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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (date of earliest event reported): September 2, 1999
WELLS FARGO & COMPANY
(Exact name of registrant as specified in its charter)
Delaware 001-2979 No. 41-0449260
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification No.)
420 Montgomery Street, San Francisco, California 94163
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 1-800-411-4932
Not applicable
(Former name or former address, if changed since last report)
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Item 7: Financial Statements and Exhibits
On September 2, 1999, Wells Fargo & Company established a Medium-Term
Note Program, Series A and a Subordinated Medium-Term Note Program,
Series B. The purpose of this Current Report is to file with the
Securities and Exchange Commission the Distribution Agreement,
Subordinated Indenture and forms of Notes relating to such Programs.
(c) Exhibits
1.1 Distribution Agreement dated September 2, 1999 among
Wells Fargo & Company and the Agents named therein.
4.1 Indenture dated as of August 30, 1999 between Wells
Fargo & Company and The First National Bank of
Chicago.
4.2 Form of Medium-Term Fixed Rate Note, Series A.
4.3 Form of Medium-Term Floating Rate Note, Series A.
4.4 Form of Subordinated Medium-Term Fixed Rate Note,
Series B.
4.5 Form of Subordinated Medium-Term Floating Rate Note,
Series B.
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SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized, on September 7, 1999.
WELLS FARGO & COMPANY
By /s/ Les L. Quock
------------------------------------
Les L. Quock
Senior Vice President and Controller
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EXHIBIT 1.1
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES, SERIES A DUE
9 MONTHS OR MORE FROM DATE OF ISSUE
SUBORDINATED MEDIUM-TERM NOTES, SERIES B
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
September 2, 1999
Morgan Stanley & Co. Incorporated Donaldson, Lufkin & Jenrette Securities
1585 Broadway Corporation
New York, New York 10036 277 Park Avenue
New York, New York 10172
ABN AMRO Incorporated First Union Capital Markets Corp.
1325 Avenue of the Americas 1 South Penn Square
New York, New York 10019 Philadelphia, Pennsylvania 19107
Banc One Capital Markets Inc. Goldman, Sachs & Co.
One First National Plaza, 85 Broad Street
Suite IL1-0595 New York, New York 10004
Chicago, Illinois 60670
Barclays Capital Inc. HSBC Securities (USA) Inc.
222 Broadway 140 Broadway
New York, New York 10038 New York, New York 10005
Bear, Stearns & Co. Inc. Lehman Brothers Inc.
245 Park Avenue 3 World Financial Center
New York, New York 10167 New York, New York 10285
BNY Capital Markets, Inc. Mellon Financial Markets, Inc.
1 Wall Street, 18th Floor One Mellon Bank Center
New York, New York 10286 Pittsburgh, Pennsylvania 15258
Chase Securities Inc. Salomon Smith Barney Inc.
270 Park Avenue, 8th Floor 388 Greenwich Street
New York, New York 10017 New York, New York 10013
Credit Suisse First Boston Corporation WestLB Panmure Securities Inc.
11 Madison Avenue 1211 Avenue of the Americas
New York, New York 10010 New York, New York 10036
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Dear Sirs:
Wells Fargo & Company, a Delaware corporation (the "Company"), confirms
its agreement with Morgan Stanley & Co. Incorporated, ABN AMRO Incorporated,
Banc One Capital Markets Inc., Barclays Capital Inc., Bear, Stearns & Co. Inc.,
BNY Capital Markets, Inc., Chase Securities Inc., Credit Suisse First Boston
Corporation, Donaldson, Lufkin & Jenrette Securities Corporation, First Union
Capital Markets Corp., Goldman, Sachs & Co., HSBC Securities, Inc., Lehman
Brothers Inc., Mellon Financial Markets, Inc., Salomon Smith Barney Inc. and
WestLB Panmure Securities Inc. (individually, an "Agent", and collectively, the
"Agents") with respect to the issuance and sale by the Company of its
Medium-Term Notes described herein (the "Notes"). The Notes are to be issued
pursuant to an indenture (the "Senior Indenture") dated as of July 21, 1999, as
amended from time to time, between the Company and Citibank, N.A., as trustee
(the "Senior Trustee"), or an indenture (the "Subordinated Indenture" and
together with the Senior Indenture, referred to herein collectively as the
"Indentures") dated as of August 30, 1999, as amended from time to time, between
the Company and The First National Bank of Chicago, as trustee (the
"Subordinated Trustee" and together with the Senior Trustee, referred to herein
collectively as the "Trustees"). As of the date hereof, the Company has
authorized the issuance and sale of up to U.S. $7,150,000,000 aggregate initial
public offering price (or its equivalent, based upon the applicable exchange
rate at the time of issuance, in such foreign currencies or foreign currency
units as the Company shall designate at the time of issuance) of Notes through
the Agents pursuant to the terms of this Agreement. It is understood, however,
that the Company may from time to time authorize the issuance of additional
Notes and that such additional Notes may be sold through or to the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be agreed to
by the Company and any Agent) to any Agent as principal for resale to
purchasers.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-79493) for the registration
of securities, including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the SEC under the 1933 Act (the "1933
Act Regulations"). Such registration statement has been declared effective by
the SEC and each of the Indentures has been qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act"). Such registration statement (and any
further registration statements which may be filed by the Company for the
purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplements relating
to the Notes, including all documents incorporated therein by reference, as from
time to time amended or supplemented by the filing of documents or amendments or
supplements pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering
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of the Notes which is not required to be filed by the Company pursuant to Rule
424(b) of the 1933 Act Regulations, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the Agents
for such use.
SECTION 1. Appointment as Agents.
(a) Appointment of Agents. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell Notes
directly on its own behalf or through any of its affiliated entities and other
agents, the Company hereby appoints the Agents as the agents for the purpose of
soliciting purchases of the Notes from the Company by others and agrees that,
except as otherwise contemplated herein, whenever the Company determines to sell
Notes directly to any Agent as principal for resale to others, it will enter
into a Terms Agreement (hereafter defined) relating to such sale in accordance
with Section 3(b) hereof. No Notes that the Company has agreed to sell pursuant
to this Agreement shall be deemed to have been purchased and paid for or sold by
the Company until such Notes shall have been delivered to the purchaser thereof
against payment by such purchaser. The Company may accept offers to purchase
Notes through an agent other than an Agent; provided, however, that (i) any such
acceptance shall be on substantially the same terms as those set forth herein,
and (ii) the Company shall give each of the Agents notice of its decision to
accept such an offer to purchase Notes promptly following such acceptance.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon
receipt of instructions from the Company, each of the Agents will use its
reasonable efforts to solicit purchases of such principal amount of the Notes as
the Company and such Agent shall agree upon from time to time during the term of
this Agreement, it being understood that the Company shall not approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the principal amount
of Notes registered pursuant to the Registration Statement. The Agents will have
no responsibility for maintaining records with respect to the aggregate
principal amount of Notes sold, or of otherwise monitoring the availability of
Notes for sale under the Registration Statement. Each Agent will communicate to
the Company, orally or in writing, each offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in its
discretion reasonably exercised, to reject any proposed purchase of Notes, as a
whole or in part, and any such rejection shall not be deemed a breach by such
Agent of this Agreement. The Company may accept or reject any proposed purchase
of the Notes, in whole or in part.
(c) Solicitations as Agent; Purchases as Principal. In soliciting
purchases of Notes on behalf of the Company and in performing its other
obligations hereunder (other than with respect to any purchase by an Agent as
principal pursuant to a Terms Agreement), each Agent shall act solely as agent
for the Company and not as principal. Each Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by such Agent and accepted by the Company;
provided, however, that such Agent shall not have any liability to the Company
in the event any such purchase is not consummated for any reason. If the Company
shall default on its obligation to deliver Notes to a purchaser whose offer it
has accepted, the Company shall pay to such Agent the commission it
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would have received had such sale been consummated and the Company shall hold
such Agent harmless against any other loss, claim or damage arising from or as a
result of such default by the Company. The Agents shall not have any obligation
to purchase Notes from the Company as principal, but any Agent may agree from
time to time to purchase Notes as principal. Any such purchase of Notes by an
Agent as principal shall be made in accordance with Section 3(b) hereof.
(d) Reliance. The Company and the Agents agree that any Notes the
placement of which any Agent arranges shall be placed by such Agent, and any
Notes purchased by such Agent shall be purchased, in reliance on the
representations, warranties, covenants and agreements of the Company contained
herein and on the terms and conditions and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of each date on which an Agent solicits offers to purchase Notes at
the request of the Company, the date of each acceptance by the Company of an
offer for the purchase of Notes (whether through such Agent as agent or to such
Agent as principal), as of the date of each delivery of Notes (whether through
such Agent as agent or to such Agent as principal) (the date of each such
delivery to the Agent as principal being hereafter referred to as a "Settlement
Date"), and as of any time that the Registration Statement or the Prospectus
shall be amended or supplemented or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration Statement
complied in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. Each of the Indentures
complies in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the SEC promulgated thereunder. The Registration
Statement, at the time it became effective, did not, and at each time
thereafter at which any amendment to the Registration Statement becomes
effective or any Annual Report on Form 10-K is filed by the Company
with the SEC and as of each Representation Date, will not, contain an
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. The Prospectus as of the date hereof does not,
and as of each Representation Date will not, contain an 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; provided,
however, that the representations and warranties in this subsection
shall not apply to (A) that part of the Registration Statement which
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act and (B) statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and
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in conformity with information furnished to the Company in writing by
any of the Agents expressly for use in the Registration Statement or
Prospectus.
(ii) Incorporated Documents. The documents incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied or when so filed will comply, as the case
may be, in all material respects with the requirements of the 1934 Act
and the rules and regulations promulgated thereunder (the "1934 Act
Regulations"), and, when read together and with the other information
in the Prospectus, did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(iii) Authorization and Validity of this Agreement, the
Indentures and the Notes. This Agreement has been duly authorized and,
upon execution and delivery by each Agent, will be a valid and binding
agreement of the Company; when the terms of a particular issuance of
the Notes to an Agent as principal have been established in accordance
with the applicable Indenture, the related Terms Agreement, if any,
will have been duly authorized and, upon execution and delivery by the
applicable Agent, will be a valid and binding agreement of the Company;
each of the Indentures has been duly authorized and, upon execution and
delivery by the Senior Trustee or the Subordinated Trustee, as
applicable, will be a valid and binding obligation of the Company
enforceable in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting enforcement of creditors' rights
generally, or by general equity principles, and except further as
enforcement thereof may be limited by (A) requirements that a claim
with respect to any Notes denominated other than in U.S. dollars (or a
foreign currency or foreign currency unit judgment in respect of such
claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments in foreign
currency or currency units or payments outside the United States; the
establishment of the Medium-Term Note Program, Series A, and the
Subordinated Medium-Term Note Program, Series B, of the Company has
been duly authorized; when the terms of a particular issuance of the
Notes have been established in accordance with the applicable
Indenture, and such Notes are issued, authenticated and delivered
pursuant to the provisions of this Agreement and the applicable
Indenture against payment of the consideration therefor specified in
the Prospectus or pursuant to any Terms Agreement, the Notes will have
been duly authorized, executed and delivered and will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further as
enforcement thereof may be limited by (i) requirements that a claim
with respect to any Notes denominated other than in
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U.S. dollars (or a foreign currency or currency unit judgment in
respect of such claim) be converted into U.S. dollars at a rate or
exchange prevailing on a date determined pursuant to applicable law or
(ii) governmental authority to limit, delay or prohibit the making of
payments outside the United States; the Notes and the Indentures will
be substantially in the form heretofore delivered to each Agent and
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the Notes will be entitled to the
benefits provided by the applicable Indenture.
(iv) Investment Company Act of 1940. Neither the Company nor
any subsidiary of the Company is subject to registration or regulation
under the Investment Company Act of 1940, as amended.
(v) Legal Proceedings; Contracts. Except as may be set forth
in the Registration Statement or Prospectus, there is no action, suit
or proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of the Company,
threatened against or affecting, the Company or any of its
subsidiaries, which might, in the opinion of the Company, result in any
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, or might materially
affect the properties or assets thereof; and there are no contracts or
documents of the Company or any of its subsidiaries which are required
to be filed as exhibits to the Registration Statement by the 1933 Act
or by the 1933 Act Regulations which have not been so filed.
(b) Additional Certifications. Any certificate signed by any officer of
the Company and delivered to any Agent or to counsel for any Agent in connection
with an offering of Notes or the sale of Notes to such Agent as principal shall
be deemed a representation and warranty by the Company to such Agent as to the
matters covered thereby on the date of such certificate.
SECTION 3. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, each Agent agrees, as an agent of the Company, to use its reasonable
efforts to solicit offers to purchase the Notes upon the terms and conditions
set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through any Agent, as agent, commencing
at any time for any period of time or permanently. Upon receipt of at least one
business day's prior notice from the Company, such Agent will forthwith suspend
solicitation of offers to purchase Notes from the Company until such time as the
Company has advised such Agent that such solicitation may be resumed. While such
solicitation is suspended, the Company shall not be required to deliver any
certificates, opinions or letters in accordance with Sections 7(a), (b) and (c)
hereof; provided, however, that if the Registration Statement or Prospectus is
amended or supplemented during the period of suspension (other than by an
amendment or supplement providing solely for a change in the
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interest rates, redemption provisions, amortization schedules or maturities
offered on the Notes or for a change the Agents deem to be immaterial), no Agent
shall be required to resume soliciting offers to purchase Notes until the
Company has delivered such certificates, opinions and letters as such Agent may
request.
Unless the Company and the presenting Agent or Agents otherwise agree,
the Company will pay the presenting Agent (or jointly to two or all Agents if
such solicitation is jointly made) on the settlement date applicable to such
Note a commission equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such Agent
as set forth in Schedule A hereto.
The purchase price, interest rate, maturity date and other terms of the
Notes shall be agreed upon by the Company and the applicable Agent and set forth
in a pricing supplement to the Prospectus (a "Pricing Supplement") to be
prepared following each acceptance by the Company of an offer for the purchase
of Notes. All Notes sold through any Agent as agent will be sold at 100% of
their principal amount unless otherwise agreed to by the Company and such Agent.
(b) Purchases as Principal. Each sale of Notes to an Agent as principal
shall be made in accordance with the terms contained herein and pursuant to a
separate agreement which will provide for the sale of such Notes to, and the
purchase and reoffering thereof by, such Agent. Each such separate agreement
(which may be an oral agreement, if confirmed in writing by facsimile
transmission or otherwise) between an Agent and the Company is herein referred
to as a "Terms Agreement". Unless the context otherwise requires, each reference
contained herein to "this Agreement" shall be deemed to include any applicable
Terms Agreement between the Company and an Agent. Each such Terms Agreement,
whether oral or in writing, shall be with respect to such information (as
applicable) as is specified in Exhibit A hereto. An Agent's commitment to
purchase Notes as principal pursuant to any Terms Agreement shall be deemed to
have been made on the basis of the representations and warranties of the Company
herein contained and shall be subject to the terms and conditions herein set
forth. Each Terms Agreement shall specify the principal amount of Notes to be
purchased by the Agent pursuant thereto, the price to be paid to the Company for
such Notes (which, if not so specified in a Terms Agreement, shall be at a
discount equivalent to the applicable commission set forth in Schedule A
hereto), the time and place of delivery of and payment for such Notes, any
provisions relating to rights of, and default by, purchasers acting together
with the Agent in the reoffering of such Notes, and such other provisions
(including further terms of such Notes) as may be mutually agreed upon. An Agent
may utilize a selling or dealer group in connection with the resale of the Notes
purchased and the Agents may sell any such Notes to any dealers at a discount
but, unless specified otherwise in the applicable Pricing Supplement, such
discount allowed to any dealer shall not be in excess of the discount payable to
the Agents by the Company. Such Terms Agreement shall also specify the
requirements for the officer's certificate, opinions of counsel and comfort
letter pursuant to Sections 7(a), 7(b) and 7(c) hereof.
(c) Administrative Procedures. The Company and the Agents hereby agree
to the administrative procedures with respect to the sale of Notes set forth in
Annex A hereto (the
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"Procedures"). Each of the Agents and the Company agree to perform their
respective duties and obligations as set forth in the Procedures.
(d) Obligations Several. The Company acknowledges that the obligations
of the Agents under this Agreement are several and not joint.
SECTION 4. Covenants of the Company.
The Company covenants with each Agent as follows:
(a) Notice of Certain Events. The Company will notify each Agent
immediately (i) of the effectiveness of any amendment to the Registration
Statement, (ii) of the transmittal to the SEC for filing of any supplement to
the Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference in the Prospectus, (iii) of the receipt of any
comments from the SEC with respect to the Registration Statement or the
Prospectus, (iv) of any request by the SEC for any amendment to the Registration
Statement or any amendment or supplement to the Prospectus or for additional
information, and (v) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Notice of Certain Proposed Filings. The Company will give each
Agent notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment to
the Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates of Notes), whether by the filing of documents pursuant to the
1934 Act, the 1933 Act or otherwise. The Company will not file any amendment or
supplement to the Registration Statement or the Prospectus after the date of any
Terms Agreement and prior to the related Settlement Date which shall be
disapproved by any Agent party to such Terms Agreement promptly after reasonable
notice thereof unless in the opinion of counsel to the Company such amendment or
supplement is required by law; provided, however, that the foregoing requirement
shall not apply to any of the Company's periodic filings with the SEC pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act other than filings of
Current Reports on Form 8-K (to which the foregoing requirement shall apply),
copies of which filings the Company will cause to be delivered to the Agents
promptly after being transmitted for filing with the SEC.
(c) Copies of the Registration Statement and the Prospectus. The
Company will deliver to counsel for the Agents one manually signed and as many
conformed copies as requested of the Registration Statement (as originally
filed) and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated by reference in the
Prospectus). The Company will furnish to each Agent, without charge, as many
copies of the Prospectus (as amended or supplemented) as such Agent shall
reasonably request so
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long as the Agent is required to deliver a Prospectus in connection with sales
or solicitations of offers to purchase the Notes.
(d) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold through or to any Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agent and will file such Pricing Supplement pursuant to Rule
424(b) under the 1933 Act not later than the time period specified therein.
(e) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which it
is necessary, in the reasonable opinion of counsel for the Agents (communicated
to the Company in writing) or counsel for the Company, to further amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a purchaser,
or if it shall be necessary, in the reasonable opinion of either such counsel
(communicated to the Company in writing in the case of counsel for the Agents),
to amend or supplement the Registration Statement or the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations,
immediate notice shall be given by the Company, and confirmed in writing, to
each Agent to cease the solicitation of offers to purchase the Notes in such
Agent's capacity as agent and to cease sales of any Notes such Agent may then
own as principal pursuant to a Terms Agreement, and the Company will promptly
prepare and, subject to subsection (b) of this Section, file with the SEC such
amendment or supplement, whether by filing documents pursuant to the 1934 Act,
the 1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements. Neither an Agent's request for, nor any Agent's delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(f) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (k) of this Section, on or immediately after
the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to each Agent, confirmed in writing.
(g) Earnings Statements. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement or statements of
the Company and its subsidiaries (in form complying with the provisions of Rule
158 under the 1933 Act) covering each twelve month period beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in such Rule 158) of the Registration
Statement with respect to each sale of Notes.
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(h) Blue Sky Qualifications. The Company will arrange to qualify the
Notes for offering and sale under the applicable securities laws of such states
and other jurisdictions of the United States as any Agent may designate, and
will maintain such qualifications in effect for as long as may be required for
the distribution of the Notes; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation in any jurisdiction in which it is not so qualified. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise each Agent of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening of
any proceeding for such purpose.
(i) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will, subject to
subsection (b) of this Section, file promptly all documents required to be filed
with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act.
(j) Stand-Off Agreement. If required pursuant to the terms of a Terms
Agreement with any Agent, during the period beginning on the date of any Terms
Agreement and ending on the business day after the Settlement Date with respect
to such Terms Agreement, the Company will not, without such Agent's prior
consent, offer or sell, announce the offering of or enter into any agreement to
sell, any debt securities of the Company with terms substantially similar to
those of the Notes which are the subject of such Terms Agreement (other than the
Notes that are to be sold pursuant to such Terms Agreement and commercial paper
in the ordinary course of business).
(k) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e) or (f) of this Section
with respect to any Agent during any period from the time (i) such Agent shall
have suspended solicitation of purchases of the Notes in its capacity as agent
pursuant to a request from the Company and (ii) such Agent shall not then have a
legal obligation to deliver a prospectus with respect to the sale by it of Notes
which it has acquired as principal pursuant to a Terms Agreement, to the time
the Company shall determine that solicitation of purchases of the Notes should
be resumed or such Agent shall have such legal obligation to deliver a
prospectus. Upon the request of the Company, each Agent will inform the Company
whether it has the legal obligation to deliver a prospectus with respect to the
sale by it of Notes which it has acquired under a Terms Agreement.
SECTION 5. Conditions of Obligations.
The obligations of each Agent to solicit offers to purchase the Notes
as agent of the Company and any obligation of any Agent to purchase Notes
pursuant to a Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of the Company contained herein and
to the accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the
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Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) Legal Opinions. On the date hereof, each Agent shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to such Agent:
1. Opinion of Company Counsel. The opinion of Stanley S.
Stroup, Executive Vice President and General Counsel of the Company, to
the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware.
(ii) The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Prospectus, and is duly
registered as a bank holding company under the Bank Holding
Company Act of 1956, as amended; and each of Norwest Bank
Minnesota, National Association ("Norwest Bank Minnesota"),
and Wells Fargo Bank, N.A. ("Wells Fargo Bank"), is a national
banking association duly chartered and is in good standing
under the National Bank Act of 1864, as amended; and WFC
Holdings Corporation ("WFC Holdings" and together with Norwest
Bank Minnesota and Wells Fargo Bank, the "Significant
Subsidiaries") is duly organized and validly existing in good
standing under the laws of the State of Delaware.
(iii) Each of the Company and the Significant
Subsidiaries is duly qualified to do business and is in good
standing in each jurisdiction which requires such
qualification wherein it owns or leases any material
properties or conducts any material business, except where the
failure to so qualify would not have any material adverse
effect upon the business, condition or properties of the
Company and its subsidiaries, taken as a whole.
(iv) All of the outstanding shares of capital stock
of each Significant Subsidiary have been duly and validly
authorized and issued and are fully paid and (except as
provided in 12 U.S.C. ss.55) nonassessable, and are owned by
the Company free and clear of any perfected security interest
and, to the knowledge of such counsel, any other security
interests, claims, liens or encumbrances. The Company's
authorized equity capitalization is as set forth in the
Prospectus.
