
Agreement subsidiaries, and in IBFs:
Federal funds purchased.................... 859,455
Securities sold under agreements to
repurchase................................. 324,584
Demand notes issued to the U.S. Treasury 246,051
Trading Liabilities........................... 415,593
Other borrowed money:
With original maturity of one year
or less.................................... 32,459
With original maturity of more than
one year................................... 0
Mortgage indebtedness and obligations
under capitalized leases...................... 34,193
Bank's liability on acceptances
executed and outstanding...................... 23,253
Subordinated notes and debentures............. 225,000
Other liabilities............................. 326,680
Total liabilities............................. 20,761,362
Limited-life preferred stock and
related surplus............................... 0
EQUITY CAPITAL
Perpetual preferred stock and related
surplus....................................... 0
Common Stock.................................. 185,000
Surplus....................................... 1,633,098
Undivided profits and capital reserves........ (23,953)
Net unrealized holding gains (losses)
on available-for-sale securities.............. (1,365)
Cumulative foreign currency translation
adjustments................................... 0
Total equity capital.......................... 1,792,780
Total liabilities, limited-life
preferred stock, and equity capital........... 22,554,142
</TABLE>