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(v) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(vi) Each of the Indentures has been duly and validly
authorized, executed and delivered by the Company and
(assuming such Indenture has been duly authorized, executed
and delivered by the Senior Trustee or the Subordinated
Trustee, as applicable) constitutes a legal, valid and binding
agreement of the Company, enforceable in accordance with its
terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equitable principles, and except
further as enforcement thereof may be limited by (A)
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a foreign currency
or foreign currency unit judgment in respect of such claim) be
converted into United States dollars at a rate of exchange
prevailing on a date determined pursuant to applicable law or
(B) governmental authority to limit, delay or prohibit the
making of payments in foreign currency or currency units or
the making of payments outside the United States.
(vii) The Notes are in due and proper form and have
been duly established in conformity with Section 301 of the
applicable Indenture. When the specific terms of an issue of
Notes have been fixed by an authorized officer of the Company
by executing and delivering to the Senior Trustee or the
Subordinated Trustee, as applicable, an authentication
certificate supplemental to an officers' certificate, such
Notes will be duly authorized for issuance, offer and sale
pursuant to this Agreement and, when issued, authenticated and
delivered pursuant to the provisions of this Agreement and the
applicable Indenture against payment of the consideration
therefor, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles, and except further
as enforcement thereof may be limited by (A) requirements that
a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or foreign currency unit
judgment in respect of such claim) be converted into United
States dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (B) governmental
authority to limit, delay or prohibit the making of payments
in foreign currency or currency units or payments outside the
United States, and each holder of Notes will be entitled to
the benefits of the applicable Indenture.
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(viii) The statements in the Prospectus (other than
statements furnished in writing to the Company by an Agent
expressly for use therein) under the captions "Description of
Debt Securities", "Plan of Distribution", "Description of
Notes" and "Supplemental Plan of Distribution", insofar as
they purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of
such provisions.
(ix) Each of the Indentures is qualified under the
1939 Act.
(x) The Registration Statement is effective under the
1933 Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor
initiated or, to the knowledge of such counsel, threatened by
the SEC; and any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b) under the 1933 Act.
(xi) The Registration Statement, the Prospectus and
each amendment thereof or supplement thereto as of their
respective effective or issue dates (other than financial
statements, schedules and other financial and statistical data
contained therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act, the 1939 Act and the regulations
under each of those Acts.
(xii) To such counsel's knowledge, there are no legal
or governmental proceedings pending or threatened which are
required to be disclosed in the Prospectus, other than those
disclosed therein.
(xiii) The execution and delivery of this Agreement
or of the Indentures, or the consummation by the Company of
the transactions contemplated by this Agreement and the Notes
and the incurrence of the obligations therein contemplated,
will not conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any Significant Subsidiary pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or
other instrument constituting a material contract and set
forth as an exhibit to the Company's most recent Annual Report
on Form 10-K or any subsequent Quarterly Report on Form 10-Q
or Current Report on Form 8-K, or any other contract,
indenture,
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mortgage, loan agreement, note, lease or other instrument
known to such counsel and to which the Company or any
Significant Subsidiary is a party or to which any of the
property or assets of the Company or any Significant
Subsidiary is subject, or any law, administrative regulation
or administrative or court decree known to such counsel to be
applicable to the Company of any court or governmental agency,
authority or body or any arbitrator having jurisdiction over
the Company; nor will such action result in any violation of
the provisions of the charter or by-laws of the Company.
(xiv) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments or documents required to be
described or referred to in the Registration Statement or to
be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references
thereto are correct.
(xv) No consent, approval, authorization, order or
decree of any court or governmental agency or body including
the SEC is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as
may be required under the Blue Sky laws of any jurisdiction in
connection with the purchase and distribution of the Notes by
the Agents.
(xvi) Each document filed pursuant to the 1934 Act
and incorporated by reference in the Prospectus complied when
filed as to form in all material respects with the 1934 Act
and the 1934 Act Regulations thereunder (other than financial
statements, schedules and other financial and statistical data
included therein, as to which no opinion need be rendered).
2. Opinion of Counsel to the Agents. The opinion of Gibson,
Dunn & Crutcher LLP, counsel to the Agents, covering the matters
referred to in subparagraph (1) under the subheadings (i), (v), (vi),
(vii), (ix), (x) and (xi) above.
3. In giving their opinions required by subsection (a)(1) and
(a)(2) of this Section, Mr. Stroup and Gibson, Dunn & Crutcher LLP
shall each additionally state that such counsel has no reason to
believe that the Registration Statement, or any amendment thereof, at
the time it became effective (other than financial statements,
schedules or other financial and statistical data contained therein, as
to which no statement need be made), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus, as amended or supplemented at the
date the opinion is being rendered or (if such opinion is being
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delivered in connection with a Terms Agreement pursuant to Section 7(b)
hereof) at the date of any Terms Agreement and at the Settlement Date
with respect thereto, as the case may be (other than financial
statements, schedules or other financial and statistical data contained
therein, as to which no statement need be made), includes an untrue
statement of a material fact or omits 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; provided,
however, that the opinion of Gibson, Dunn & Crutcher LLP shall take no
exception for statistical data.
(b) Officer's Certificates. On the date hereof, the Agents shall have
received a certificate signed by any Senior Vice President or Executive Vice
President and the principal financial or accounting officer of the Company
(provided that no person shall sign such certificate in more than one official
capacity) dated as of the date hereof, to the effect that (i) since the date of
the most recent financial statements included in the Prospectus (or since the
date of any applicable Terms Agreement), there has not been any material adverse
change in the condition, financial or otherwise, or in the earnings, business,
properties or business prospects of the Company and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business, except as set
forth in or contemplated in the Prospectus, (ii) the representations and
warranties of the Company contained in Section 2 hereof are true and correct
with the same force and effect as though expressly made at and as of the date of
such certificate, (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall have received
a letter from KPMG LLP, dated as of the date hereof and containing statements
and information of the type contained in the form of comfort letter attached
hereto as Annex B.
(d) Other Documents. On the date hereof (and on each Settlement Date
with respect to any applicable Terms Agreement), counsel to the Agents shall
have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or in
order to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and
sale of Notes as herein contemplated shall be satisfactory in form and substance
to the Agents and to counsel for the Agents.
(e) Material Adverse Change. There shall have been no material adverse
change in the condition, financial or otherwise, in the earnings, business,
properties, results of operations or business prospects of the Company and its
subsidiaries, taken as a whole, whether or not in the ordinary course of
business, from that set forth in the Prospectus, as amended or supplemented as
of the date of such solicitation or the date of such Terms Agreement that, in
the judgment of such Agent, is material and adverse and makes it, in the
judgment of such Agent,
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impracticable to proceed with the solicitation of offers to purchase Notes or
the purchase by such Agent of Notes from the Company pursuant to such Terms
Agreement, as the case may be.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of any Agent, any applicable Terms Agreement) may be terminated by any
Agent insofar as this Agreement relates to such Agent by notice to the Company
at any time and any such termination shall be without liability of any party to
any other party, except that the covenant regarding provision of an earnings
statement set forth in Section 4(g) hereof, the provisions concerning payment of
expenses under Section 10 hereof, the indemnity and contribution agreement set
forth in Sections 8 and 9 hereof, the provisions concerning the representations,
warranties and agreements to survive delivery of Section 11 hereof and the
provisions set forth in Sections 13, 14 and 15 hereof shall remain in effect.
SECTION 6. Delivery of and Payment for Notes Sold through the Agents.
Delivery of Notes sold through any Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the presenting Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by such Agent
in the performance of its obligations hereunder, the Company will reimburse such
Agent on an equitable basis for its loss of the use of the funds for the period
such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company covenants and agrees with each Agent that:
(a) Subsequent Delivery of Certificates. If so requested by such Agent,
each time that the Registration Statement or the Prospectus shall be amended or
supplemented (other than by a Pricing Supplement, and other than by an amendment
or supplement which relates exclusively to an offering of securities other than
the Notes) or there is filed with the SEC any document incorporated by reference
into the Prospectus, or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished to such Agent forthwith a certificate
dated the date of filing with the SEC of such supplement or document, the date
of effectiveness of such amendment, or the date of such sale, as the case may
be, in form satisfactory to such Agent to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were last
furnished to such Agent are true and correct at the time of such amendment,
supplement, filing or sale, as the case may be, as though made at and as of such
time (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in said Section 5(b), modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
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(b) Subsequent Delivery of Legal Opinions. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement or solely for the
inclusion of additional financial information, and other than by an amendment or
supplement which relates exclusively to an offering of securities other than the
Notes) or there is filed with the SEC any document incorporated by reference
into the Prospectus, or (if required pursuant to the terms of a Terms Agreement)
the Company sells Notes to any Agent pursuant to a Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent and to counsel to
such Agent a written opinion of the General Counsel of the Company, or other
counsel satisfactory to such Agent, dated the date of filing with the SEC of
such supplement or document, the date of effectiveness of such amendment, or the
date of such sale, as the case may be, in form and substance satisfactory to
such Agent, of the same tenor as the opinion referred to in Section 5(a)(1)
hereof, but modified, as necessary, to relate to the Registration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
opinion; or, in lieu of such opinion, counsel last furnishing such opinion to
such Agent shall furnish each Agent with a letter to the effect that the Agents
may rely on such last opinion to the same extent as though it was dated the date
of such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(c) Subsequent Delivery of Comfort Letters. If so requested by such
Agent, each time that the Registration Statement or the Prospectus shall be
amended or supplemented to include additional financial information, or there is
filed with the SEC any document incorporated by reference into the Prospectus
which contains additional financial information, or (if required pursuant to the
terms of a Terms Agreement) the Company sells Notes to any Agent pursuant to a
Terms Agreement, the Company shall cause KPMG LLP forthwith to furnish each
Agent a letter, dated the date of effectiveness of such amendment, supplement or
document with the SEC, or the date of such sale, as the case may be, in form
satisfactory to the Agents, of the same general tenor as the letter referred to
in Section 5(c) hereof but modified to relate to the Registration Statement and
Prospectus, as amended and supplemented to the date of such letter, and with
such changes as may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the Company;
provided, however, that if the Registration Statement or the Prospectus is
amended or supplemented solely to include financial information as of and for a
fiscal quarter, KPMG LLP may limit the scope of such letter to the unaudited
financial statements included in such amendment or supplement.
SECTION 8. Indemnification.
(a) Indemnification of the Agents. The Company agrees to indemnify and
hold harmless each Agent and each person, if any, who controls each Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
arising out of any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, as originally filed or any
amendment thereof, or the omission or alleged omission therefrom of a material
fact necessary to
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make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus, or any amendment or supplement thereof, or the omission or alleged
omission therefrom of a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and agrees to reimburse each such indemnified party to the extent set forth
below, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage or
liability; provided, however, that: (A) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of or is based on any such untrue statement or omission or such alleged
untrue statement or omission made therein in reliance upon and in conformity
with written information furnished to the Company by the Agents expressly for
use in the Registration Statement or the Prospectus, and (B) with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from the Prospectus, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Agent (or any person controlling such
Agent) from or through whom the person asserting any such losses, claims,
damages or liabilities purchased the Notes concerned, to the extent that the
Prospectus relating to such Notes was required to be delivered by such Agent
under the 1933 Act in connection with such purchase and was not so delivered at
or prior to the written confirmation of the sale of such Notes to such person
and the untrue statement or omission of a material fact contained in the
Prospectus was corrected in an amendment or supplement if the Company had
previously furnished copies of the Prospectus as so amended or supplemented
(exclusive of material incorporated by reference) to such Agent in sufficient
time for such Agent to deliver the Prospectus as so amended or supplemented
prior to the consummation of such purchase. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Indemnification of Company. Each Agent agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this Section,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement thereto).
(c) General. 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 paragraph (a) or (b) of this Section
8, 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 shall be entitled to participate therein and, to the
extent it shall wish, jointly, with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
the indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party). Any failure to so notify shall not
affect any rights that may exist other than pursuant to this Section 8. In any
such
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proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the 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 respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one identified separate firm
(in addition to any identified local counsel) for all such indemnified parties
and that all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by the Agents that are indemnified
parties in the case of parties to be indemnified pursuant to paragraph (a) of
this Section 8 and by the Company in the case of parties to be indemnified
pursuant to paragraph (b) of this Section 8. An indemnifying party shall not be
liable for any settlement of any proceeding effected without its prior written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld or delayed),
effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of the indemnified party.
SECTION 9. Contribution.
(a) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8 hereof
is for any reason held to be unavailable to or insufficient to hold harmless the
indemnified parties although applicable in accordance with its terms, the
indemnifying party shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said indemnity
agreement incurred by the indemnified party, as incurred: (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company, on
the one hand, and each Agent, on the other hand, from the offering of the Notes
to which such loss, liability, claim, damage or expense shall relate; 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 Company, on
the one hand, and each Agent, on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and each Agent, on the other
hand, in connection with such offering shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such Notes
(before deducting expenses) received by the Company bear to the total discounts
and commissions received by each Agent in respect thereof. The relative fault of
the Company, on the one hand, and each Agent, on the other hand, shall be
determined by reference to, among
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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 Company or by such Agent and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Agent's obligation to contribute pursuant to
this Section 9 shall be several in the proportion that the principal amount of
the Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through all Agents gave rise to such losses,
claims, damages or liabilities, and not joint; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section, each
person, if any, who controls any Agent within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as such Agent, and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act shall have the same rights to contribution as the
Company.
(b) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to Section 9(a) hereof were determined by pro
rata allocation (even if the Agents were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 9(a) hereof. The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 9(a) hereof shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section, no Agent shall
be required to contribute any amount in excess of the amount by which the total
price at which the Notes referred to in Section 9(a) hereof that were offered
and sold by or through such Agent exceeds the amount of any damages that such
Agent has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) the preparation and filing of the Registration Statement
and all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(b) the preparation, filing and reproduction of this
Agreement;
(c) the preparation, printing, issuance and delivery of the
Notes, including any fees and expenses relating to the use of
book-entry notes;
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(d) the fees and disbursements of the Company's accountants
and counsel, of the Senior Trustee and the Subordinated Trustee and
their counsel, and of any Calculation Agent or Exchange Rate Agent;
(e) the reasonable fees and disbursements of counsel to the
Agents incurred in connection with establishment of the program
contemplated hereby and the transactions contemplated hereby other than
in connection with the sale of Notes to an Agent as principal pursuant
to a Terms Agreement (unless so provided in such Terms Agreement);
(f) the qualification of the Notes under Blue Sky laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Agents in connection therewith and in connection with the preparation
of any Blue Sky Survey and any Legal Investment Survey;
(g) the printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by each Agent of the Prospectus
and any amendments or supplements thereto in connection with
solicitations or confirmations of sales of the Notes;
(h) the preparation, printing, reproducing and delivery to the
Agent of copies of the Indentures and all supplements and amendments
thereto;
(i) any fees charged by rating agencies for the rating of the
Notes;
(j) the fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers, Inc.;
(k) any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Company;
(l) the cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) the fees and expenses of any Depositary (as defined in the
Indentures) and any nominees thereof in connection with the Notes.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Agent or
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any controlling person of any Agent, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time, by either the Company
or any Agent (insofar as this Agreement relates to such Agent) upon the giving
of 30 days' written notice of such termination to the other party hereto.
(b) Termination of a Terms Agreement. Any Agent may terminate any Terms
Agreement, in such Agent's absolute discretion, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto if there
shall have occurred, since the date of such Terms Agreement, any (i) suspension
or material limitation of trading generally on the New York Stock Exchange, (ii)
suspension of trading of any securities of the Company on any exchange or in any
over-the-counter market, (iii) declaration of a general moratorium on commercial
banking activities in California or New York by either Federal or state
authorities, (iv) lowering of the rating assigned to any debt securities of the
Company by any nationally-recognized securities rating agency or public
announcement by any such rating agency that it has under surveillance or review,
with possible negative implications, its rating of any debt securities of the
Company, or (v) outbreak or escalation of hostilities in which the United States
is involved, declaration of war by Congress or change in financial markets or
calamity or crisis, that, in the judgment of such Agent, is material and adverse
and, in the case of any of the events described in clauses (i) through (v), such
event, either alone or together with any other such event, makes it, in the
judgment of such Agent, impracticable to proceed with completion of the public
offering of, or purchase of and payment for, the Notes.
(c) General. In the event of any such termination, none of the parties
will have any liability to the other parties hereto, except that (i) each Agent
shall be entitled to any commission earned in accordance with the third
paragraph of Section 3(a) hereof, (ii) if at the time of termination (a) any
Agent shall own any Notes purchased pursuant to a Terms Agreement with the
intention of reselling them or (b) an offer to purchase any of the Notes has
been accepted by the Company but the time of delivery to the purchaser or his
agent of the Note or Notes relating thereto has not occurred, the covenants set
forth in Sections 4 and 7 hereof shall remain in effect until such Notes are so
resold or delivered, as the case may be, and (iii) the covenant set forth in
Section 4(g) hereof, the provisions of Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, and the provisions
of Sections 11 and 15 hereof shall remain in effect.
22
<PAGE>
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Wells Fargo & Company
444 Market Street
MAC: 0195-171
San Francisco, California 94111
23
<PAGE>
If to the Agents:
Morgan Stanley & Co. Incorporated Credit Suisse First Boston Corporation
1585 Broadway - 2nd Floor 11 Madison Avenue
New York, New York 10036 New York, New York 10010
Attention: Manager-Continuously Attention: Short and Medium-Term Finance
Delivered Products
and Donaldson, Lufkin & Jenrette Securities
1585 Broadway - 29th Floor Corporation
New York, New York 10036 277 Park Avenue, 9th Floor
Attention: Peter Cooper: Investment New York, New York 10172
Banking Information Center
ABN AMRO Incorporated First Union Capital Markets Corp.
1325 Avenue of the Americas 1 South Penn Square
New York, New York 10019 Philadelphia, Pennsylvania 19107
Attention: Legal Department
Banc One Capital Markets Inc. Goldman, Sachs & Co.
One First National Plaza, 85 Broad Street
Suite IL1-0595 New York, New York 10004
Chicago, Illinois 60670 Attention: Ben Smilchensky
Barclays Capital Inc. HSBC Securities (USA) Inc.
222 Broadway, 8th Floor 140 Broadway
New York, New York 10038 New York, New York 10005
Attention: Investment Grade Syndicate
Bear, Stearns & Co. Inc. Lehman Brothers Inc.
245 Park Avenue, 4th Floor 3 World Financial Center, 9th Floor
New York, New York 10167 New York, New York 10285
Attention: High Grade Capital Markets
Desk--Joel Schlessinger
BNY Capital Markets, Inc. Mellon Financial Markets, Inc.
103 Eisenhower Parkway One Mellon Bank Center
Roseland, New Jersey 07068 Pittsburgh, Pennsylvania 15258
Attention: Robert Gorham
Chase Securities Inc. Salomon Smith Barney Inc.
270 Park Avenue, 8th Floor Medium-Term Note Department
New York, New York 10017 7 World Trade Center
Attention: Medium-Term Note Desk New York, New York 10048
24
<PAGE>
WestLB Panmure Securities Inc.
1211 Avenue of the Americas
New York, New York 10036
Attention: Lillian Lum
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. Governing Law.
This Agreement and all the rights and obligations of the parties shall
be governed by and construed in accordance with the laws of the State of New
York applicable to agreements made and to be performed in such State.
SECTION 15. Parties.
This Agreement shall inure to the benefit of and be binding upon each
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
25
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agent and the Company in accordance with its terms.
Very truly yours,
WELLS FARGO & COMPANY
By: /s/ Paul D. Ardleigh
------------------------------
Name: Paul D. Ardleigh
Title: Senior Vice President
Accepted:
MORGAN STANLEY & CO. INCORPORATED
By /s/ Michael Fusco
---------------------------------------
Its Vice President
---------------------------------
ABN AMRO INCORPORATED
By /s/ Constance C. Cornish
---------------------------------------
Its Managing Director
---------------------------------
BANC ONE CAPITAL MARKETS INC.
By /s/ J.W. Kolb
---------------------------------------
Its Managing Director
---------------------------------
26
<PAGE>
BARCLAYS CAPITAL INC.
By /s/ S.F.
---------------------------------------
Its Managing Director
---------------------------------
BEAR, STEARNS & CO. INC.
By /s/ T.A.C.
---------------------------------------
Its Senior Managing Director
---------------------------------
BNY CAPITAL MARKETS, INC.
By /s/ Bennett Leichman
---------------------------------------
Its Vice President
---------------------------------
Chase Securities Inc.
By /s/ Therese Esperds
---------------------------------------
Its Managing Director
---------------------------------
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Helena M. Willner
---------------------------------------
Its Director
---------------------------------
27
<PAGE>
DONALDSON, LUFKIN & JENRETTE SECURITIES
CORPORATION
By /s/ John E. M.
---------------------------------------
Its Managing Director
---------------------------------
FIRST UNION CAPITAL MARKETS CORP.
By /s/ William W. Ingram
---------------------------------------
Its Managing Director
---------------------------------
GOLDMAN, SACHS & CO.
By /s/ Goldman, Sachs & Co.
---------------------------------------
Its
---------------------------------
HSBC SECURITIES (USA) INC.
By /s/ Gail Burlant
---------------------------------------
Its Senior Vice President
---------------------------------
LEHMAN BROTHERS INC.
By /s/ James French
---------------------------------------
Its Managing Director
---------------------------------
28
<PAGE>
MELLON FINANCIAL MARKETS, INC.
By /s/ Leo L. Au
---------------------------------------
Its President and CEO
---------------------------------
SALOMON SMITH BARNEY INC.
By /s/ Maureen D. Bailey
---------------------------------------
Its First Vice President
---------------------------------
WESTLB PANMURE SECURITIES INC.
By /s/ Martin Booth
---------------------------------------
Its Chief Operating Officer
---------------------------------
By /s/ Andrew Leithhead
---------------------------------------
Its Chief Executive Officer
---------------------------------
29
<PAGE>
SCHEDULE A
As compensation for the services of any Agent hereunder, the Company
shall pay it, on a discount basis, a commission for the sale of each Note equal
to the principal amount of such Note multiplied by the appropriate percentage
set forth below:
PERCENT OF
----------
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
From 9 months to less than 1 year............. .125%
From 1 year to less than 18 months............ .150
From 18 months to less than 2 years........... .200
From 2 years to less than 3 years............. .250
From 3 years to less than 4 years............. .350
From 4 years to less than 5 years............. .450
From 5 years to less than 7 years............. .500
From 7 years to less than 10 years............ .600
From 10 years to less than 15 years........... .625
From 15 years to less than 20 years........... .700
From 20 years to 30 years..................... .750
More than 30 years............................ As agreed at the time
of sale
<PAGE>
EXHIBIT A
WELLS FARGO & COMPANY
MEDIUM-TERM NOTES
TERMS AGREEMENT
_________________, 19__
Wells Fargo & Company
444 Market Street
MAC: 0195 - 171
San Francisco, California 94111
Attention:
Re: Distribution Agreement dated September 2, 1999 (the
"Distribution Agreement")
[We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
PRINCIPAL AMOUNT
NAME OF NOTES
----------------
Morgan Stanley & Co. Incorporated.............. $
[Insert syndicate list](1).....................
----------------
Total.......................................... $
- --------------------
(1) Delete if the transaction will not be syndicated.
<PAGE>
We agree to purchase your Medium-Term Notes having the following terms:
Principal Amount: $_________________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, interest rate:
If Floating Rate Notes:
Interest rate or interest rate basis
applicable to each interest period
Initial interest rate
Spread and/or spread multiplier, if any
Interest rate reset dates
Interest rate reset period
Interest payment dates
Interest payment period
Index maturity
Calculation agent
Maximum interest rate, if any
Minimum interest rate, if any
Calculation date
Interest determination dates
Regular record dates
If Original Issue Discount Zero Coupon Notes and
Original Issue Discount Fixed Rate Notes, any terms
required to be established by the Internal Revenue
Code of 1986, as amended
If Foreign Currency Notes:
Interest rate or interest rate basis
Authorized denominations (including integral
multiples) in the specified currency
Exchange rate agent
Specified currency account (if holder elects
to receive payments in other than U.S.
dollars by wire transfer)
A-2
<PAGE>
If Redeemable:
Redemption Date
Redemption Prices
If Repayable, repayment terms:
Date of Maturity
Purchase Price: ___%
Price to Public: ___%
Settlement Date and Time
Currency of Denomination
Currency of Payment
Payment of Expenses
Syndicate Provisions
Additional Terms:
Also, in connection with the purchase of Notes by the Agent as principal,
agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(a) of the
Distribution Agreement
Legal Opinion pursuant to Section 7(b) of the
Distribution Agreement
Comfort Letter pursuant to Section 7(c) of the
Distribution Agreement
Stand-off Agreement pursuant to Section 4(i) of the
Distribution Agreement
A-3
<PAGE>
The provisions of the Distribution Agreement applicable to purchases of
Notes by the Agents and the related definitions are incorporated by reference
herein and shall be deemed to have the same force and effect as if set forth in
full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as _____________ may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date. If on the Settlement Date any Agent or Agents shall fail or refuse to
purchase Notes and the aggregate amount of Notes with respect to which such
default occurs is more than one-tenth of the aggregate amount of Notes to be
purchased on such date, and arrangements satisfactory to ___________ and the
Company for the purchase of such Notes are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Agent or the Company. In any such case either ___________ or the
Company shall have the right to postpone the Settlement Date but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Agent from liability in respect of any default of such
Agent under this Agreement.](2)
- --------------------
(2) Delete if the transaction will not be syndicated.
A-4
<PAGE>
This Agreement is also subject to termination on the terms incorporated
by reference herein.
[NAME OF RELEVANT AGENT(S)]
By_______________________________________
Name:
Title:
Accepted:
WELLS FARGO & Company
By_________________________________
Name:
Title:
A-5
<PAGE>
ANNEX A
WELLS FARGO & COMPANY
Administrative Procedures
-------------------------
These Administrative Procedures relate to the Notes defined in the
Distribution Agreement, dated September 2, 1999 (the "Distribution Agreement"),
among Wells Fargo & Company (the "Company") and the Agents named therein
(together, the "Agents"), to which these Administrative Procedures are attached
as Annex A. Defined terms used herein and not defined herein shall have the
meanings given such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the applicable Indenture. To the extent any procedure
set forth below conflicts with the provisions of the Notes, the applicable
Indenture, the Distribution Agreement or the applicable Terms Agreement, the
relevant provisions of the Notes, the applicable Indenture, the Distribution
Agreement and the applicable Terms Agreement shall control.
An Agent, in relation to a purchase of a Note by a purchaser solicited
by such Agent, is referred to herein as the "Selling Agent" and, in relation to
a purchase of a Note by such Agent as principal pursuant to a Terms Agreement,
as the "Purchasing Agent".
The Company will advise each Agent in writing of those persons with
whom such Agent is to communicate regarding offers to purchase Securities and
the related settlement details.
Each Note will be issued only in fully registered form, without
coupons, and will be represented by either a global security (a "Global
Security") delivered to the applicable Trustee, as agent for The Depository
Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC
(a "Book-Entry Security") or a certificate issued in definitive form (a
"Certificated Security") delivered to a person designated by an Agent, as set
forth in the applicable Pricing Supplement. An owner of a Book-Entry Security
will not be entitled to receive a certificate representing such a Note, except
as provided in the applicable Indenture.
Book-Entry Securities, which may be payable only in U.S. dollars, will
be issued in accordance with the Administrative Procedure set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC's
operating procedures and Certificated Securities will be issued in accordance
with the Administrative Procedure set forth in Part II hereof.
Certain duties of the Senior Trustee and the Subordinated Trustee
hereunder may be performed by Norwest Bank Minnesota, N.A., as Issuing, Paying &
Authenticating Agent, and other duly appointed agents of the Senior Trustee or
the Subordinated Trustee. The Calculation Agent will be Norwest Bank Minnesota,
N.A.
<PAGE>
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by DTC, the Senior Trustee and
the Subordinated Trustee will perform the custodial, document control and
administrative functions described below, in accordance with its respective
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance:
- ---------
On any date of settlement (as defined under "Date of Settlement" below)
for one or more Book-Entry Securities, the Company will issue a single Global
Security representing the principal amount of all such Notes that have the same
Original Issue Date, Stated Maturity Date and other terms (which Global Security
shall represent no more than U.S. $200,000,000 of such principal amount if such
Global Security is to be deposited with DTC). Each Global Security will be dated
and issued as of the date of its authentication by the applicable Trustee. Each
Global Security will bear an "Interest Accrual Date," which will be (i) with
respect to an original Global Security (or any portion thereof), its original
issuance date and (ii) with respect to any Global Security (or any portion
thereof) issued subsequently upon exchange of a Global Security, or in lieu of a
destroyed, lost or stolen Global Security, the most recent Interest Payment Date
to which interest has been paid or duly provided for on the predecessor Global
Security (or if no such payment or provision has been made, the original
issuance date of the predecessor Global Security), regardless of the date of
authentication of such subsequently issued Global Security. No Global Security
will represent any Certificated Security.
Denominations:
- --------------
Book-Entry Securities will be issued in principal amounts of U.S.
$1,000 or any amount in excess thereof that is an integral multiple of U.S.
$1,000. Global Securities will be denominated in principal amounts not in excess
of U.S. $200,000,000 if such Global Security is to be deposited with DTC. If one
or more Book-Entry Securities having an aggregate principal amount in excess of
$200,000,000 would, but for the preceding sentence, be represented by a single
Global Security, then one Global Security will be issued to represent each U.S.
$200,000,000 principal amount of such Book-Entry Security or Securities and an
additional Global Security will be issued to represent any remaining principal
amount of such Book-Entry Security or Securities. In such a case, each of the
Global Securities representing such Book-Entry Security or Securities shall be
assigned the same CUSIP number.
Posting Rates by the Company:
- -----------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest
A-2
<PAGE>
rates and maturities for an offering period ("posting"). If the Company decides
to change already posted rates, it will promptly advise the Agents to suspend
solicitation of offers until the new posted rates have been established with the
Agents.
Acceptance of Offers by the Company:
- ------------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the applicable Trustee.
Communication of Sale Information to the Company by Selling Agent and Settlement
- --------------------------------------------------------------------------------
Procedures:
- -----------
A. After the acceptance of an offer by the Company, the Selling Agent
or Purchasing Agent, as the case may be, will communicate promptly, but in no
event later than the time set forth under "Settlement Procedure Timetable"
below, the following details of the terms of such offer (the "Sale Information")
to the Company by telephone (confirmed in writing) or by facsimile transmission
or other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be
purchased;
(2) If a Fixed Rate Book-Entry Security, the interest
rate, the Interest Payment Dates and the initial
Interest Payment Date;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) If payments thereon are to be determined by reference
to an index, the relevant provisions relating
thereto;
(7) issue price;
A-3
<PAGE>
(8) Selling Agent's commission or Purchasing Agent's
discount, as the case may be;
(9) Net proceeds to the Company;
(10) If a redeemable or repayable Book-Entry Security,
provisions relating to such redemption or repayment;
(11) If a Floating Rate Book-Entry Security, such of the
following as are applicable:
(i) Base Rate,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) maximum rate,
(v) minimum rate,
(vi) initial interest rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Denomination of certificates to be delivered at
settlement;
(13) Selling Agent or Purchasing Agent;
(14) original issue discount provisions, if any;
(15) Any other applicable terms.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the applicable Trustee by facsimile transmission or other
acceptable written means. The applicable Trustee will assign a CUSIP number to
the Global Security from a list of CUSIP
A-4
<PAGE>
numbers previously delivered to the applicable Trustee by the Company
representing such Book-Entry Security and then advise the Company and the
Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number as
soon as practicable.
C. The applicable Trustee will enter a pending deposit message through
DTC's Participant Terminal System, providing the following settlement
information to DTC, and DTC shall forward such information to such Agent and
Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry Security (to the extent known at such
time);
(4) Number of the participant account maintained by DTC
on behalf of the Selling Agent or Purchasing Agent,
as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry
Security.
D. The applicable Trustee will complete the Global Security, in the
form previously approved by the Company, the Agents and the applicable Trustee.
E. The applicable Trustee will authenticate the Global Security
representing such Book-Entry Security.
F. DTC will credit such Book-Entry Security to the applicable Trustee's
participant account at DTC.
G. The applicable Trustee will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to (i) debit such Book-Entry
Security to the applicable Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account at DTC, and (ii) debit
such Agent's settlement account and credit the applicable Trustee's settlement
account for an amount equal to the price of such Book-Entry Security less such
Agent's commission. The entry of such a deliver order shall constitute a
representation and warranty by the applicable Trustee to DTC that (a) the Global
Security representing such Book-Entry Security has been issued and authenticated
and (b) the applicable Trustee is holding such Global Security pursuant to the
applicable Certificate Agreement.
H. Unless the relevant Agent is the end purchaser of such security,
such Selling or Purchasing Agent, as the case may be, will enter an SDFS deliver
order through DTC's
A-5
<PAGE>
Participant Terminal System instructing DTC (i) to debit such Book-Entry
Security to such Agent's participant account and credit such Book-Entry Security
to the participant accounts of the participants with respect to such Book-Entry
Security and (ii) to debit the settlement accounts of such participants and
credit the settlement account of such Agent for an amount equal to the price of
such Book-Entry Security.
I. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
J. Upon confirmation of receipt of funds, the applicable Trustee will
transfer to such account as the Company may have previously specified to the
applicable Trustee, in funds available for immediate use in the amount
transferred to the applicable Trustee in accordance with Settlement Procedure
"G".
K. Unless the relevant Agent is the end purchaser of such security,
such Selling or Purchasing Agent, as the case may be, will confirm the purchase
of such Book-Entry Security to the purchaser either by transmitting to the
participants with respect to such Book-Entry Security a confirmation order or
orders through DTC's institutional delivery system or by mailing a written
confirmation to such purchaser.
L. At any time upon request, the applicable Trustee will send to the
Company a statement setting forth the principal amount of Book-Entry Securities
outstanding as of that date under the applicable Indenture.
M. DTC will, at any time, upon request of the Company or the applicable
Trustee, promptly furnish to the Company or the applicable Trustee a list of the
names and addresses of the participants for whom DTC has credited Book-Entry
Securities.
Preparation of Pricing Supplement by Company:
- ---------------------------------------------
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Security and
arrange to have delivered to the Selling Agent or Purchasing Agent, as the case
may be, such numbers of such Pricing Supplement as the Agent may reasonably
request, not later than 11:00 a.m., New York City time, on the Business Day
following the Trade Date (as defined below). The Company will arrange to file a
copy of the Pricing Supplement with the Commission not later than the close of
business of the Commission on the second Business Day following the date on
which such Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will provide a copy of such Pricing Supplement to each investor or
purchaser of the relevant Book-Entry Security or its agent. Pursuant to Rule 434
under the Securities Act, the Pricing
A-6
<PAGE>
Supplement may be delivered separately from the Prospectus. Outdated Pricing
Supplements (other than those retained for files) will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
- ----------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Book-Entry
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Book-Entry Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Book-Entry Security.
Date of Settlement:
- -------------------
The receipt by the Company of immediately available funds in payment
for a Book-Entry Security and the authentication and issuance of the Global
Security representing such Book-Entry Security shall constitute "settlement"
with respect to such Book-Entry Security. All orders of Book-Entry Securities
solicited by a Selling Agent or made by a Purchasing Agent and accepted by the
Company on a particular date (the "Trade Date") will be settled on a date (the
"Settlement Date") which is on or before the third Business Day after the Trade
Date pursuant to the "Settlement Procedure Timetable" set forth below, unless
the Company and the purchaser agree to settlement on another day, which shall be
no earlier than the next Business Day after the Trade Date.
Settlement Procedure Timetable:
- -------------------------------
For offers to purchase Book-Entry Securities solicited by a Selling
Agent and accepted by the Company for settlement on the first Business Day after
the Trade Date, Settlement Procedures "A" through "L" set forth above shall be
completed as soon as possible but not later than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
---------------- --------------------------------------
A 11:00 a.m. on the Trade Date
B 12:00 noon on the Trade Date
C 2:00 p.m. on the Trade Date
D 3:00 p.m. on the day before
the Settlement Date
E 9:00 a.m. on the Settlement Date
F 10:00 a.m. on the Settlement Date
G-H 2:00 p.m. on the Settlement Date
I 4:45 p.m. on the Settlement Date
J-K 5:00 p.m. on the Settlement Date
A-7
<PAGE>
If a sale is to be settled more than one Business Day after the Trade
Date, Settlement Procedures A, B and C shall be completed as soon as practicable
but in no event later that 11:00 a.m., 12:00 noon and 2:00 p.m., as the case may
be, on the first Business Day after the Trade Date. If the initial interest rate
for a Floating Rate Book-Entry Security has not been determined at the time that
Settlement Procedure "A" is completed and the Settlement Date is at least three
Business Days after the Trade Date, Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been determined but no later than 12:00 noon
and 2:00 p.m., respectively, on the second Business Day immediately preceding
the Settlement Date. Settlement Procedure "I" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the Settlement
Date.
If settlement of a Book-Entry Security is rescheduled or cancelled, the
applicable Trustee, upon obtaining knowledge thereof, will deliver to DTC,
through DTC's Participant Terminal System, a cancellation message to such effect
by no later than 2:00 p.m. on the Business Day immediately preceding the
scheduled Settlement Date.
Failure to Settle:
- ------------------
If the applicable Trustee fails to enter an SDFS deliver order with
respect to a Book-Entry Security pursuant to Settlement Procedure "G", the
applicable Trustee may deliver to DTC, through DTC's Participant Terminal
System, as soon as practicable a withdrawal message instructing DTC to debit
such Book-Entry Security to the applicable Trustee's participant account,
provided that the applicable Trustee's participant account contains a principal
amount of the Global Security representing such Book-Entry Security that is at
least equal to the principal amount to be debited. If a withdrawal message is
processed with respect to all the Book-Entry Securities represented by a Global
Security, the applicable Trustee will mark such Global Security "cancelled,"
make appropriate entries in the applicable Trustee's records and send such
cancelled Global Security to the Company. The CUSIP number assigned to such
Global Security shall, in accordance with the procedures of the CUSIP Service
Bureau of Standard & Poor's Corporation, be cancelled and not immediately
reassigned. If a withdrawal message is processed with respect to one or more,
but not all, of the Book-Entry Securities represented by a Global Security, the
applicable Trustee will exchange such Global Security for two Global Securities,
one of which shall represent such Book-Entry Security or Securities and shall be
cancelled immediately after issuance and the other of which shall represent the
remaining Book-Entry Securities previously represented by the surrendered Global
Security and shall bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in DTC, acting
on behalf of such purchaser), such participants and, in turn, the Agent for such
Book-Entry Security may enter delivery orders
A-8
<PAGE>
through DTC's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the applicable
Trustee's participant account and shall notify the Company and the applicable
Trustee thereof. Thereafter, the applicable Trustee will (i) immediately notify
the Company of such order and the Company shall transfer to such Agent funds
available for immediate use in an amount equal to the price of such Book-Entry
Security which was credited to the account of the Company maintained at the
applicable Trustee in accordance with Settlement Procedure J, and (ii) deliver
the withdrawal message and take the related actions described in the preceding
paragraph. If such failure shall have occurred for any reason other than default
by the applicable Agent to perform its obligations hereunder or under the
Distribution Agreement, the Company will reimburse such Agent on an equitable
basis for the loss of its use of funds during the period when the funds were
credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, DTC may take any actions in accordance with its SDFS
operating procedures then in effect. In the event of a failure to settle with
respect to one or more, but not all, of the Book-Entry Securities to have been
represented by a Global Security, the applicable Trustee will provide, in
accordance with Settlement Procedures "D", "E" and "G", for the authentication
and issuance of a Global Security representing the other Book-Entry Securities
to have been represented by such Global Security and will make appropriate
entries in its records. The Company will, from time to time, furnish the
applicable Trustee with a sufficient quantity of Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Issuance:
- ---------
Each Certificated Security will be dated and issued as of the date of
its authentication by the applicable Trustee. Each Certificated Security will
bear an Original Issue Date, which will be (i) with respect to an original
Certificated Security (or any portion thereof), its original issuance date
(which will be the settlement date) and (ii) with respect to any Certificated
Security (or portion thereof) issued subsequently upon transfer or exchange of a
Certificated Security or in lieu of a destroyed, lost or stolen Certificated
Security, the original issuance date of the predecessor Certificated Security,
regardless of the date of authentication of such subsequently issued
Certificated Security.
Posting Rates by Company:
- -------------------------
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change
A-9
<PAGE>
already posted rates, it will promptly advise the Agents to suspend solicitation
of offers until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
- --------------------------------
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the applicable
Trustee.
A. Communication of Sale Information to the Company by Selling Agent:
------------------------------------------------------------------
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly on the Sale Date
the following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate, the
Interest Payment Dates and the initial Interest Payment Date;
(3) Trade Date;
(4) Settlement Date;
(5) Stated Maturity;
(6) If denominated or payable in a currency other than U.S.
dollars, the relevant provisions relating thereto;
(7) If payments thereon are to be determined by reference to an
index, the relevant provisions relating thereto;
(8) issue price;
A-10
<PAGE>
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, provisions
relating to such redemption or repayment;
(12) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Base Rate,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) maximum rate,
(v) minimum rate,
(vi) initial interest rate,
(vii) Interest Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) Name, address and taxpayer identification number of the
registered owner(s) and address for payment of principal and
interest;
(14) Denomination of certificates to be delivered at settlement;
(15) original issue discount provisions, if any;
(16) Selling Agent or Purchasing Agent;
(17) Any other applicable terms.
A-11
<PAGE>
B. The Company will advise the applicable Trustee by telephone or
electronic transmission (confirmed in writing at any time on the same date) of
the information set forth in Settlement Procedure "A" above.
C. The Company will have delivered to the applicable Trustee a
pre-printed four-ply packet for such Certificated Security, which packet will
contain the following documents in forms that have been approved by the Company,
the relevant Agent and the applicable Trustee:
(1) Security with customer confirmation;
(2) Stub One - For the applicable Trustee;
(3) Stub Two - For the relevant Agent; and
(4) Stub Three - For the Company.
D. The applicable Trustee will complete such Certificated Security and
authenticate such Certificated Security and deliver it (with the confirmation)
and Stubs One and Two to the relevant Agent, and such Agent will acknowledge
receipt of the Certificated Security by stamping or otherwise marking Stub One
and returning it to the applicable Trustee. Such delivery will be made only
against such acknowledgment of receipt and evidence that instructions have been
given by such Agent for payment to the account of the Company at such account as
the Company shall have specified to such Agent and the applicable Trustee, in
immediately available funds, of an amount equal to the price of such
Certificated Security less such Agent's commission. In the event that the
instructions given by such Agent for payment to the account of the Company are
revoked, the Company will as promptly as possible wire transfer to the account
of such Agent an amount of immediately available funds equal to the amount of
such payment made and such Agent will as promptly as possible return the
Certificated Security and all Stubs to the Company.
E. Unless the relevant Agent is the end purchaser of such Certificated
Security, such Agent will deliver such Certificated Security (with confirmation)
to the customer against payment in immediately available funds. Such Agent will
obtain the acknowledgment of receipt of such Certificated Security by retaining
Stub Two.
F. The applicable Trustee will send Stub Three to the Company by
first-class mail. At any time upon request from an Agent, the applicable Trustee
will also send to the Company a statement setting forth the principal amount of
the Certificated Securities outstanding as of that date under the applicable
Indenture and setting forth a brief description of any sales of which the
Company has advised the applicable Trustee that have not yet been settled.
A-12
<PAGE>
Preparation of Pricing Supplement by Company:
- ---------------------------------------------
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, such number of such Pricing Supplement as the Agent may
reasonably request, not later than 5:00 p.m., New York City time, on the
Business Day following the Trade Date, or if the Company and the purchaser agree
to settlement on the date of acceptance of such offer, not later than noon, New
York City time, on such date. The Company will arrange to file a copy of the
Pricing Supplement with the Commission not later than the close of business of
the Commission on the second Business Day following the date on which such
Pricing Supplement is first used.
In each instance that a Pricing Supplement is prepared, the relevant
Agent will provide a copy of such Pricing Supplement to each investor or
purchaser of the relevant Certificated Security or its agent. Pursuant to Rule
434 under the Securities Act, the Pricing Supplement may be delivered separately
from the Prospectus. Outdated Pricing Supplements (other than those retained for
files) will be destroyed.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
- ----------------------------------------------------------------------
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement) in relation to such Certificated Security prior to or together with
the earlier of the delivery to such purchaser or its agent of (a) the
confirmation of sale or (b) the Certificated Security.
Date of Settlement:
- -------------------
The receipt by the Company of immediately available funds in exchange
for an authenticated Certificated Security delivered to the relevant Agent and,
if applicable, such Agent's delivery of such Certificated Security against
receipt of immediately available funds, shall constitute "settlement" with
respect to such Security. All offers of Certificated Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company will be
settled on a date (the "Settlement Date") which is the third Business Day after
the date of acceptance of such offer, unless the Company and the purchaser agree
to settlement (a) on another Business Day after the acceptance of such offer or
(b) with respect to an offer accepted by the Company prior to 10:00 a.m., New
York City time, on the date of such acceptance.
A-13
<PAGE>
For sales by the Company of Certificated Securities to a Purchasing
Agent or through a Selling Agent (unless otherwise specified pursuant to a Terms
Agreement), Settlement Procedures "A" through "F" set forth above shall be
completed on or before the respective times in New York City set forth below:
Settlement
Procedure Time
-------------- ---------------------------------
A 2:00 p.m. on the Business Day
before Settlement Date
B 3:00 p.m. on the Business Day
before Settlement Date
C-D 12:00 noon on Settlement Date
E 12:00 noon on Settlement Date
F 5:00 p.m. on Settlement Date
If the Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities, Settlement Procedure "B" will be given by the
Company by 11:00 a.m., New York City time.
The Company shall not use any proceeds advanced by a Selling Agent to
acquire securities prior to the Selling Agent receiving the Certificated
Securities from the Company.
Failure of Purchaser to Pay Selling Agent:
- ------------------------------------------
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the applicable Trustee and the Company thereof by telephone (confirmed in
writing) or by facsimile transmission or other acceptable written means. The
Selling Agent will immediately return the Certificated Security to the
applicable Trustee. Immediately upon receipt of such Certificated Security by
the applicable Trustee, the Company will return to the Selling Agent an amount
equal to the amount previously paid to the Company in respect of such
Certificated Security. Such wire transfer will be made on the Settlement Date,
if possible, and in any event not later than the Business Day following the
Settlement Date. If the failure shall have occurred for any reason other than a
default by such Selling Agent in the performance of its obligations hereunder
and under the Distribution Agreement, then the Company will reimburse the
Selling Agent on an equitable basis for its loss of the use of funds during the
period when they were credited to the account of the Company.
The applicable Trustee will cancel the Certificated Security in respect
of which the failure occurred, make appropriate entries in its records and,
unless otherwise instructed by the Company, destroy the Certificated Security.
A-14
<PAGE>
EXHIBIT 4.1
================================================================================
WELLS FARGO & COMPANY
TO
THE FIRST NATIONAL BANK OF CHICAGO
TRUSTEE
----------------
INDENTURE
DATED AS OF AUGUST 30, 1999
----------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE>
WELLS FARGO & COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF AUGUST 30, 1999
TRUST INDENTURE ACT SECTION INDENTURE SECTION
ss.310(a)(1)................................................... 609
(a)(2).................................................... 609
(a)(3).................................................... Not Applicable
(a)(4).................................................... Not Applicable
(a)(5).................................................... 609
(b)....................................................... 608, 610
(c)....................................................... Not Applicable
ss.311(a)...................................................... 613
(b)....................................................... 613
ss.312(a)...................................................... 701, 702(a)
(b)....................................................... 702(b)
(c)....................................................... 702(c)
ss.313(a)...................................................... 703(a)
(b)....................................................... 703(a)
(c)....................................................... 703(a)
(d)....................................................... 703(b)
ss.314(a)...................................................... 704, 1004
(b)....................................................... Not Applicable
(c)(1).................................................... 102
(c)(2).................................................... 102
(c)(3).................................................... Not Applicable
(d)....................................................... Not Applicable
(e)....................................................... 102
ss.315(a)...................................................... 601
(b)....................................................... 602
(c)....................................................... 601
(d)....................................................... 601
(e)....................................................... 514
ss.316(a)...................................................... 101
(a)(1)(A)................................................. 104(h), 502
512
(a)(1)(B)................................................. 104(h), 513
(a)(2).................................................... Not Applicable
(b)....................................................... 508
(c)....................................................... 104(h)
ss.317(a)(1)................................................... 503
(a)(2).................................................... 504
(b)....................................................... 1003
ss.318(a)...................................................... 107
(c)....................................................... 107
- -----------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
----
Parties .............................................................1
Recitals .............................................................1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101 Definitions........................................................1
Act...................................................................2
Affiliate.............................................................2
Authorized Newspaper..................................................2
Bearer Security.......................................................2
Board of Directors....................................................2
Board Resolution......................................................2
Business Day..........................................................2
Capital Exchange Agent................................................3
Capital Exchange Date.................................................3
Capital Exchange Price................................................3
Capital Securities....................................................3
Capital Security Election Form........................................3
CEDEL or CEDEL S.A....................................................3
Closing Price.........................................................3
Commission............................................................3
Common Stock..........................................................3
Company...............................................................4
Company Request and Company Order.....................................4
Conversion Price......................................................4
Convertible Securities................................................4
Corporate Trust Office................................................4
corporation...........................................................4
coupon................................................................4
Debt Securities.......................................................4
Defaulted Interest....................................................4
Depositary............................................................4
Designated Currency...................................................4
Dollar or $...........................................................4
ECU...................................................................4
Eligible Instruments..................................................5
Euroclear.............................................................5
European Communities..................................................5
Event of Default......................................................5
<PAGE>
Exchange Rate.........................................................5
Exchange Rate Agent...................................................5
Exchange Rate Officer's Certificate...................................5
Foreign Currency......................................................5
Global Exchange Agent.................................................5
Global Exchange Date..................................................5
Global Security.......................................................5
Holder................................................................5
Indenture.............................................................5
interest .............................................................6
Interest Payment Date.................................................6
Market Value..........................................................6
Maturity..............................................................6
Officers'Certificate..................................................6
Opinion of Counsel....................................................6
Optional Securities Fund..............................................6
Original Issue Discount Security......................................6
Outstanding...........................................................6
Paying Agent..........................................................7
Perpetual Preferred Stock.............................................7
Person................................................................7
Place of Capital Exchange.............................................7
Place of Payment......................................................7
Predecessor Security..................................................7
Primary Federal Regulator.............................................8
ranking junior to the Debt Securities.................................8
ranking on a parity with the Debt Securities..........................8
Redemption Date.......................................................8
Redemption Price......................................................8
Registered Security...................................................8
Regular Record Date...................................................8
Remarketing Entity....................................................8
Repayment Date........................................................8
Repayment Price.......................................................9
Responsible Officer...................................................9
Rights................................................................9
Secondary Offering....................................................9
Securities Fund.......................................................9
Security Register.....................................................9
Senior Debt...........................................................9
Special Record Date...................................................9
Stated Maturity......................................................10
Trust Indenture Act..................................................10
Trustee..............................................................10
United States........................................................10
United States Alien..................................................10
ii
<PAGE>
U.S. Government Obligations..........................................10
Section 102 Compliance Certificates and Opinions........................10
Section 103 Form of Documents Delivered to Trustee......................11
Section 104 Acts of Holders.............................................12
Section 105 Notices, etc., to Trustee and Company.......................13
Section 106 Notice to Holders; Waiver...................................14
Section 107 Conflict with Trust Indenture Act...........................15
Section 108 Effect of Headings and Table of Contents....................15
Section 109 Successors and Assigns......................................15
Section 110 Separability Clause.........................................15
Section 111 Benefits of Indenture.......................................15
Section 112 Governing Law...............................................15
Section 113 Legal Holidays..............................................15
Section 114 Counterparts................................................16
ARTICLE TWO
Debt Security Forms
Section 201 Forms Generally.............................................16
Section 202 Form of Trustee's Certificate of Authentication.............17
Section 203 Debt Securities in Global Form..............................17
ARTICLE THREE
The Debt Securities
Section 301 Amount Unlimited; Issuance in Series........................18
Section 302 Denominations...............................................21
Section 303 Execution, Authentication, Delivery and Dating..............21
Section 304 Temporary Debt Securities...................................24
Section 305 Registration; Registration of Transfer and Exchange.........27
Section 306 Mutilated, Destroyed, Lost and Stolen Debt Securities.......30
Section 307 Payment of Interest; Interest Rights Preserved..............31
Section 308 Persons Deemed Owners.......................................33
Section 309 Cancellation................................................34
Section 310 Computation of Interest.....................................34
Section 311 Certification by a Person Entitled to Delivery of a Bearer
Security....................................................34
Section 312 Judgments...................................................34
ARTICLE FOUR
Satisfaction and Discharge
Section 401 Satisfaction and Discharge of Indenture.....................35
Section 402 Application of Trust Money and Eligible Instruments.........37
Section 403 Satisfaction, Discharge and Defeasance of Debt Securities
of any Series...............................................37
iii
<PAGE>
ARTICLE FIVE
Remedies
Section 501 Events of Default...........................................40
Section 502 Acceleration of Maturity; Rescission and Annulment..........40
Section 503 Collection of Indebtedness and Suits for Enforcement by
Trustee.....................................................41
Section 504 Trustee May File Proofs of Claim............................42
Section 505 Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.......................................43
Section 506 Application of Money Collected..............................43
Section 507 Limitation on Suits.........................................44
Section 508 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Exchange Debt Securities for
Capital Securities..........................................45
Section 509 Restoration of Rights and Remedies..........................45
Section 510 Rights and Remedies Cumulative..............................45
Section 511 Delay or Omission Not Waiver................................45
Section 512 Control by Holders of Debt Securities.......................46
Section 513 Waiver of Past Defaults.....................................46
Section 514 Undertaking for Costs.......................................46
Section 515 Waiver of Stay or Extension Laws............................47
ARTICLE SIX
The Trustee
Section 601 Certain Duties and Responsibilities.........................47
Section 602 Notice of Default...........................................47
Section 603 Certain Rights of Trustee...................................48
Section 604 Not Responsible for Recitals or Issuance of Debt Securities.49
Section 605 May Hold Debt Securities or Coupons.........................49
Section 606 Money Held in Trust.........................................49
Section 607 Compensation and Reimbursement..............................49
Section 608 Disqualification; Conflicting Interests.....................50
Section 609 Corporate Trustee Required; Eligibility.....................50
Section 610 Resignation and Removal; Appointment of Successor...........51
Section 611 Acceptance of Appointment by Successor......................52
Section 612 Merger, Conversion, Consolidation or Succession to
Business....................................................53
Section 613 Preferential Collection of Claims Against Company...........54
Section 614 Authenticating Agent........................................54
ARTICLE SEVEN
Holders'Lists and Reports By Trustee and Company
Section 701 Company to Furnish Trustee Names and Addresses of Holders...55
Section 702 Preservation of Information; Communications to Holders......56
iv
<PAGE>
Section 703 Reports by Trustee..........................................56
Section 704 Reports by Company..........................................57
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801 Company May Consolidate, etc. Only on Certain Terms.........57
Section 802 Successor Corporation Substituted...........................57
ARTICLE NINE
Supplemental Indentures
Section 901 Supplemental Indentures without Consent of Holders..........58
Section 902 Supplemental Indentures with Consent of Holders.............59
Section 903 Execution of Supplemental Indentures........................61
Section 904 Effect of Supplemental Indentures...........................61
Section 905 Conformity with Trust Indenture Act.........................61
Section 906 Reference in Debt Securities to Supplemental Indentures.....61
ARTICLE TEN
Covenants
Section 1001 Payment of Principal, Premium and Interest..................61
Section 1002 Maintenance of Office or Agency.............................62
Section 1003 Money for Debt Securities Payments to Be Held in Trust......63
Section 1004 Officers'Certificate as to Default..........................64
Section 1005 Waiver of Certain Covenants.................................65
Section 1006 Payment of Additional Amounts...............................65
ARTICLE ELEVEN
Redemption of Debt Securities
Section 1101 Applicability of Article....................................66
Section 1102 Election to Redeem; Notice to Trustee.......................66
Section 1103 Selection by Trustee of Debt Securities to be Redeemed......66
Section 1104 Notice of Redemption........................................67
Section 1105 Deposit of Redemption Price.................................67
Section 1106 Debt Securities Payable on Redemption Date..................68
Section 1107 Debt Securities Redeemed in Part............................69
v
<PAGE>
ARTICLE TWELVE
Sinking Funds
Section 1201 Applicability of Article....................................69
Section 1202 Satisfaction of Sinking Fund Payments with Debt Securities..69
Section 1203 Redemption of Debt Securities for Sinking Fund..............70
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301 Applicability of Article....................................70
Section 1302 Repayment of Debt Securities................................70
Section 1303 Exercise of Option; Notice..................................71
Section 1304 Election of Repayment by Remarketing Entities...............72
Section 1305 Securities Payable on the Repayment Date....................72
ARTICLE FOURTEEN
Exchange of Capital Securities for Debt Securities
Section 1401 Applicability of Article....................................72
Section 1402 Exchange of Capital Securities for Debt Securities at
Stated Maturity.............................................73
Section 1403 Right of Early Exchange of Capital Securities for Debt
Securities..................................................73
Section 1404 Notices of Exchange.........................................74
Section 1405 Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities............................76
Section 1406 Election to Exchange........................................77
Section 1407 Deposit of Capital Exchange Price...........................77
Section 1408 Debt Securities Due on Capital Exchange Date; Debt
Securities Exchanged in Part................................78
Section 1409 Form of Capital Security Election Form......................79
Section 1410 Fractional Capital Securities...............................80
Section 1411 Company to Obtain Governmental and Regulatory Approvals.....80
Section 1412 Taxes on Exchange...........................................80
Section 1413 Covenants as to Capital Securities and Secondary Offering...80
Section 1414 Provision in Case of Consolidation, Merger or Transfer of
Assets......................................................81
Section 1415 Trustee Not Responsible.....................................81
Section 1416 Revocation of Obligation to Exchange Capital Securities
for Debt Securities.........................................82
Section 1417 Optional Securities Funds...................................82
ARTICLE FIFTEEN
Securities Funds
Section 1501 Creation of Securities Funds................................83
vi
<PAGE>
Section 1502 Designations of Securities Funds............................84
Section 1503 Covenant of the Company to Obtain Securities Funds..........84
ARTICLE SIXTEEN
Meetings of Holders of Debt Securities
Section 1601 Purposes for Which Meetings May Be Called...................85
Section 1602 Call, Notice and Place of Meetings..........................85
Section 1603 Persons Entitled to Vote at Meetings........................86
Section 1604 Quorum; Action..............................................86
Section 1605 Determination of Voting Rights; Conduct and Adjournment of
Meetings....................................................87
Section 1606 Counting Votes and Recording Action of Meetings.............87
ARTICLE SEVENTEEN
Defeasance
Section 1701 Termination of Company's Obligations........................88
Section 1702 Repayment to Company........................................89
Section 1703 Indemnity for Eligible Instruments..........................89
ARTICLE EIGHTEEN
Subordination of Debt Securities
Section 1801 Debt Securities Subordinate to Senior Debt..................90
Section 1802 Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require
Further Evidence as to Ownership of Senior Debt; Trustee
Not Fiduciary to Holders of Senior Debt.....................92
Section 1803 Payment Permitted If No Default.............................92
Section 1804 Trustee Not Charged with Knowledge of Prohibition...........93
Section 1805 Trustee to Effectuate Subordination.........................93
Section 1806 Rights of Trustee as Holder of Senior Debt..................93
Section 1807 Article Applicable to Paying Agents.........................93
Section 1808 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.......................94
ARTICLE NINETEEN
Conversion of Convertible Securities
Section 1901 Applicability of Article....................................94
Section 1902 Right to Convert............................................94
Section 1903 Exercise of Conversion Privilege; Delivery of Common Stock
on Conversion; No Adjustment for Interest or Dividends......95
Section 1904 Cash Payments in Lieu of Fractional Shares..................96
Section 1905 Conversion Price............................................96
vii
<PAGE>
Section 1906 Adjustment to Conversion Price..............................96
Section 1907 Effect of Reclassification, Consolidation, Merger or Sale..100
Section 1908 Taxes on Shares Issued.....................................100
Section 1909 Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock......................101
Section 1910 Trustee Not Responsible....................................101
Section 1911 Notice to Holders Prior to Certain Actions.................101
Section 1912 Covenant to Reserve Shares.................................102
Testimonium ....................................................... 103
Signature and Seals ............................................... 103
Acknowledgements .................................................. 104
Exhibit A ......................................................... A-1
Exhibit B ......................................................... B-1
viii
<PAGE>
INDENTURE (the "Indenture") dated as of August 30, 1999 between WELLS
FARGO & COMPANY, a Delaware corporation (hereinafter called the "Company"),
having its principal place of business at 420 Montgomery Street, San Francisco,
California 94163, and THE FIRST NATIONAL BANK OF CHICAGO, a national banking
association (hereinafter called the "Trustee"), having its Corporate Trust
Office at One North State Street, 9th Floor, Chicago, Illinois 60602.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes, bonds and other evidences of indebtedness (herein called the
"Debt Securities").
All things necessary have been done to make this Indenture a valid
agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities of any series created and issued on or after the date hereof by the
Holders thereof, it is mutually covenanted and agreed for the equal and
proportionate benefit of all Holders of such Debt Securities or of any such
series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust
Indenture Act, either directly or by reference therein, as in force at
the date as of which this instrument was executed, except as provided
in Section 905, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles"
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with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted in the United
States at the date of such computation; and
(4) the words "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.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"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.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication or in the English language customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer including, without limitation, unless the
context otherwise indicates, a Debt Security in global bearer form.
"Board of Directors" means either the board of directors of the
Company, or the executive or any other committee of that board duly authorized
to act in respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Debt Securities and the forms and terms
thereof), such action may be taken by any committee of the Board or the Company
or any officer or employee of the Company authorized to take such action by a
Board Resolution.
"Business Day", when used with respect to any Place of Payment or Place
of Capital Exchange, means any day which is not a Saturday or Sunday and which
is not a legal holiday or a day on which banking institutions or trust companies
in that Place of Payment or Place of Capital Exchange are authorized or
obligated by law or executive order to close.
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"Capital Exchange Agent" means the Person or Persons appointed by the
Company to give notices and to exchange Debt Securities of any series for
Capital Securities as specified in Article Fourteen.
"Capital Exchange Date", when used with respect to the Debt Securities
of any series, means any date on which such Debt Securities are to be exchanged
for Capital Securities pursuant to this Indenture.
"Capital Exchange Price", when used with respect to any Debt Security
of any series to be exchanged for Capital Securities, means the amount of
Capital Securities for which such Debt Security is to be exchanged pursuant to
this Indenture or the aggregate sale price of such Capital Securities in the
Secondary Offering for such Debt Security, as the case may be.
"Capital Securities" means any securities issued by the Company which
consist of any of the following: (i) Common Stock, (ii) Perpetual Preferred
Stock or (iii) securities which at the date of issuance may be issued in
exchange for, or the proceeds from the sale of which may be designated as
Securities Funds or Optional Securities Funds for the payment of the principal
of, "mandatory convertible securities" under applicable regulations of the
Primary Federal Regulator. Capital Securities may have such terms, rights and
preferences as may be determined by the Company.
"Capital Security Election Form" means a form substantially in the form
included in Section 1409.
"CEDEL" or "CEDEL S.A." means Centrale de Livraison de Valeurs
Mobilieres S.A.
"Closing Price" has the meaning specified in Section 1906(d).
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, 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 on such date.
"Common Stock" means, when used with reference to the capital stock of
the Company, the class of stock which, at the date of execution of this
Indenture, is designated as common stock of the Company and stock of any class
or classes into which such common stock or any such other class may thereafter
be changed or reclassified. In case by reason of the operation of Article
Nineteen, the Convertible Securities shall be convertible into any other shares
or other securities or property of the Company or any other corporation, any
reference in this Indenture to the conversion of Convertible Securities pursuant
to Article Nineteen shall be deemed to refer to and include conversion of
Convertible Securities into such other shares or other securities or property.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board, a Vice Chairman of the Board,
the President or a Vice President (any references to a Vice President of the
Company herein shall be deemed to include 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"), the Treasurer, an Assistant Treasurer, the Controller,
an Assistant Controller, Secretary or an Assistant Secretary of the Company, or
by another officer of the Company duly authorized to sign by a Board Resolution,
and delivered to the Trustee.
"Conversion Price" has the meaning specified in Section 1905.
"Convertible Securities" means any series of Debt Securities that are
designated as such pursuant to Section 301.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which any particular time its corporate trust business shall be
administered.
The term "corporation" includes corporations, associations, companies
and business trusts.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Debt Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Debt Securities authenticated and
delivered under this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Debt Securities of any series
issuable or issued in the form of a Global Security, the Person designated as
Depositary by the Company pursuant to Section 301 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "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,
"Depositary" as used with respect to the Debt Securities of any such series
shall mean the Depositary with respect to the Debt Securities of that series.
"Designated Currency" has the meaning specified in Section 312.
"Dollar" or "$" means the 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.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
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"Eligible Instruments" means monetary assets, money market instruments
and securities that are payable in Dollars only and essentially risk free as to
collection of principal and interest, including U.S. Government Obligations.
"Euroclear" means Morgan Guarantee Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" shall have the meaning specified as contemplated in
Section 301.
"Exchange Rate Agent" shall have the meaning specified as contemplated
in Section 301.
"Exchange Rate Officer's Certificate", with respect to any date for the
payment of principal of (and premium, if any) and interest on any series of Debt
Securities, means a certificate setting forth the applicable Exchange Rate and
the amounts payable in Dollars and Foreign Currencies in respect of the
principal of (and premium, if any) and interest on Debt Securities denominated
in ECU, any other composite currency or Foreign Currency, and signed by the
Chairman of the Board, a Vice Chairman of the Board, the President, the
Treasurer or any Assistant Treasurer of the Company or the Exchange Rate Agent
appointed pursuant to Section 301, and delivered to the Trustee.
"Foreign Currency" means a currency issued by the government of any
country other than the United States of America.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Debt Security issued to evidence all or part
of a series of Debt Securities in accordance with Section 303.
"Holder", with respect to a Registered Security, means a Person in
whose name such Registered Security is registered in the Security Register and,
with respect to a Bearer Security or a coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Debt Securities established as contemplated by
Section 301.
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The term "interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", with respect to any Debt Security, means the
Stated Maturity of an installment of interest on such Debt Security.
"Market Value" of any Capital Securities issued on any Capital Exchange
Date for Debt Securities of any series shall be the sale price of such Capital
Securities which are sold in the Secondary Offering for the Debt Securities of
such series. In the event no such Secondary Offering takes place, the Market
Value of such Capital Securities shall be the fair value of such Capital
Securities on such Capital Exchange Date for Debt Securities of such series as
determined by three independent nationally recognized investment banking firms
selected by the Company.
"Maturity", when used with respect to any Debt Security, means the date
on which the principal of such Debt Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, repayment at the option of the Holder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
counsel for the Company, or who may be other counsel acceptable to the Trustee,
which is delivered to the Trustee.
"Optional Securities Fund" means a fund pursuant to which the proceeds
of sales of Capital Securities may be designated on the books of the Company for
the payment of any of the principal of any Debt Security pursuant to Section
1417 of this Indenture.
"Original Issue Discount Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Debt Securities means, as of
the date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debt Securities or portions thereof for whose payment or
redemption money or Eligible Instruments in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in
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trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities and any coupons appertaining
thereto; provided, however, that if such Debt Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Debt Securities in exchange for or in lieu of which
other Debt Securities have been authenticated and delivered, or which
have been paid, pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Debt Securities Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon such request, demand, authorization,
direction, notice, consent or waiver, only Debt Securities which the Trustee
knows to be so owned shall be so disregarded. Debt Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Debt Securities and that the pledgee is not the Company or
any other obligor upon the Debt Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities on behalf
of the Company.
"Perpetual Preferred Stock" means any stock of any class of the Company
which has a preference over Common Stock in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not mandatorily redeemable or repayable,
or redeemable or repayable at the option of the Holder, otherwise than in shares
of Common Stock or Perpetual Preferred Stock of another class or series or with
the proceeds of the sale of Common Stock or Perpetual Preferred Stock.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Capital Exchange", when used with respect to Debt Securities
of any series, means any place where the Debt Securities of such series are
exchangeable for Capital Securities as specified pursuant to Section 301.
"Place of Payment", when used with respect to the Debt Securities of
any series means any place where the principal of (and premium, if any) and
interest on the Debt Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Debt Security means every
previous Debt Security evidencing all or a portion of the same debt as that
evidenced by such particular Debt Security; and, for the purposes of this
definition, any Debt Security authenticated and delivered
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under Section 306 in lieu of a lost, destroyed or stolen Debt Security shall be
deemed to evidence the same debt as the lost, destroyed or stolen Debt Security.
"Primary Federal Regulator" means the primary United States federal
regulator of the Company (which at the date of this Indenture is the Board of
Governors of the Federal Reserve System), or any successor body or institution.
"ranking junior to the Debt Securities," when used with respect to any
obligation of the Company shall mean any obligation of the Company which (a)
ranks junior to and not equally with or prior to the Debt Securities (or any
other obligations of the Company ranking on a parity with the Debt Securities)
in right of payment upon the happening of any event of the kind specified in the
first sentence of the second paragraph in Section 1801 or (b) is specifically
designated as ranking junior to the Debt 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 Debt Securities,
shall be deemed to prevent such obligations from constituting obligations
ranking junior to the Debt Securities.
"ranking on a parity with the Debt 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 Debt Securities in right of payment
upon the happening of any event of the kind specified in the first sentence of
the second paragraph in Section 1801 or (b) is specifically designated as
ranking on a parity with the Debt Securities by express provision in the
instrument creating or evidencing such obligation. The securing of any
obligations of the Company, otherwise ranking on a parity with the Debt
Securities, shall not be deemed to prevent such obligations from constituting
obligations ranking on a parity with the Debt Securities.
"Redemption Date", when used with respect to any Debt Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Debt Security in the form of Registered
Securities established pursuant to Section 201 which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Remarketing Entity", when used with respect to Debt Securities of any
series which are repayable at the option of the Holders thereof before their
Stated Maturity, means any person designated by the Company to purchase any such
Debt Securities.
"Repayment Date", when used with respect to any Debt Security to be
repaid upon exercise of an option for repayment by the Holder, means the date
fixed for such repayment pursuant to this Indenture.
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"Repayment Price", when used with respect to any Debt Security to be
repaid upon exercise an option for repayment by the Holder, means the price at
which it is to be repaid pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Rights" has the meaning specified in Section 1906(c).
"Secondary Offering", when used with respect to the Debt Securities of
any series, means the offering and sale by the Company of Capital Securities for
the account of Holders of Debt Securities of such series who elect to receive
cash and not Capital Securities on the Capital Exchange Date for such series.
"Securities Fund" means a fund pursuant to which the proceeds of sales
of Capital Securities are designated on the books of the Company for the payment
of any principal of any Debt Security pursuant to the provisions of Section
1501.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means
(i) any of the Company's indebtedness for borrowed or
purchased money, whether or not evidenced by bonds, debentures, notes
or other written instruments,
(ii) the Company's obligations under letters of credit,
(iii) any of the Company's indebtedness or other obligations
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 clauses (i), (ii) and
(iii), 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 whether outstanding on the date of execution of this Indenture or
thereafter incurred, other than obligations ranking on a parity with the Debt
Securities or junior to the Debt Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", when used with respect to any Debt Security or any
installment of interest thereon, means the date specified in such Debt Security
or a coupon representing such installment of interest as the fixed date on which
the principal of such Debt Security or such installment is due and payable.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Debt Securities of any series shall mean the Trustee with respect
to Debt Securities of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States, and shall also include a depository receipt issued by a bank (as defined
in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture (other than the delivery of any
Debt Security to the Trustee for authentication pursuant to Section 303), the
Company shall furnish to the Trustee, if so requested by 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, if any, have been complied
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with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(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 each such individual,
he or she has made such examination or investigation as is necessary to
enable him or her 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, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate 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, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If Debt Securities of a series are issuable in whole or in
part as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Debt Securities voting in favor thereof, either in person
or by proxies duly appointed in writing, at any meeting of Holders of Debt
Securities duly called and held in accordance with the provisions of Article
Sixteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee,
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
the holding by any Person of a Debt Security, shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 1606.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities in the amount and with the serial numbers
therein described; or such facts may be proved by the certificate or affidavit
of the Person holding such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee
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may in any instance require further proof with respect to any of the matters
referred to in this Section.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Debt Security shall bind every future
holder of the same Debt Security and the Holder of every Debt Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, suffered or omitted by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debt Security.
(g) For purposes of determining the principal amount of Outstanding
Debt Securities of any series of Holders of which are required, requested or
permitted to give any request, demand, authorization, direction, notice,
consent, waiver or take any other Act under this Indenture, (i) each Original
Issue Discount Security shall be deemed to have the principal amount determined
by the Trustee that could be declared to be due and payable pursuant to the
terms of such Original Issue Discount Security as of the date there is delivered
to the Trustee and, where it is hereby expressly required, to the Company, such
Act by Holders of the required aggregate principal amount of the Outstanding
Debt Securities of such series and (ii) each Debt Security denominated in a
Foreign Currency or composite currency shall be deemed to have the principal
amount determined by the Exchange Rate Agent by converting the principal amount
of such Debt Security in the currency in which such Debt Security is denominated
into Dollars at the Exchange Rate as of the date such Act is delivered to the
Trustee and, where it is hereby expressly required, to the Company, by Holders
of the required aggregate principal amount of the Outstanding Debt Securities of
such series (or, if there is no such rate on such date, such rate on the date
determined as specified as contemplated in Section 301).
(h) The Company may set a record date for purposes of determining the
identity of Holders of Debt Securities of any series entitled to vote or consent
to any action by vote or consent authorized or permitted by Section 512 or
Section 513. 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 Holders of
such Debt Securities furnished to the Trustee pursuant to Section 701 prior to
such solicitation.
SECTION 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided), if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
the
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address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, (1) such notice shall be
sufficiently given to Holders of Registered Securities if in writing and mailed,
first-class postage prepaid, to each Holder of a Registered Security affected by
such event, at such Holder's address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice; and (2) such notice shall be sufficiently given
to Holders of Bearer Securities by publication thereof in an Authorized
Newspaper in The City of New York and, if the Debt Securities of such series are
then listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so require, in London, and, if
the Debt Securities of such series are then listed on the Luxembourg Stock
Exchange and such stock exchange shall so require, in Luxembourg and, if the
Debt Securities of such series are then listed on any other stock exchange
outside the United States and such stock exchange shall so require, in any other
required city outside the United States or, if not practicable, in Europe on a
Business Day at least twice, the first such publication to be not later than the
latest date and not earlier than the earliest date prescribed for the giving of
such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders when said notice is required to be given
pursuant to any provision of this Indenture or of the Debt Securities, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be a sufficient giving of such notice. In any case where notice to
Holders of Registered Securities is to be given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder of a Registered Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice by publication to Holders of Bearer Securities given as provided above.
In case, by reason of the suspension of publication of any Authorized
Newspaper, or by reason of any other cause, it shall be impossible or
impracticable to make publication of any notice to Holders of Bearer Securities
as provided above, then such method of publication or notification as shall be
made with the approval of the Trustee shall constitute a sufficient publication
of such notice. Neither failure to give notice by publication to Holders of
Bearer Securities as provided above, nor any defect in any notice so published,
shall affect the sufficiency of any notice mailed to Holders of Registered
Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act required or permitted under this Indenture shall
be in the English language, except that any published notice may be in an
official language of the country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Debt Securities or
coupons 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Debt Securities or coupons, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, any Paying Agent and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Debt Securities and coupons shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Capital
Exchange Date, Repayment Date or Stated Maturity of any Debt Security shall not
be a Business Day at any Place of Payment or Place of Capital Exchange, then
(notwithstanding any other provision of this Indenture or of the Debt Securities
or coupons) payment of interest or principal (and premium, if any) or exchange
of Debt Securities for Capital Securities or cash need not be made at such Place
of Payment or Place of Capital Exchange on such date, but may be made on the
next succeeding
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Business Day at such Place of Payment or Place of Capital Exchange with the same
force and effect as if made on the Interest Payment Date, Capital Exchange Date,
Redemption Date, Repayment Date or at the Stated Maturity, and no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, Capital Exchange Date or Stated Maturity, as the case may
be.
SECTION 114. Counterparts.
This Indenture 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 Indenture.
ARTICLE TWO
DEBT SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, and the Bearer Securities and
related coupons, if any, of each series shall be in substantially the form
(including temporary or permanent global form) as shall be established in or
pursuant to a Board Resolution or in one or more 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 and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Debt Securities or coupons, as evidenced by their
signatures on the Debt Securities or coupons. If the form of Debt Securities of
any series or coupons (including any such Global Security) is established by
action taken pursuant to a Board Resolution, 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 Company
Order contemplated by Section 303 for the authentication and delivery of such
Debt Securities or coupons.
Unless otherwise specified as contemplated by Section 301, Debt
Securities in bearer form other than Debt Securities in temporary or permanent
global form shall have coupons attached.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by the execution of such Debt Securities and coupons.
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SECTION 202. Form of Trustee's Certificate of Authentication.
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
-------------------------------------
as Trustee
By
-----------------------------------
Authorized Officer
SECTION 203. Debt Securities in Global Form.
If Debt Securities of a series are issuable in whole or in part in
global form, as specified as contemplated by Section 301, then, notwithstanding
clause (12) of Section 301 and the provisions of Section 302, such Global
Security shall represent such of the outstanding Debt Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Debt Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Debt Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amounts, of Outstanding Debt Securities represented thereby shall be made in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or Section 304.
The provisions of the last sentence of Section 303(g) shall apply to
any Debt Securities represented by a Debt Security in global form if such Debt
Security was never issued and sold by the Company and the Company delivers to
the Trustee the Debt Security in global form together with written instructions
(which need not comply with Section 102 and need not be accompanied by an
Opinion of Counsel) with respect to the reduction in the principal amount of
Debt Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303(g).
Global Securities may be issued in either registered or bearer form and
in either temporary or permanent form.
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ARTICLE THREE
THE DEBT SECURITIES
SECTION 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Debt Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) the limit, if any, upon the aggregate principal amount of
the Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Debt Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Debt Securities of the series
pursuant to Section 304, 305, 306, 906, 1107, 1303, 1408 or 1903 and
except for any Debt Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Debt Securities of
the series shall bear interest, or the method or methods by which such
rate or rates may be determined, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable, the Regular Record Date for the interest
payable on any Registered Security on any Interest Payment Date and the
circumstances, if any, in which the Company may defer interest
payments;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on
Debt Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of
transfer, Debt Securities of the series may be surrendered for exchange
and notices and demands to or upon the Company in respect of the Debt
Securities of the series and this Indenture may be served and where
notices to Holders pursuant to Section 106 will be published;
(6) if applicable, the period or periods within which or the
date or dates on which, the price or prices at which and the terms and
conditions upon which Debt Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
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(7) if applicable, the place or places at which, the period or
periods within which, the price or prices at which and the terms and
conditions upon which Debt Securities shall be exchangeable for Capital
Securities of the Company, which terms and conditions shall not be
inconsistent with Article Fourteen;
(8) any covenant or option of the Company to create a
Securities Fund for the repayment of the Debt Securities and the terms
and conditions of such Securities Fund, which terms and conditions
shall not be inconsistent with Article Fifteen;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(10) whether Debt Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether Debt
Securities of the series are to be issuable with or without coupons or
both and, in the case of Bearer Securities, the date as of which such
Bearer Securities shall be dated if other than the date of original
issuance of the first Debt Security of such series of like tenor and
term to be issued;
(11) whether the Debt Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities and,
in such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or
temporary and, if applicable, the Global Exchange Date;
(12) if Debt Securities of the series are to be issuable
initially in the form of a temporary Global Security, the circumstances
under which the temporary Global Security can be exchanged for
definitive Debt Securities and whether the definitive Debt Securities
will be Registered and/or Bearer Securities and will be in global form
and whether interest in respect of any portion of such Global Security
payable in respect of an Interest Payment Date prior to the Global
Exchange Date shall be paid to any clearing organization with respect
to a portion of such Global Security held for its account and, in such
event, the terms and conditions (including any certification
requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to
interest payable on such Interest Payment Date if other than as
provided in this Article Three;
(13) whether, and under what conditions, additional amounts
will be payable to Holders of Debt Securities of the series pursuant to
Section 1006;
(14) the denominations in which any Registered Securities of
the series shall be issuable, if other than denominations of $1,000 and
any integral multiple thereof, and the denominations in which any
Bearer Securities of such series shall be issuable, if other than the
denomination of $5,000;
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(15) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(16) the currency or currencies of denomination of the Debt
Securities of any series, which may be in Dollars, any Foreign Currency
or any composite currency, including but not limited to the ECU, and,
if any such currency of denomination is a composite currency other than
the ECU, the agency or organization, if any, responsible for overseeing
such composite currency;
(17) the currency or currencies in which payment of the
principal of (and premium, if any) and interest on the Debt Securities
will be made, the currency or currencies, if any, in which payment of
the principal of (and premium, if any) or the interest on Registered
Securities, at the election of each of the Holders thereof, may also be
payable and the periods within which and the terms and conditions upon
which such election is to be made and the Exchange Rate and Exchange
Rate Agent;
(18) if the amount of payments of principal of (and premium,
if any) or interest on the Debt Securities of the series may be
determined with reference to an index based on a currency or currencies
other than that in which the Debt Securities are denominated or
designated to be payable, the manner in which such amounts shall be
determined;
(19) if payments of principal of (and premium, if any) or
interest on the Debt Securities of the series are to be made in a
Foreign Currency other than the currency in which such Debt Securities
are denominated, the manner in which the Exchange Rate with respect to
such payments shall be determined or if the Exchange Rate is to be
determined otherwise than as provided in Section 101;
(20) any Events of Default with respect to Debt Securities of
such series, if not set forth herein;
(21) any other covenant or warranty included for the benefit
of the Debt Securities of the series in addition to (and not
inconsistent with) those set forth herein for the benefit of Debt
Securities of all series, or any other covenant or warranty included
for the benefit of Debt Securities of the series in lieu of any
covenant or warranty set forth herein for the benefit of Debt
Securities of all series, or any provision that any covenant or
warranty set forth herein for the benefit of Debt Securities of all
series shall not be for the benefit of Debt Securities of such series,
or any combination of such covenants, warranties or provisions and
whether the provisions of Section 1005 will not apply such covenants
and warranties;
(22) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through
the deposit of money or Eligible Instruments as provided in Articles
Four and Seventeen;
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(23) the Person or Persons who shall be Security Registrar for
the Debt Securities of such series if other than the Trustee, and the
place or places where the Security Register for such series shall be
maintained and the Person or Persons who will be the initial Paying
Agent or Agents, if other than the Trustee;
(24) whether the Debt Securities of the series are Convertible
Securities and the terms related thereto including the Conversion Price
and the date on which the right to convert expires; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series and the coupons appertaining to
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution and set forth
in such Officers' Certificate or in any such indenture supplemental hereto.
Debt 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 rates of interest may be determined, with different dates on
which such interest may be payable and with different Redemption or Repayment
Dates and may be denominated in different currencies or payable in different
currencies.
If any of the terms of a series of Debt Securities are established by
action taken pursuant to a Board Resolution, 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 setting forth the terms of the series.
SECTION 302. Denominations.
Debt Securities of each series shall be issuable in such form and
denominations as shall be specified in the form of Debt Security for such series
approved or established pursuant to Section 201 or in the Officers' Certificate
delivered pursuant to Section 301. In the absence of any specification with
respect to the Debt Securities of any series, the Registered Securities of such
series, if any, shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, if any, shall be
issuable in the denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
(a) The Debt Securities shall be executed on behalf of the Company by
its Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by its Treasurer or one of its Assistant Treasurers or its
Secretary or one of its Assistant Secretaries under its corporate seal
reproduced thereon. The signature of any of these officers on the Debt
Securities may be manual or facsimile. Coupons shall bear the facsimile
signature of an authorized officer of the Company.
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Debt Securities and coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Debt Securities or coupons of any series or did not hold such offices at the
date of such Debt Securities or coupons.
(b) At any time and from time to time after the execution and delivery
of this Indenture, Debt Securities of any series may be executed by the Company
and delivered to the Trustee for authentication, and, except as otherwise
provided in this Article Three, shall thereupon be authenticated and delivered
by the Trustee upon Company Order, without any further action by the Company;
provided, however, that, in connection with its original issuance, a Bearer
Security may be delivered only outside the United States and, except in the case
of a temporary Global Security, only if the Company or its agent shall have
received the certification required pursuant to Sections 304(b)(iii) and (iv),
unless such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Debt Securities of
any series (and upon request of the Trustee thereafter), the Company shall
deliver to the Trustee (i) the certificates called for under Sections 201 and
301 hereof and (ii) an Opinion of Counsel described in the next sentence.
In authenticating such Debt Securities, and accepting the additional
responsibilities under this Indenture in relation to any Debt Securities, the
Trustee shall be entitled to receive, prior to the initial authentication of
such Debt Securities, and (subject to Section 601) shall be fully protected in
relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and
terms of the Debt Securities of such series and coupons, if any,
pursuant to Sections 201 and 301 and stating that all conditions
precedent provided for in this Indenture relating to the issuance of
such Debt Securities have been complied with; and
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(iv) an Opinion of Counsel stating
(A) that the form of such Debt Securities and
coupons, if any, has been established in or pursuant to a
Board Resolution or by a supplemental indenture as permitted
by Section 201 in conformity with the provisions of this
Indenture;
(B) that the terms of such Debt Securities and
coupons, if any, have been established in or pursuant to a
Board Resolution or by a supplemental indenture as permitted
by Section 301 in conformity with the provisions of this
Indenture; and
(C) that such Debt Securities and coupons, if any,
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 valid
and binding obligations of the Company, enforceable in
accordance with their terms, except that where Debt Securities
of any series are to be exchanged for Capital Securities or
paid from the Securities Fund, the issuance of Capital
Securities will require further action by the Board of
Directors, and subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally and the
application of general principles of equity and except further
as enforcement thereof may be limited by (i) requirements that
a claim with respect to any Debt Securities denominated other
than in Dollars (or a Foreign Currency or currency unit
judgment in respect of such claim) be converted into Dollars
at a rate of exchange prevailing on a date determined pursuant
to applicable law or (ii) governmental authority to limit,
delay or prohibit the making of payments in Foreign Currencies
or currency units or payments outside the United States.
(c) If the Company shall establish pursuant to Section 301 that the
Debt Securities of a series are to be issued in whole or in part in the form of
one or more Global Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver one or more Global Securities in permanent
or temporary form that (i) shall represent and shall be denominated in an
aggregate amount equal to the aggregate principal amount of the Outstanding Debt
Securities of such series to be represented by one or more Global Securities,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary and (iii) shall be delivered by
the Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 303 if the issuance of such Debt
Securities will adversely affect the Trustee's own rights, duties or immunities
under the Debt Securities and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
(e) If all the Debt Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel at the time
of issuance of each Debt Security, but
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such Opinion of Counsel, with appropriate modifications, may instead be
delivered at or prior to the time of the first issuance of Debt Securities of
such series.
(f) Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
(g) No Debt Security or coupon attached thereto shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Debt Security shall be conclusive evidence, and the only
evidence, that such Debt Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. Notwithstanding the
foregoing, if any Debt Security or portion thereof shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debt Security to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Debt Security or portion thereof has never been issued and
sold by the Company, for all purposes of this Indenture such Debt Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
(h) Each Depositary designated pursuant to Section 301 for a Global
Security in registered form 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 and any other applicable statute or regulation.
SECTION 304. Temporary Debt Securities.
(a) Pending the preparation of definitive Debt Securities of any
series, the Company may execute, and upon receipt of documents required by
Sections 301 and 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Debt Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Debt
Securities in lieu of which they are issued in registered form or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Debt Securities may determine, as evidenced by their
signatures on such Debt Securities. In the case of Debt Securities of any series
issuable as Bearer Securities, such temporary Debt Securities may be in global
form, representing all or any part of the Outstanding Debt Securities of such
series.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Debt Securities in global
form, if temporary Debt Securities of any series are issued, the
Company will cause definitive Debt Securities of such series to be
prepared without unreasonable delay. After the preparation of
definitive
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Debt Securities of such series, the related temporary Debt Securities
shall be exchangeable for such definitive Debt Securities upon
surrender of the temporary Debt Securities of such series at the office
or agency of the Company in the Place of Payment for such series,
without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Debt Securities of any series (accompanied, if
applicable, by all unmatured coupons and all matured coupons in default
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount
of definitive Debt Securities of the same series of like tenor and
terms and of authorized denominations; provided, however, that no
Bearer Security shall be delivered in exchange for a Registered
Security; and provided, further, that a Bearer Security shall be
delivered in exchange for a Bearer Security only in compliance with the
conditions set forth in Section 305.
(ii) If Debt Securities of any series are issued in temporary
global form, any such temporary Global Security shall, unless otherwise
provided pursuant to Section 301, be delivered to the Depositary for
the benefit of Euroclear and CEDEL S.A., for credit to the respective
accounts of the beneficial owners of such Debt Securities (or to such
other accounts as they may direct).
(iii) Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms of, any
such temporary Global Security (the "Global Exchange Date"), the
Company shall deliver definitive Debt Securities to the Trustee or the
agent appointed by the Company pursuant to Section 301 to effect the
exchange of the temporary Global Security for definitive Debt
Securities (the "Global Exchange Agent"), in an aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such
temporary Global Security shall be surrendered by the Depositary to the
Global Exchange Agent, to be exchanged, in whole or from time to time
in part, for definitive Debt Securities without charge and the Trustee
or the Global Exchange Agent, if authorized by the Trustee pursuant to
Section 614, shall authenticate and deliver, in exchange for each
portion of such temporary Global Security, an equal aggregate principal
amount of definitive Debt Securities of the same series of authorized
denominations and of like tenor and terms as the portion of such
temporary Global Security to be exchanged. Upon any exchange of a part
of such temporary Global Security for definitive Debt Securities, the
portion of the principal amount and any interest thereon so exchanged
shall be endorsed by the Global Exchange Agent on a schedule to such
temporary Global Security, whereupon the principal amount and interest
payable with respect to such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed. The
definitive Debt Securities to be delivered in exchange for any such
temporary Global Security shall be in bearer form, registered form,
global registered form or global bearer form, or any combination
thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, in the case of the exchange of
the temporary Global Security for definitive Bearer Securities
(including a definitive Global Bearer Security), upon such presentation
by the Depositary, such temporary Global Security shall be accompanied
by a certificate signed by Euroclear as to the portion of such
temporary Global Security held for its account then to be exchanged and
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a certificate signed by CEDEL S.A. as to the portion of such temporary
Global Security held for its account then to be exchanged, each in the
form set forth in Exhibit B to this Indenture, unless such
certificate(s) shall have been provided earlier pursuant to section
304(b)(v) hereof; and provided, further, that definitive Bearer
Securities (including a definitive Global Bearer Security) shall be
delivered in exchange for a portion of a temporary Global Security only
in compliance with the requirements of Section 303.
(iv) The interest of a beneficial owner of Debt Securities of
a series in a temporary Global Security shall be exchanged for
definitive Debt Securities of the same series and of like tenor and
terms following the Global Exchange Date when the account holder
instructs Euroclear or CEDEL S.A., as the case may be, to request such
exchange on such account holder's behalf and, in the case of the
exchange of the temporary Global Security for definitive Bearer
Securities (including a definitive Global Bearer Security), unless such
certificate(s) shall have been provided earlier pursuant to Section
304(b)(v) hereof, the account holder delivers to Euroclear or CEDEL
S.A., as the case may be, a certificate in the form set forth in
Exhibit A-1 and, if applicable, A-2 to this Indenture, dated no earlier
than 15 days prior to the Global Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL
S.A., the Global Exchange Agent, any authenticating agent appointed for
such series of Debt Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary Global
Security, except that a Person receiving definitive Debt Securities
must bear the cost of insurance, postage, transportation and the like
in the event that such Person does not take delivery of such definitive
Debt Securities in person at the offices of Euroclear and CEDEL S.A.
Definitive Debt Securities in bearer form to be delivered in exchange
for any portion of a temporary Global Security shall be delivered only
outside the United States.
(v) Until exchanged in full as hereinabove provided, the
temporary Debt Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Debt
Securities of the same series and of like tenor and terms authenticated
and delivered hereunder, except that interest payable on a temporary
Global Security on an Interest Payment Date shall be payable to
Euroclear and CEDEL S.A. on such Interest Payment Date only if there
has been delivery by Euroclear and CEDEL S.A. to the Global Exchange
Agent of a certificate or certificates in the form set forth in Exhibit
B to this Indenture dated no earlier than the first Interest Payment
Date, for credit without further interest on or after such Interest
Payment Date to the respective accounts of the Persons who are the
beneficial owners of such temporary Global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL S.A., as
the case may be, a certificate in the form set forth in Exhibit A-1
and, if applicable, A-2 to this Indenture dated no earlier than the
first Interest Payment Date. Any interest so received by Euroclear and
CEDEL S.A. and not paid as herein provided prior to the Global Exchange
Date shall be returned to the Global Exchange Agent which, upon
expiration of two years after such Interest Payment Date, shall repay
such interest to the Company in accordance with Section 1003.
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SECTION 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to
be maintained by the Company in accordance with the provisions of this Section
305 and Section 1002, with respect to the Debt Securities of each series which
are Registered Securities, a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Debt Securities of each series which
are Registered Securities, a "Security Registrar" for the purpose of registering
such Debt Securities and transfers and exchanges of such Debt Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
form and denomination, of like tenor and terms and aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such office or
agency. Bearer Securities may not be delivered in exchange for Registered
Securities.
At the option of the Holder, Registered Securities or Bearer Securities
of any series may be issued in exchange for Bearer Securities (except as
otherwise specified as contemplated by Section 301 with respect to a Bearer
Security in global form) of the same series, of any authorized denominations and
of like tenor and terms and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any such office or agency, with all
unmatured coupons and all matured coupons in default thereto appertaining. If
the Holder of a Bearer Security is unable to produce any such unmatured coupon
or coupons or matured coupon or coupons in default, such exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company and the Trustee in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor and terms after the close of business
at such office or agency of (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related date
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for payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date of
payment, as the case may be.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Debt
Securities which the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Debt Securities of a series
notifies the Company that it is unwilling or unable to continue as Depositary
for the Debt Securities of such series or if at any time the Depositary for the
Debt Securities of such series shall no longer be eligible under Section 303(h),
the Company shall appoint a successor Depositary with respect to the Debt
Securities of such series. If a successor Depositary for the Debt Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company's
election pursuant to Section 301(11) shall no longer be effective with respect
to the Debt Securities of such series and the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and delivery of
definitive Debt Securities of such series, will authenticate and deliver, Debt
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Debt 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.
In such event the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive Debt Securities
of such series, will authenticate and deliver, Debt Securities of such series in
definitive form and in an aggregate principal amount equal to the principal
amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Debt Securities, the Depositary for such series of Debt Securities may
surrender a Global Security for such series of Debt Securities in exchange in
whole or in part for Debt Securities of such series of like tenor and terms and
in definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(a) to each Person specified by such Depositary a new Debt
Security or Securities of the same series, of like tenor and terms and
of any authorized denominations as requested by such person in
aggregate principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(b) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between
the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders
thereof.
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In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver Debt
Securities (a) in definitive registered form in authorized denominations, if the
Debt Securities of such series are issuable as Registered Securities, (b) in
definitive bearer form in authorized denominations, with coupons attached, if
the Debt Securities of such series are issuable as Bearer Securities or (c) as
either Registered or Bearer Securities, as shall be specified by the beneficial
owner thereof, if the Debt Securities of such series are issuable in either
form; provided, however, that no definitive Bearer Security shall be delivered
in exchange for a temporary Global Security unless the Company or its agent
shall have received from the person entitled to receive the definitive Bearer
Security a certificate substantially in the form set forth in Exhibit A-1 and,
if applicable, A-2 hereto; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided further that
no definitive Bearer Security will be issued if the Company has reason to know
that any such certificate is false.
Upon the exchange of a Global Security for Debt Securities in
definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Registered Securities to the persons in whose names
such Debt Securities are so registered. The Trustee shall deliver Bearer
Securities issued in exchange for a Global Security pursuant to this Section to
the persons, and in such authorized denominations, as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee; provided, however, that
no definitive Bearer Security shall be delivered in exchange for a temporary
Global Security unless the Company or its agent shall have received from the
person entitled to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A-1 and, if applicable, A-2
hereto; and provided further that delivery of a Bearer Security shall occur only
outside the United States; and provided further that no definitive Bearer
Security will be issued if the Company has reason to know that any such
certificate is false.
All Debt Securities issued upon any registration of transfer or
exchange of Debt Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered upon such registration of transfer
or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debt Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer, registration of transfer or exchange of Debt
Securities, other than exchanges expressly provided in this Indenture to be made
at the Company's own expense or without expense or without charge to the
Holders.
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The Company shall not be required (i) to issue, register the transfer
of or exchange Debt Securities of any particular series to be redeemed or
exchanged for Capital Securities for a period of fifteen days preceding the
first publication of the relevant notice of redemption or, if Registered
Securities are outstanding and there is no publication, the mailing of the
relevant notice of redemption or exchange, or (ii) to register the transfer of
or exchange any Registered Security so selected for redemption or exchange in
whole or in part, except the unredeemed or unexchanged portion of such
Registered Security being redeemed or exchanged in part, or (iii) to exchange
any Bearer Security so selected for redemption or exchange except that such a
Bearer Security may be exchanged for a Registered Security of like tenor and
terms of that series, provided that such Registered Security shall be
simultaneously surrendered for redemption or exchange.
Notwithstanding anything herein to the contrary, the exchange of Bearer
Securities into Registered Securities shall be subject to applicable laws and
regulations in effect at the time of exchange; neither the Company, the Trustee
nor the Security Registrar shall exchange any Bearer Securities into Registered
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws and regulations then in effect and the Company has
delivered to the Trustee a Company Order directing the Trustee not to make such
exchanges thereafter unless and until the Trustee receives a subsequent Company
Order to the contrary. The Company shall deliver copies of such Company Orders
to the Security Registrar.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Debt Securities.
If (i) any mutilated Debt Security or a Bearer Security with a
mutilated coupon appertaining to it is surrendered to a Paying Agent outside the
United States designated by the Company, or, in the case of any Registered
Security, to the Trustee, or (ii) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company and the Trustee that such Debt Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute and
upon its written request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Debt Security or Bearer Security with a mutilated coupon
appertaining to it or to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen) or in lieu of any
such destroyed, lost or stolen Debt Security, a new Debt Security of like tenor
and terms and principal amount, bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupon, if any, appertaining to
such destroyed, lost or stolen Debt Security or to the Debt Security to which
such destroyed, lost or stolen coupon appertains; provided, however, that any
such new Bearer Security will be delivered only in compliance with the
conditions set forth in Section 305.
In case any such mutilated, destroyed, lost or stolen Debt Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debt Security, pay such Debt Security
or coupon; provided, however, that payment of principal of (and premium, if any)
and any interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States; and provided, further, that, with respect to any such coupons, interest
represented thereby (but not
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any additional amounts payable as provided in Section 1006), shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Debt Security or coupons under this
Section, 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 expenses (including the fees and expenses of the Trustee and printing
expenses) connected therewith.
Every new Debt Security of any series, with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Bearer Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Debt Security and coupons, if any, shall
be entitled to all the benefits of this Indenture equally and proportionately
with any and all other Debt Securities of that series and their coupons, if any,
duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Debt Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture. At the option of the Company, payment of interest on any Registered
Security may be made by check in the currency designated for such payment
pursuant to the terms of such Registered Security mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or
by wire transfer to an account in such currency designated by such Person in
writing not later than ten days prior to the date of such payment.
Any interest on any Registered Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of
such series and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money and/or,
to the extent such Debt Securities are denominated and payable in
Dollars only, Eligible Instruments the payments of principal and
interest on which when due (and without reinvestment and providing no
tax liability will be imposed upon the Trustee or the Holder of such
Registered Securities) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the
Trustee, without investment) be equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money and/or Eligible Instruments
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date. Unless the Trustee is acting as the Security
Registrar, promptly after such Special Record Date, the Company shall
furnish the Trustee with a list, or shall make arrangements
satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such
series held by, the Holders appearing on the Security Register at the
close of business on such Special Record Date. In the name and at the
expense of the Company, the Trustee shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2). In case a Bearer Security of any series is surrendered at
the office or agency in a Place of Payment for such series in exchange
for a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening
of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the
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requirements of any securities exchange on which the Registered
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debt Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Subject to the limitations set forth in Section 1002, the Holder of any
coupon appertaining to a Bearer Security shall be entitled to receive the
interest payable on such coupon upon presentation and surrender of such coupon
on or after the Interest Payment Date of such coupon at an office or agency
maintained for such purpose pursuant to Section 1002.
If any Registered Security is exchanged for Capital Securities after
any record date and on or prior to the next succeeding Interest Payment Date
(other than any Debt Security whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall be
paid by the Company on such Interest Payment Date notwithstanding such exchange,
and such interest (whether or not punctually paid or duly provided for) shall be
paid to the Person in whose name that Debt Security is registered at the close
of business on such record date.
If any Bearer Security is exchanged for Capital Securities after any
record date and on or prior to the next succeeding Interest Payment Date (other
than any Debt Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such exchange, and such interest
(whether or not punctually paid or duly provided for) shall be paid by the
Company pursuant to such procedures as may be satisfactory to the Trustee.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Bearer Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
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None of the Company, the Trustee, any Paying Agent or the Security
Registrar 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.
SECTION 309. Cancellation.
Unless otherwise provided with respect to a series of Debt Securities,
all Debt Securities and coupons surrendered for payment, redemption, repayment,
transfer, exchange or credit against any sinking fund payment pursuant to this
Indenture, shall, if surrendered to the Company or any agent of the Company, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Debt Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debt Securities so delivered shall be
promptly cancelled by the Trustee. No Debt Securities shall be authenticated in
lieu of or in exchange for any Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled Debt
Securities and coupons held by the Trustee shall be destroyed and certification
of their destruction delivered to the Company, upon request, unless by a Company
Order the Company shall direct that the cancelled Debt Securities or coupons be
returned to it.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, interest on the Debt Securities of each series shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. Certification by a Person Entitled to Delivery of a Bearer
Security.
Whenever any provision of this Indenture or a Debt Security
contemplates that certification be given by a Person entitled to delivery of a
Bearer Security, such certification shall be provided substantially in the form
of Exhibit A-1 and, if applicable, A-2 hereto, with only such changes as shall
be approved by the Company and consented to by the Trustee whose consent shall
not unreasonably be withheld.
SECTION 312. Judgments.
The Company may provide, pursuant to Section 301, for the Debt
Securities of any series that, to the fullest extent possible under applicable
law and except as may otherwise be specified as contemplated in Section 301, (a)
the obligation, if any, of the Company to pay the principal of (and premium, if
any) and interest on the Debt Securities of any series and any appurtenant
coupons in a Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 301 is of the essence and
agrees that judgments in respect of such Debt Securities shall be given in the
Designated Currency; (b) the obligation of the Company to make payments in the
Designated Currency of the principal of (and premium, if any) and interest on
such Debt Securities and any appurtenant coupons shall, notwithstanding any
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payment in any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in the Designated Currency that the
Holder receiving such payment may, in accordance with normal banking procedures,
purchase with the sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in the case of
Foreign Currency or Dollars or in the international banking community in the
case of a composite currency on the Business Day immediately following the day
on which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect, including the provisions of Article Eighteen hereof (except as to any
surviving rights of registration of transfer or exchange of Debt Securities
herein expressly provided for and rights to receive payments of principal and
interest thereon and any right to receive additional amounts, as provided in
Section 1006) and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
when
(1) either
(A) all Debt Securities theretofore authenticated and
delivered and all coupons appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after such
exchange, surrender of which is not required or has been
waived as provided in Section 305, (ii) Debt Securities and
coupons which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Bearer Securities called for
redemption or surrendered for repayment and maturing after the
relevant Redemption Date or Repayment Date, as appropriate,
surrender of which has been waived as provided in Section 1106
or 1303 and (iv) Debt Securities and coupons for whose payment
money and/or Eligible Instruments have theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee cancelled or for cancellation; or
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(B) all such Debt Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (B)(i), (B)(ii) or
(B)(iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the
purpose money and/or, to the extent such Debt Securities are
denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and
without reinvestment and providing no tax liability will be
imposed upon the Trustee or the Holders of Debt Securities)
will provide money in such amounts as will (together with any
money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay and discharge the entire
indebtedness on such Debt Securities and coupons of such
series for principal (and premium, if any) and interest, and
any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor to the date of
such deposit (in the case of Debt Securities and coupons which
have become due and payable) or to the Stated Maturity or
Redemption Date, if any, and all Repayment Dates (in the case
of Debt Securities repayable at the option of the Holders
thereof); provided, however, that in the event a petition for
relief under the Bankruptcy Reform Act of 1978 or a successor
statute is filed with respect to the Company within 91 days
after the deposit, the obligations of the Company under the
Indenture with respect to the Debt Securities of such series
shall not be deemed terminated or discharged, and in such
event the Trustee shall be required to return the deposited
money and Eligible Instruments to the Company;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Eligible Instruments shall have been deposited with the Trustee pursuant to
Subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money and Eligible Instruments.
(a) Subject to the provisions of the last paragraph of Section 1003,
all money and Eligible Instruments deposited with the Trustee pursuant to
Section 401, 403 or 1701 shall be held in trust and such money and the principal
and interest received on such Eligible Instruments shall be applied by it, in
accordance with the provisions of the Debt Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money or Eligible Instruments have been
deposited with the Trustee.
(b) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any Eligible Instruments or money held by it as provided in
Section 403 or 1501 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such Eligible
Instruments or money were deposited or received.
(c) If this Section 402(c) is specified, as contemplated by Section
301, to be applicable to the Debt Securities of any series, the Trustee shall
deliver to the Company from time to time upon Company Request any Eligible
Instruments held by it as provided in Section 403 or 1501, provided that the
Company in substitution therefor simultaneously delivers to the Trustee, money
or other Eligible Instruments which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, would then be sufficient to satisfy the
Company's payment obligations in respect of the Debt Securities in the manner
contemplated by Section 403 or 1501.
SECTION 403. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Debt Securities of any series, then, notwithstanding Section 401,
(i) the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Debt Securities of any such series and
related coupons; (ii) the provisions of this Indenture as it relates to such
Outstanding Debt Securities and related coupons shall no longer be in effect,
including the provisions of Article Eighteen hereof (except as to the rights of
Holders of Debt Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of (and premium, if any)
and any installment of principal of (and premium, if any) or interest on such
Debt Securities and related coupons on the Stated Maturity of such principal
(and premium, if any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund, repayment or analogous payments
applicable to the Debt Securities of that series on that day on which such
payments are due and payable in accordance with the terms of this Indenture and
of such Debt Securities, the Company's obligations with respect to such Debt
Securities under Sections 304, 305, 306, 1002, 1003 and 1006 and the rights,
powers, trusts, duties and immunities of the Trustee hereunder, including those
under Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
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shall, upon Company Order, execute proper instruments acknowledging satisfaction
and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Debt Securities
of such series and related coupons, with reference to this
Section 403, the Company has deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Section 403 applicable to it) irrevocably,
as trust funds in trust, money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only,
Eligible Instruments the payments of principal and interest on
which when due (and without reinvestment and providing no tax
liability will be imposed upon the Trustee or the Holders of
such Debt Securities) will provide money in such amounts as
will (together with any money irrevocably deposited in trust
with the Trustee, without investment) be sufficient to pay and
discharge (i) the principal of (and premium, if any) and
interest on the Outstanding Debt Securities of that series and
related coupons on the Stated Maturity of such principal or
interest or, if such series may be redeemed by the Company
prior to the Stated Maturity thereof, and the Company shall
have given irrevocable instructions to the Trustee to effect
such redemption, at the date fixed for such redemption
pursuant to Article Eleven, and (ii) any mandatory sinking
fund payments or analogous payments applicable to Debt
Securities of such series on the date on which such payments
are due and payable in accordance with the terms of this
Indenture and of such Debt Securities; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the Debt
Securities of such series;
(2) the Company has paid or caused to be paid all sums payable
with respect to the Outstanding Debt Securities of such series and
related coupons;
(3) such deposit will not result in a breach of, or constitute
a default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Debt Securities of such series shall have occurred and
be continuing on the date of such deposit and no Event of Default under
Section 501(1) or Section 501(2) or event which, with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 501(1) or Section 501(2) shall have occurred and be
continuing on the 91st day after such date; provided, however, that
should that condition fail to be satisfied on or before such 91st day,
the Trustee shall promptly, upon satisfactory receipt of evidence of
such failure, return such deposit to the Company;
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(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (b)
since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities and related coupons of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred;
(6) if the Debt Securities of that series are then listed on
any domestic or foreign securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that such
deposit, defeasance and discharge will not cause such Debt Securities
to be delisted;
(7) such deposit shall have been effected in compliance with
any additional terms, conditions or limitations which may be imposed on
the Company in connection therewith pursuant to Section 301; and
(8) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of the entire indebtedness of all Outstanding Debt Securities
and related coupons have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Debt Securities of such series are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Debt Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Debt Securities of such series which
are deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of Debt
Securities, the obligations of the Company to the Trustee under Section 607, and
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003, shall survive with respect to such series of Debt Securities.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Debt
Securities of any series, 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, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) the entry of a decree or order for relief in respect of
the Company by a court having jurisdiction in the premises in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, and the continuance of any such decree or order unstayed
and in effect for a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case under
the Federal bankruptcy laws, as now or hereafter constituted, 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
(3) any other Event of Default, if any, provided with respect
to Debt Securities of such series specified as contemplated by Section
301.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Debt Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of Outstanding
Debt Securities of such series may declare the principal amount (or, if the Debt
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) of and
all accrued but unpaid interest on all the Debt Securities of such series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by such Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. Upon
payment of such amount, all obligations of the Company in respect of the payment
of principal of the Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Debt Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
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(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all Debt
Securities of such series and any related coupons,
(B) the principal of (and premium, if any, on) any
Debt Securities of such series which have become due otherwise
than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Debt
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest on each
Debt Security and any related coupons at the rate or rates
prescribed therefor in such Debt Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Debt Securities of
such series, other than the non-payment of the principal of such series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Debt Security or any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Debt Security at the Maturity thereof, or
(3) default is made in the deposit of any sinking fund
payment, when and as due by the terms of a Debt Security of such
series, or
(4) default is made in any required designation of funds as
Securities Funds, or
(5) default is made in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of series
of Debt
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Securities other than such series), and such default or breach
continues for a period of 30 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 at least 25% in principal
amount of the Outstanding Debt Securities of such series 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,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Debt Securities and coupons, the amount then due and payable on
such Debt Securities and coupons for principal (and premium, if any) and
interest, sinking fund installment and interest, including the delivery of any
Capital Securities then required to be delivered, and, to the extent that
payment of such interest shall be legally enforceable, interest upon the overdue
principal (and premium, if any) and, upon overdue installments of interest, at
the rate or rates prescribed therefor in such Debt Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts (including the delivery of any
Capital Securities then required to be delivered) forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid and the
delivery of any Capital Securities required to be delivered and not so
delivered, or, in the case of the failure to deliver Capital Securities, money
equal to the principal amount of the Debt Securities for which the Capital
Securities were to be exchanged, and may prosecute such proceeding to judgment
or final decree, and may enforce the same against the Company or any other
obligor upon such Debt Securities and coupons and collect the moneys (or money
equal to the principal amount of any Debt Securities for which Capital
Securities were to be exchanged) adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Debt Securities and coupons, wherever situated.
If an Event of Default with respect to Debt Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Debt Securities of a particular series or any related
coupons or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of such Debt
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall
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have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceedings
or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Debt Securities of such series and any appurtenant
coupons and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, custodian, liquidator, sequestrator or
other similar official in any such 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 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 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims without Possession of Debt
Securities or Coupons.
All rights of action and claims under this Indenture or the Debt
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Debt Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the Debt
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of amounts then due and unpaid to the
holders of Senior Debt, to the extent required by Article Eighteen;
THIRD: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Debt Securities
and any coupons, in respect of which or for the benefit of which such
money has been collected ratably, without preference or priority of any
kind, according to the amounts due and payable on such Debt Securities
and any coupons for principal (and premium, if any) and interest,
respectively. The Holders of each series of Debt Securities denominated
in ECU, any other composite currency or a Foreign Currency and any
matured coupons relating thereto shall be entitled to receive a ratable
portion of the amount determined by the Exchange Rate Agent by
converting the principal amount Outstanding of such series of Debt
Securities and matured but unpaid interest on such series of Debt
Securities in the currency in which such series of Debt Securities is
denominated into Dollars at the Exchange Rate as of the date of
declaration of acceleration of the Maturity of the Debt Securities; and
FOURTH: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Debt Securities of any series or any related coupons
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Debt
Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debt Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference
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over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Exchange Debt Securities for Capital Securities.
Notwithstanding any other provision in this Indenture, the Holder of
any Debt Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Debt Security or payment of such
coupon on the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be), to have the Debt
Securities exchanged for Capital Securities pursuant to Article Fourteen, if
applicable, and to institute suit for the enforcement of any such payment or
exchange, and such right shall not be impaired without the consent of such
Holder, subject, however, to the provisions of Article Eighteen.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Debt
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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SECTION 512. Control by Holders of Debt Securities.
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series 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 the Debt
Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed
would be unjustly prejudicial to the Holders of Debt Securities of such
series not joining in any such direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series may on behalf of the Holders of all
the Debt Securities of any such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security of such series or coupons
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.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Debt
Security or coupon 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, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such
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party litigant, but the provisions of this Section shall not apply to any suit
instituted by the Company or the Trustee, to any suit instituted by any Holder,
or group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Debt Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Debt Security or the payment of any coupons on or
after the respective Stated Maturity or Maturities expressed in such Debt
Security or coupon (or, in the case of redemption or repayment, on or after the
Redemption Date or Repayment Date, as the case may be) or for the enforcement of
the right to exchange any Debt Securities for Capital Securities as provided in
Article Fourteen.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law whenever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided in
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it 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 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.
SECTION 602. Notice of Default.
If a default occurs hereunder with respect to Debt Securities of any
series the Trustee shall transmit by mail to all Holders of Debt Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that, except in the case of a default in the
payment of the principal of (or premium, if any) or interest on any Debt
Security of such series or any related coupons or in the payment of any sinking
fund installment with respect to Debt Securities of such series or in the
exchange of Capital Securities for Debt Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
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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 Debt Securities
of such series. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Debt Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any signature, resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon 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 or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the 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 reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Debt Securities of such series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(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, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney,
other than any such books or records containing information as to the affairs of
the customers of the Company or any of its subsidiaries; provided that the
Trustee may examine such books and records relating to customers to the extent
that such books and records contain information as to any payments made to such
customers in their capacity as Holders of Debt Securities; and
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(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; no Exchange Rate Agent, Capital Exchange Agent, Global Exchange
Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and
the Trustee shall not be responsible for any act or omission by any of them.
SECTION 604. Not Responsible for Recitals or Issuance of Debt
Securities.
The recitals contained herein and in the Debt Securities, except the
Trustee's certificates of authentication, and in any coupons, and the
information in any registration statement, including all attachments thereto,
except information provided by the Trustee therein, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series or any
coupons or any Capital Securities. The Trustee shall not be accountable for the
use or application by the Company of any Debt Securities or the proceeds
thereof. The Trustee shall not be responsible for and makes no representations
to the Company's ability or authority to issue Bearer Securities or the
lawfulness thereof.
SECTION 605. May Hold Debt Securities or Coupons.
The Trustee, any Paying Agent, the Security Registrar or any other
agent of the Company or the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Debt Securities and coupons, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. Neither
the Trustee nor any Paying Agent shall be under any liability for interest on
any money received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder which shall have
been separately agreed to by the Company and the Trustee (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable
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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
(3) to indemnify the Trustee for, and to hold it harmless
against, any claim, loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust or performance of
its duties hereunder, 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.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Debt Securities and any
coupons upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Debt Securities or any coupons. The claims of the
Trustee under this Section shall not be subject to the provisions of Article
Eighteen. The provisions of this Section 607 shall survive the termination of
this Indenture and the resignation or removal of the Trustee.
SECTION 608. 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 with respect to Debt Securities of any series by virtue of being a
trustee under (a) this Indenture with respect to Debt Securities of any
particular series of Debt Securities other than that series and (b) the
Indenture dated as of December 15, 1993.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$5,000,000, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. 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 the Trustee 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.
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SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the Debt
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series, delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with
respect to the Debt Securities of any series after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Debt Securities and shall fail to resign
after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Debt Securities or a decree or order for relief by a
court having jurisdiction in the premises shall have been entered in
respect of the Trustee in an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law; or a
decree or order by a court having jurisdiction in the premises shall
have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official
of the Trustee or of its property or affairs, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation, winding up or
liquidation, or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator or other similar
official of the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action,
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then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to such series or (ii) subject to Section 514, any Holder
who has been a bona fide Holder of a Debt Security of any 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 for the Debt
Securities of such series and the appointment of a successor Trustee. In
addition, the Company may remove the Trustee if the Company shall determine by a
Board Resolution that the services provided by the Trustee may be obtained at a
substantially lower cost to the Company.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Debt Securities, or if a vacancy shall
occur in the office of Trustee for any cause, with respect to the Debt
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Debt
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Debt Securities of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Debt Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Debt Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Debt Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Debt Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Debt Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any Holder
who has been a bona fide Holder of a Debt Security of such series for at least
six months may, subject to Section 514, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Debt
Securities of such series are issuable as Bearer Securities, by publishing
notice of such event once in an Authorized Newspaper in each Place of Payment
located outside the United States. Each notice shall include the name of the
successor Trustee with respect to the Debt Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor Trustee with
respect to all Debt Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
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rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor Trustee
with respect to the Debt Securities of one or more (but not all) series, the
Company, the retiring Trustee upon payment of its charges and each successor
Trustee with respect to the Debt Securities of one or more 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 Debt Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Debt 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 Debt
Securities of that or those 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
Debt Securities of that or those series to which the appointment of such
successor Trustee relates; but, on the 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 Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, 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
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such corporation shall be otherwise qualified and eligible under this Article,
without the executing or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debt Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debt Securities so authenticated with the
same effect as if such successor Trustee had itself authenticated such Debt
Securities. In case any Debt Securities shall not have been authenticated by
such predecessor Trustee, any such successor Trustee may authenticate and
deliver such Debt Securities, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly
or indirectly, secured or unsecured, of the Company (or any other obligor upon
the Debt Securities), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding collection of claims against the Company (or any
such other obligor).
SECTION 614. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) with respect to one or more series of Debt Securities which
shall be authorized on behalf of the Trustee in authenticating Debt Securities
of such series in connection with the issue, delivery, registration of transfer,
exchange, partial redemption or repayment of such Debt Securities. Wherever
reference is made in this Indenture to the authentication of Debt Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication 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 must be
acceptable to the Company and must be a corporation organized and doing business
under the laws of the United States or of any State, having a combined capital
and surplus of at least $1,000,000, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities or the equivalent foreign authority, in the case of an
authenticating agent who is not organized and doing business under the laws of
the United States or of any State thereof or the District of Columbia.
The Trustee hereby initially appoints Norwest Bank Minnesota, N.A. as
its authenticating agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Debt Securities by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of
any authenticating agent with respect to one or more series of Debt Securities
by giving written notice of termination to such authenticating agent
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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 promptly
may appoint a successor authenticating agent. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become vested with all
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.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall
be applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Debt
Securities of each series covered by such appointment may have endorsed thereon,
in lieu of the Trustee's certificate of authentication, an alternate certificate
of authentication in substantially the following form:
This is one of the Debt Securities, of the series designated herein,
described in the within-mentioned Indenture.
____________________________________________
By _________________________________________
As Authenticating Agent for the Trustee
By _________________________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Debt Securities of each series for which it acts as Trustee:
(1) semi-annually, not more than 15 days after the Regular
Record Date in respect of the Debt Securities of such series or on May
15 and November 15 of each year with respect to each series of Debt
Securities for which there are no Regular Record Dates, a
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list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities as of such
Regular Record Date or May 1 or November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered Securities
received by the Trustee in its capacity as Paying Agent or Security Registrar,
if so acting. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished. The Trustee shall preserve
for at least two years the names and addresses of Holders of Bearer Securities
filed with the Trustee by such Holders.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Debt Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Debt Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 after the first issuance of Debt Securities pursuant to this Indenture
and at any other time required by the Trust Indenture Act, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture and such other matters as may be required pursuant to the Trust
Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any Debt
Securities of such series are listed, with the Commission and also with the
Company. The Company will notify the Trustee when any series of Debt Securities
are listed on any stock exchange.
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SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
time and in the manner pursuant to such Act; provided that such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any political
subdivision thereof or any State thereof and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest
(including all additional amounts, if any, payable pursuant to Section
1006) on all the Debt Securities and any related coupons and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, 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
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
met.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or
any conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this
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Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the Debt
Securities and coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the
Company herein and in the Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Debt Securities or coupons (and if
such covenants are to be for the benefit of less than all series of
Debt Securities or coupons, stating that such covenants are expressly
being included solely for the benefit of such series), to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee, or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default (and if such
Events of Default are to be applicable to less than all series of Debt
Securities, stating that such Events of Default are expressly being
included solely to be applicable to such series); or
(4) to add to, change or eliminate any of the provisions of
this Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities of
other authorized denominations or to permit or facilitate the issuance
of Debt Securities in uncertificated form, provided any such action
shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related coupons in any material
respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination (a) shall
become effective only when there is no Debt Security Outstanding of any
series created prior to the execution of such supplemental
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indenture which is entitled to the benefit of such provisions or (b)
shall not apply to any Debt Security Outstanding; or
(6) to establish the form or terms of Debt Securities of any
series as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of
one or more series and to 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,
pursuant to the requirements of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with any provision of this Indenture, provided such other
provisions shall not adversely affect the interests of the Holders of
Debt Securities of any series or any related coupons in any material
respect; or
(9) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided such action shall not
adversely affect the interest of Holders of Debt Securities of any
series or any appurtenant coupons in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debt Securities of all series affected by
such supplemental indenture, acting together as a class, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture of such
Debt Securities of such series and any related coupons; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security or coupon affected thereby,
(1) change the Stated Maturity of the principal or any
installment of principal of, or any installment of interest on, any
Debt Security, or reduce the principal amount thereof or the interest
thereon or any premium payable upon redemption or repayment thereof, or
change any obligation of the Company to pay additional amounts pursuant
to Section 1006 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment, or the coin or currency in which
any Debt Security or the interest thereon or any coupon is payable, or
impair any right to the delivery of Capital Securities in exchange for
Debt Securities provided for in this Indenture or the right to
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institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment, on
or after the Redemption Date or Repayment Date or Capital Exchange
Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Debt Securities of any series, the consent of whose Holders
is required for any such supplemental indenture, or the consent of
whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1604 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1005, 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 Outstanding Debt
Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to
changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1005, or the deletion of this proviso, in
accordance with the requirements of Section 611(b) and 901(7); or
(4) adversely affect the right to repayment, if any, of Debt
Securities of any series at the option of the Holders thereof; or
(5) impair the right of any Holder of Debt Securities of any
series to receive Capital Securities on any Capital Exchange Date for
Debt Securities of such series with a Market Value equal to the
principal amount of such Holder's Debt Securities of such series or in
an amount sufficient to provide proceeds upon sale by the Company in
the Secondary Offering equal to the principal amount of such Holder's
Debt Securities of such series; or
(6) impair the right of any Holder of Convertible Securities
of any series to convert such Debt Securities pursuant to Article
Nineteen;
and provided, further, that no change shall be made in the provisions of Article
Eighteen that will affect adversely the holders of Senior Debt without the
consent of the holders of all Senior Debt Outstanding.
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 Debt Securities, or which
modifies the rights of the Holders of Debt 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 Debt Securities of any other
series.
It shall not be necessary for any Act of Holders of the Debt Securities
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and an Officers' Certificate each stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but 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.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Debt Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Debt Securities to Supplemental Indentures.
Debt Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Debt Securities of any series and any appurtenant coupons so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Debt Securities of such series and any appurtenant coupons.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Debt
Securities and any appurtenant coupons that it will duly and punctually pay the
principal of (and premium, if any) and interest on the Debt Securities and any
appurtenant coupons in accordance with the terms of the Debt Securities, any
appurtenant coupons and this Indenture. Any interest due on Bearer Securities on
or before Maturity, other than additional amounts, if any, payable as provided
in
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Section 1006 in respect of principal of (or premium, if any, on) such a Debt
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature. For all purposes of this Indenture, the exchange of Capital
Securities for Debt Securities of any series pursuant to the Indenture shall
constitute full payment of principal of the Debt Securities of such series being
exchanged on any Capital Exchange Date for Debt Securities of such series,
without prejudice to any Holder's rights pursuant to Section 1413.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Debt Securities an office or agency where Debt Securities (but, except as
otherwise provided below, unless such Place of Payment is located outside the
United States, not Bearer Securities) may be presented or surrendered for
payment, where Debt Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities and this Indenture may be served. If Debt Securities of a
series are issuable as Bearer Securities, the Company will maintain, subject to
any laws or regulations applicable thereto, an office or agency in a Place of
Payment for such series which is located outside the United States where Debt
Securities of such series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Debt Securities of such series pursuant to Section 1006); provided, however,
that if the Debt Securities of such series are listed on The Stock Exchange of
the United Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange
or any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Debt Securities of such series are listed on such
exchange. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices or demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee its agent to receive all presentations, surrenders, notices and demands,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any additional
amounts payable on Bearer Securities of that series pursuant to Section 1006) at
the place specified for the purpose pursuant to Section 301(5).
No payment of principal of, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, payment
of principal of and any premium and interest denominated in Dollars (including
additional amounts payable in respect thereof) on any Bearer Security may be
made at an office or agency of, and designated by, the Company located in the
United States if (but only if) payment of the full amount of such principal,
premium, interest or additional amounts in Dollars at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions and the Trustee receives an Opinion of Counsel that such
payment within the United States is legal. Unless otherwise provided as
contemplated by Section 301 with respect to any series of Debt
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Securities, at the option of the Holder of any Bearer Security or related
coupon, payment may be made by check in the currency designated for such payment
pursuant to the terms of such Bearer Security presented or mailed to an address
outside the United States or by transfer to an account in such currency
maintained by the payee with a bank located outside the United States.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the Debt
Securities of one or more series and any appurtenant coupons (subject to the
preceding paragraph) may be presented or surrendered for any or all such
purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for any series of Debt Securities for such purposes. The Company will
give prompt written notice to the Trustee of any such designation and any change
in the location of any such other office or agency.
SECTION 1003. Money for Debt Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Debt Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Debt Securities
of such series and any appurtenant coupons, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Debt Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Debt Securities of
such series and any appurtenant coupons, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of
Debt Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Debt Securities of such series
and any appurtenant coupons in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Debt Securities of such series or any
appurtenant coupons) in the making of any payment of principal of (and
premium, if any) or interest on the Debt Securities of such series or
any appurtenant coupons; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its
obligations under this Indenture with respect to Debt Securities of any series
or for any other purpose, pay, or by Company Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any principal and interest received on the Eligible Instruments
deposited with the Trustee or any money deposited with the 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 Debt Security of any series or any
appurtenant coupons or any money on deposit with the Trustee or any Paying Agent
representing amounts deducted from the Redemption Price or Repayment Price with
respect to unmatured coupons not presented upon redemption or exercise of the
Holder's option for repayment pursuant to Section 1106 or 1303 and remaining
unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Debt Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money (including the principal and interest received on
Eligible Instruments deposited with the Trustee), and all liability of the
Company as trustee thereof, shall thereupon cease; 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, in an Authorized
Newspaper of general circulation in the Borough of Manhattan, The City of New
York, and each Place of Payment or mailed to each such Holder, or both, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will be repaid to
the Company.
SECTION 1004. Officers' Certificate as to Default.
The Company will deliver to the Trustee, on or before a date not more
than four months after the end of each fiscal year of the Company ending after
the date hereof, an Officers' Certificate, stating whether or not to the best
knowledge of the signers thereof the Company is in default in the performance
and observance of any of the terms, provisions and conditions of this Indenture,
and, if the Company shall be in default, specifying all such defaults and the
nature thereof of which they may have knowledge.
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SECTION 1005. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition applicable to the Debt Securities of any series pursuant
to Section 301 unless such covenant or condition is determined pursuant to
Section 301 not to be subject to this provision if, before the time for such
compliance the Holders of at least a majority in principal amount of all series
of the Debt Securities at the time Outstanding to which such covenant or
condition applies shall, acting together as a class, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, 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 1006. Payment of Additional Amounts.
If the Debt Securities of a series provide for the payment of
additional amounts, the Company will pay to the Holder of any Debt Security of
any series or any coupon appertaining thereto additional amounts upon the terms
and subject to the conditions provided therein. Whenever in this Indenture there
is mentioned, in any context, the payment of the principal of (or premium, if
any) or interest on, or in respect of, any Debt Security of any series or any
related coupon or the net proceeds received on the sale or exchange of any Debt
Security of any series, such mention shall be deemed to include mention of the
payment of additional amounts provided for in the terms of such Debt Securities
and this Section to the extent that, in such context, additional amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if applicable)
in any provisions hereof shall not be construed as excluding additional amounts
in those provisions hereof where such express mention is not made.
If the Debt Securities of a series provide for the payment of
additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Debt Securities (or if the Debt Securities of
that series will not bear interest prior to Maturity, the first day on which a
payment of principal (and premium, if any) is made), and at least 10 days prior
to each date of payment of principal (and premium, if any) or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company will furnish the Trustee and the Company's
principal Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying Agent or Paying
Agents whether such payment of principal of (and premium, if any) or interest on
the Debt Securities of that series shall be made to Holders of Debt Securities
of that series or the related coupons who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Debt Securities of that series. If any such withholding
shall be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of Debt
Securities or coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of such Debt
Securities and the first paragraph of this Section. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with
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actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
ARTICLE ELEVEN
REDEMPTION OF DEBT SECURITIES
SECTION 1101. Applicability of Article.
Debt Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Debt Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Debt Securities shall be
evidenced by a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Debt Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount and the tenor and
terms of the Debt Securities of any series to be redeemed. In the case of any
redemption of Debt Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Debt Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Debt Securities to be Redeemed.
Except as otherwise specified as contemplated by Section 301 for Debt
Securities of any series, if less than all the Debt Securities of any series
with like tenor and terms are to be redeemed, the particular Debt Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Debt Securities of such series with like
tenor and terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Debt Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities or
Bearer Securities (if issued in more than one authorized denomination) of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the Debt
Securities selected for redemption and, in the case of any Debt Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debt Securities shall
relate, in the case of any Debt Security
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redeemed or to be redeemed only in part, to the portion of the principal amount
of such Debt Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Debt Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Debt Securities to
be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debt Security to be redeemed, and
that interest thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Securities with all coupons, if any,
appertaining thereto maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that Bearer Securities may be surrendered for payment only
at such place or places which are outside the United States, except as
otherwise provided in Section 1002,
(7) that the redemption is for a sinking fund, if such is the
case, and
(8) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Debt Securities to be redeemed at the election
of the Company shall be given by the Company, or, at the Company's request, by
the Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money and/or, to the extent the Debt Securities to
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be redeemed are denominated and payable in Dollars only, Eligible Instruments
the payments of principal and interest on which when due (and without
reinvestment and providing no tax liability will be imposed upon the Trustee or
the Holders of the Debt Securities to be redeemed) will provide money on or
prior to the Redemption Date in such amounts as will (together with any money
irrevocably deposited in trust with the Trustee, without investment) be
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Debt Securities
or portions thereof which are to be redeemed on that date; provided, however,
that deposits with respect to Bearer Securities shall be made with a Paying
Agent or Paying Agents located outside the United States except as otherwise
provided in Section 1002, unless otherwise specified as contemplated by Section
301.
SECTION 1106. Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Debt
Securities to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Debt Securities shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities so to be redeemed, except to
the extent provided below, shall be void. Upon surrender of any such Debt
Security for redemption in accordance with said notice, such Debt Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only upon presentation and surrender of coupons for such
interest (at an office or agency located outside the United States except as
otherwise provided in Section 1002), and provided further, that installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Debt Securities, or one
or more Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Bearer Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debt Security.
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SECTION 1107. Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Registered Security or Registered Securities of the same
series and of like tenor and terms, of any authorized denominations as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Debt Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Debt Securities of a series except as otherwise specified
as contemplated by Section 301 for Debt Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Debt Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the term of Debt Securities of any series is herein referred to an
"optional sinking fund payment". If provided for by the terms of Debt Securities
of any series, the amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Debt Securities of any series as provided for by
the terms of Debt Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Debt
Securities.
The Company (1) may deliver Outstanding Debt Securities of a series
(other than any previously called for redemption), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Debt Securities of a series which have
been redeemed either at the election of the Company pursuant to the terms of
such Debt Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Debt Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Debt Securities of such series required to be made pursuant to the terms of such
Debt Securities as provided for by the terms of such series; provided that such
Debt Securities have not been previously so credited. Such Debt Securities shall
be received and credited for such purpose by the Trustee at the Redemption Price
specified in such Debt Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Debt Securities in lieu
of cash payments pursuant to this Section 1202, the principal amount of Debt
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Securities to be redeemed in order to exhaust the aforesaid cash payment shall
be less than $100,000, the Trustee need not call Debt Securities for redemption,
except upon Company Request, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment,
provided, however, that the Trustee or such Paying Agent shall at the request of
the Company from time to time pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the
Company to the Trustee of Debt Securities purchased by the Company having an
unpaid principal amount equal to the cash payment requested to be released to
the Company.
SECTION 1203. Redemption of Debt Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Debt Securities (unless a shorter period shall be satisfactory to the
Trustee), the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash, the portion thereof, if any, which is to be
satisfied by crediting Debt Securities of that series pursuant to Section 1202
and the basis for any such credit and, prior to or concurrently with the
delivery of such Officers' Certificate, will also deliver to the Trustee any
Debt Securities to be so credited and not theretofore delivered to the Trustee.
Not less than 30 days (unless a shorter period shall be satisfactory to the
Trustee) before each such sinking fund payment date the Trustee shall select the
Debt Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such Debt
Securities shall be made upon the terms and in the manner stated in Sections
1105, 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.
Debt Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
their terms and (except as otherwise specified pursuant to Section 301 for Debt
Securities of such series) in accordance with this Article.
SECTION 1302. Repayment of Debt Securities.
Each Debt Security which is subject to repayment in whole or in part at
the option of the Holder thereof on a Repayment Date shall be repaid at the
applicable Repayment Price together with interest accrued to such Repayment Date
as specified pursuant to Section 301.
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SECTION 1303. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Debt Security to be repaid
in whole or in part together with written notice of the exercise of such option
at any office or agency of the Company in a Place of Payment, not less than 30
nor more than 45 days prior to the Repayment Date; provided, however, that
surrender of Bearer Securities together with written notice of exercise of such
option shall be made at an office or agency located outside the United States
except as otherwise provided in Section 1002. Such notice, which shall be
irrevocable, shall specify the principal amount of such Debt Security to be
repaid, which shall be equal to the minimum authorized denomination for such
Debt Security or an integral multiple thereof, and shall identify the Debt
Security to be repaid and, in the case of a partial repayment of the Debt
Security, shall specify the denomination or denominations of the Debt Security
or Debt Securities of the same series to be issued to the Holder for the portion
of the principal of the Debt Security surrendered which is not to be repaid.
If any Bearer Security surrendered for repayment shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Repayment Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Bearer
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Repayment
Price, such Holder shall be entitled to receive the amount so deducted without
interest thereon; provided, however, that interest represented by coupons shall
be payable only at an office or agency located outside the United States except
as otherwise provided in Section 1002.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Registered Security so
surrendered a new Registered Security or Securities of the same series, of any
authorized denomination specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Registered
Security so surrendered which is not to be repaid.
The Company shall execute and the Trustee shall authenticate and
deliver without service charge to the Holder of any Bearer Security so
surrendered a new Registered Security or Securities or new Bearer Security or
Securities (and all appurtenant unmatured coupons and matured coupons in
default) or any combination thereof of the same series of any authorized
denomination or denominations specified in the foregoing notice, in an aggregate
principal amount equal to any portion of the principal of the Debt Security so
surrendered which is not to be paid; provided, however, that the issuance of a
Registered Security therefor shall be subject to applicable laws and
regulations, including provisions of the United States Federal income tax laws
and regulations in effect at the time of the exchange; neither the Company, the
Trustee nor the Security Registrar shall issue Registered Securities for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
issuance the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such issuances
thereafter unless and until the
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Trustee receives a subsequent Company Order to the contrary. The Company shall
deliver copies of such Company Order to the Security Registrar.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Debt Securities shall
relate, in the case of any Debt Security repaid or to be repaid only in part, to
the portion of the principal of such Debt Security which has been or is to be
repaid.
SECTION 1304. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity, at any time prior to any Repayment Date to designate one or more
Remarketing Entities to purchase, at a price equal to the Repayment Price, Debt
Securities of such series from the Holders thereof who give notice and surrender
their Debt Securities in accordance with Section 1303.
SECTION 1305. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Debt Securities so to be repaid having been surrendered as aforesaid, such Debt
Securities shall, unless purchased in accordance with Section 1304, on the
Repayment Date become due and payable at the price therein specified and from
and after the Repayment Date such Debt Securities shall cease to bear interest
and shall be paid on the Repayment Date, and the coupons for such interest
appertaining to Bearer Securities so to be repaid, except to the extent provided
above, shall be void, unless the Company shall default in the payment of such
price in which case the Company shall continue to be obligated for the principal
amount of such Debt Securities and shall be obligated to pay interest on such
principal amount at the rate borne by such Debt Securities from time to time
until payment in full of such principal amount.
ARTICLE FOURTEEN
EXCHANGE OF CAPITAL SECURITIES FOR DEBT SECURITIES
SECTION 1401. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to
Section 301 provides for the exchange of Capital Securities for Debt Securities
of any series at the election of the Company or otherwise, Debt Securities of
such series shall be exchanged for Capital Securities in accordance with their
terms and (except as otherwise specified in such Officers' Certificate or
supplemental indenture) in accordance with this Article.
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SECTION 1402. Exchange of Capital Securities for Debt Securities at
Stated Maturity.
At the Stated Maturity of Debt Securities of any series which may be
exchanged, subject to prepayment prior to such Stated Maturity on the Capital
Exchange Date selected by the Company for Debt Securities of such series, as
described below, early exchange pursuant to Section 1403 or payment in cash
pursuant to Section 502, 1416 or 1417, the Company shall exchange Capital
Securities with a Market Value equal to the principal amount of the Outstanding
Debt Securities of such series for the Debt Securities of such series in whole.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent as to the type of Capital Securities to be exchanged
for the Debt Securities of such series on the Capital Exchange Date for Debt
Securities of such series. Such notice shall include a form of Capital Security
Election Form substantially as set forth in Section 1409, shall make the
statements and contain the information included in Section 1404(a), and shall be
given no less than 90 days prior to the Stated Maturity of such Debt Securities.
Notice of such Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of the Debt Securities of such
series, if larger, shall also be given by the Company in the manner required by
Section 1404(b) not less than three Business Days prior to such Capital Exchange
Date.
The Capital Exchange Date for any prepayment of Debt Securities of each
series may be selected by the Company to be any date between a date 60 days
prior to the Stated Maturity of such Debt Securities and such Stated Maturity,
inclusive, and to be the date of the closing of the Secondary Offering for Debt
Securities of such series. In the event the Company fails to effect such
Secondary Offering, the Capital Exchange Date will be the Stated Maturity of the
Debt Securities of such series. Notice of each such Capital Exchange Date,
together with the amount of Capital Securities being exchanged for each $1,000
principal amount of Debt Securities of such series, or the minimum denomination
of the Debt Securities of such series, if larger, shall also be given by the
Company in the manner required by Section 1404(b) not less than three Business
Days prior to such Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing
of the Secondary Offering will occur on the Capital Exchange Date.
SECTION 1403. Right of Early Exchange of Capital Securities for Debt
Securities.
The Debt Securities of any series to be exchanged may be exchanged at
the election of the Company, as a whole or from time to time in part, prior to
the Stated Maturity thereof for Capital Securities with a Market Value equal to
the principal amount of such Debt Securities on any early Capital Exchange Date,
together with accrued interest to such Capital Exchange Date.
The Company shall give notice in the manner provided in Section 106 to
Holders of the Debt Securities of any series to be exchanged, the Trustee and
the Capital Exchange Agent not less than 90 days nor more than 120 days prior to
any early Capital Exchange Date for Debt
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Securities of such series, which notice shall include a form of Capital Security
Election Form substantially as set forth in Section 1409 and make the statements
and contain the information included in Section 1404(a). Notice of each such
early Capital Exchange Date, together with the amount of Capital Securities
being exchanged for each $1,000 principal amount of Debt Securities of such
series, or the minimum denomination of such series, if larger, shall also be
given by the Company in the manner required by Section 1404(b) not less than
three Business Days prior to such early Capital Exchange Date.
The Company may at its option accelerate any such Capital Exchange Date
within the 60-day period prior to such Capital Exchange Date by giving notice of
such accelerated Capital Exchange Date, together with the amount of Capital
Securities being exchanged for each $1,000 principal amount of Debt Securities
of such series, or the minimum denomination of such series, if larger, in the
manner required by Section 1404(b) not less than three Business Days prior to
such accelerated Capital Exchange Date.
The Company will effect each Secondary Offering such that the closing
of such Secondary Offering will occur on the Capital Exchange Date.
SECTION 1404. Notices of Exchange.
(a) All notices of exchange subject to this paragraph shall state:
(1) the type of Capital Securities to be exchanged for the
Debt Securities of such series on the Capital Exchange Date for Debt
Securities of such series;
(2) the proposed Capital Exchange Date;
(3) that each Holder of Debt Securities of such series being
exchanged will receive on such Capital Exchange Date accrued and unpaid
interest in cash and may elect to receive on such Capital Exchange Date
Capital Securities with a Market Value equal to the principal amount of
the Debt Securities of such series owned by such Holder and that, in
the absence of any such election by the Holder, such Holder will be
deemed to have received on such Capital Exchange Date Capital
Securities having such Market Value and to have elected to have such
Capital Securities sold for such Holder by the Company in the related
Secondary Offering for cash proceeds to such Holder on such Capital
Exchange Date equal to the aggregate principal amount of all Debt
Securities of such series being exchanged owned by such Holder;
(4) that on such Capital Exchange Date the Capital Exchange
Price will become due and payable upon each such Debt Security to be
exchanged and that interest thereon will cease to accrue on and after
said date;
(5) if less than all the Outstanding Debt Securities of any
series are to be exchanged, the identification and principal amount of
the particular Debt Securities to be exchanged;
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(6) that each Holder for whom Capital Securities are being
offered in the Secondary Offering shall be deemed to have appointed the
Company its attorney-in-fact to execute any and all documents and
agreements the Company deems necessary or appropriate to effect such
Secondary Offering;
(7) (A) that the Company will assume, unless advised to the
contrary in writing within 30 days after the date of notice of
exchange, that the Capital Securities are to be offered for the account
of the Holder, that such Holder has not held any position, office or
other material relationship with the Company within three years
preceding the Secondary Offering, that the Holder owns no other Capital
Securities, and that after completion of the Secondary Offering the
Holder will own less than one percent of the class of such Capital
Securities, and (B) that if any of these assumptions is not correct,
the Holder shall promptly so advise the Company;
(8) the Place or Places of Capital Exchange;
(9) that Bearer Securities may be surrendered for payment or
exchange only at a Place or Places of Capital Exchange which are
outside the United States, except as otherwise provided in Section
1002; and
(10) the CUSIP number, if any.
(b) Each notice of exchange subject to this paragraph shall be given in
the manner provided in Section 106 to each Holder of Debt Securities to be
exchanged, and the Company shall forthwith give such notice by telephone to the
Trustee and the Capital Exchange Agent, promptly confirmed in writing.
(c) (1) Except as may otherwise be specified pursuant to Section 301
for Debt Securities of any series, if less than all the Debt Securities of any
series are to be exchanged, the Company shall at least 135 days prior to the
related Capital Exchange Date (unless a shorter period shall be satisfactory to
the Trustee) notify the Trustee of such Capital Exchange Date and of the
principal amount of Debt Securities of such series to be exchanged and the
particular Debt Securities to be exchanged shall be selected not more than 135
days prior to the related Capital Exchange Date by the Trustee, from the
Outstanding Debt Securities of such series not previously exchanged, by such
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for exchange of portions (equal to the minimum authorized
denomination for Debt Securities of such series or any integral multiple
thereof) of the principal amount of Registered or Bearer Securities of such
series of a denomination larger than the minimum authorized denomination for
Debt Securities of such series.
In any case where Debt Securities of such series are registered in the
same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Debt Security of such
series.
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(2) The Trustee shall promptly notify the Company in writing of the
Debt Securities selected for exchange and, in the case of any Debt Securities
selected for partial exchange, the principal amount thereof to be exchanged.
(3) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the exchange of Debt Securities shall
relate, in the case of any Debt Securities exchanged or to be exchanged only in
part, to the portion of the principal amount of such Debt Security which has
been or is to be exchanged.
SECTION 1405. Rights and Duties of Holders of Debt Securities to be
Exchanged for Capital Securities.
(a) Subject to Section 503, and without prejudice to the rights
pursuant to Section 1413 of Holders of Debt Securities of any series to be
exchanged, no Holder of Debt Securities of such series shall be entitled to
receive any cash from the Company on any Capital Exchange Date or at the Stated
Maturity of any Debt Security of such series except from the proceeds of the
sale of such Holder's Capital Securities in the related Secondary Offering and
except as provided herein with respect to fractional Capital Securities, amounts
equal to expenses of the sale in the related Secondary Offering of such Capital
Securities, accrued and unpaid interest and acceleration upon an Event of
Default. In the event that the Company does not effect such Secondary Offering,
such Holder will receive Capital Securities with a Market Value equal to the
principal amount of Debt Securities of such series owned by such Holder which
are subject to such exchange and not cash other than in lieu of any fractional
Capital Securities and for accrued and unpaid interest, without prejudice to
such Holder's rights pursuant to Section 1413.
(b) Each Holder for whom Capital Securities are being offered in the
Secondary Offering shall be deemed to have appointed the Company its
attorney-in-fact to execute any and all documents and agreements the Company
deems necessary or appropriate to effect such Secondary Offering.
(c) Unless advised to the contrary in writing within 30 days following
the date of the notice described in Section 1404(a) by any Holder for whom
Capital Securities are being offered in the Secondary Offering, the Company
shall assume for the purposes of any Secondary Offering that the Capital
Securities are to be offered for the account of such Holder, that such Holder
has not held any position, office or other material relationship with the
Company within three years preceding the Secondary Offering, that such Holder
owns no other Capital Securities, and that after completion of the Secondary
Offering such Holder will own less than one percent of the class of such Capital
Securities.
(d) Each Holder for whom Capital Securities are being offered in the
Secondary Offering agrees to indemnify and hold harmless the Company, any other
Holder, and any underwriter, agent or other similar person from and against any
and all losses, claims, damages and liabilities resulting from or based upon any
untrue statement or alleged untrue statement of any material fact contained in
any notice of exchange, any offering memorandum or selling document or
registration statement relating to the Secondary Offering, any preliminary
prospectus or prospectus contained therein, or any amendment thereof or
supplement thereto, or resulting from or based upon
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the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, which
untrue statement, alleged untrue statement, omission or alleged omission is made
therein (i) in reliance upon and in conformity with any written information
furnished to the Company by or on behalf of any such Holder specifically for use
in connection with the preparation thereof or (ii) because of such Holder's
failure to advise the Company in writing that any of the assumptions described
in Section 1404(a)(7)(A) and Subsection (c) of this Section is incorrect.
(e) In order for any Holder who has duly returned a Capital Security
Election Form to receive Capital Securities on any Capital Exchange Date for any
Debt Security of any series, (1) the Holder of any Registered Security to be
exchanged shall surrender such Debt Security (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder of
any Registered Security or his attorney duly authorized in writing) to the
Capital Exchange Agent on the Capital Exchange Date, and (2) the Holder of any
Bearer Security to be exchanged shall surrender such Debt Security and all
unmatured coupons and all matured coupons in default with the Capital Security
Election Form at a Place of Capital Exchange outside the United States
designated pursuant to Section 1404(a)(8) except as otherwise provided in
Section 1002. If the Holder of a Bearer Security is unable to produce any such
Debt Security or coupons, the surrender of such Debt Security or coupons may be
waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any Capital
Exchange Agent harmless in respect of such Debt Security or coupons. Except as
provided in Section 307, no payment or adjustment shall be made upon any
exchange on account of any interest accrued on any Debt Securities surrendered
for exchange or on account of any dividends or interest on the Capital
Securities issued upon exchange.
(f) Debt Securities of any series to be exchanged shall be deemed to
have been exchanged on the Capital Exchange Date therefor in accordance with the
foregoing provisions, and at such time the rights of the Holders of such Debt
Securities as Holders shall cease (subject to the provisions of Section 307 and
without prejudice to the rights of Holders of Debt Securities of such series
pursuant to Section 1413), and the Person or Persons entitled to receive the
Capital Securities issuable upon such exchange shall be treated for all purposes
as the record holder or holders of such Capital Securities at such time.
SECTION 1406. Election to Exchange.
The election of the Company to exchange Capital Securities for Debt
Securities pursuant to Section 1403 shall be evidenced by a Board Resolution.
SECTION 1407. Deposit of Capital Exchange Price.
On any Capital Exchange Date for Debt Securities of any series which
may be exchanged, the Company shall deposit with the Trustee or with a Capital
Exchange Agent in the Borough of Manhattan, The City of New York (or, if the
Company is acting as Capital Exchange Agent, segregate and hold in trust as
provided in Section 1003) Capital Securities and an amount of money which
together are sufficient to pay the Capital Exchange Price of, and (except if
such
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Capital Exchange Date shall be an Interest Payment Date) accrued interest on,
all the Debt Securities of such series or portions thereof which are to be
exchanged on that date; provided, however, that deposits with respect to Bearer
Securities shall be made with a Capital Exchange Agent or Capital Exchange
Agents located outside the United States except as otherwise provided in Section
1002, unless otherwise specified as contemplated by Section 301.
SECTION 1408. Debt Securities Due on Capital Exchange Date; Debt
Securities Exchanged in Part.
Notice of exchange having been given as aforesaid, the Debt Securities
of any series so to be exchanged shall, on the Capital Exchange Date for such
Debt Securities, become due and payable at the Capital Exchange Price therein
specified, and from and after such date (unless the Company shall default in the
payment of the Capital Exchange Price and accrued interest) Debt Securities of
such series to be exchanged shall cease to bear interest and the coupons for
such interest appertaining to any Bearer Securities to be exchanged, except to
the extent provided below, shall be void. Upon surrender of any Debt Security of
such series for exchange in accordance with said notice, such Debt Security
shall be paid by the Company at the Capital Exchange Price, together with
accrued interest to the Capital Exchange Date; provided, however, that if such
Capital Exchange Date is an Interest Payment Date, the interest payable on such
date shall be paid to the Holder of Debt Securities of such series according to
the terms of the Debt Securities of such series and the provisions of Section
307; and provided further, that exchanges of Bearer Securities shall be made
only and installments of interest on Bearer Securities whose Stated Maturity is
on or prior to the Capital Exchange Date shall be payable only at an office or
agency located outside the United States except as otherwise provided in Section
1002 and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those Bearer Securities and coupons.
If any Bearer Security surrendered for exchange shall not be
accompanied by all unmatured coupons and all matured coupons in default, such
Bearer Security may be paid after deducting from the Capital Exchange Price an
amount equal to the face amount of all missing coupons, or the surrender of such
missing coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Capital Exchange Agent harmless. If thereafter the Holder of such
Bearer Security shall surrender to the Trustee or Capital Exchange Agent any
such missing coupon in respect of which a deduction shall have been made from
the Capital Exchange Price, such Holder shall be entitled to receive the amount
so deducted without interest thereon; provided, however, that interest on Bearer
Securities shall be payable only at an office or agency located outside of the
United States except as otherwise provided in Section 1002.
If any Debt Security of any series called for exchange shall not be so
paid or exchanged upon surrender thereof for exchange, the principal shall,
until paid, bear interest from such Capital Exchange Date at the rate or rates
prescribed therefor in such Debt Security; provided, however, that in the case
of Bearer Securities, any such principal and interest thereon shall be paid at
an office or agency located outside the United States except as otherwise
provided in Section 1002.
Any Registered Security which is to be exchanged only in part shall be
surrendered as provided herein (with, if the Company or the Trustee so requires,
due endorsement by, or a
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written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder or his attorney duly authorized in writing)
and the Company shall execute, the Trustee shall authenticate and there shall be
delivered to the Holder of such Debt Security without service charge a new
Registered Security or Securities of the same series, of any authorized
denomination or denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unexchanged portion of principal of the
Debt Security so surrendered.
Any Bearer Security which is to be exchanged only in part shall be
surrendered as provided herein and the Company shall execute, the Trustee shall
authenticate and there shall be delivered to the Holder of such Debt Security
without service charge a new Registered Security or Securities or new Bearer
Security or Securities (and all appurtenant unmatured coupons and coupons in
default) or any combination thereof of the same series, of any surrendered
denomination or denominations as requested by such Holder in aggregate principal
amount equal to and in exchange for the unexchanged portion of principal of the
Debt Security so surrendered; provided, however, the issuance of a Registered
Security therefor shall be subject to applicable laws and regulations, including
provisions of the United States federal income tax laws and regulations in
effect at the time of the exchange; neither the Company, the Trustee nor the
Security Registrar shall issue Registered Securities in exchange for Bearer
Securities if it has received an Opinion of Counsel that as a result of such
exchanges the Company would suffer adverse consequences under the United States
Federal income tax laws then in effect and the Company has delivered to the
Trustee a Company Order directing the Trustee not to make such exchanges
thereafter unless and until the Company delivers to the Trustee a subsequent
Company Order to the contrary. The Company shall deliver copies of such Company
Orders to the Security Registrar.
SECTION 1409. Form of Capital Security Election Form.
The form of Capital Security Election Form shall be substantially as
follows with such additions, deletions or changes thereto as may be approved by
the Company:
CAPITAL SECURITY ELECTION FORM
To: [Insert Names and Addresses
of Capital Exchange Agents]
The undersigned Holder of [insert title of Debt Security] ("Debt
Securities") of Wells Fargo & Company hereby elects to receive on the Capital
Exchange Date determined pursuant to the Indenture dated as of August 30, 1999,
("Indenture"), between Wells Fargo & Company and The First National Bank of
Chicago, as Trustee, and referred to in the notice of exchange published or
delivered to the undersigned with this Capital Security Election Form, Capital
Securities of Wells Fargo & Company with a Market Value equal to the principal
amount of the Debt Securities being exchanged owned by the undersigned Holder
and, in the case of Bearer Securities, delivered herewith together with all
coupons appertaining thereto. Unless this Capital Security Election Form
together with, in the case of Bearer Securities, such Bearer Securities and
coupons, is received by any Capital Exchange Agent named above at an address
shown above on or prior to ______________________________, the Holder will be
deemed to have elected to participate in the sale of the Holder's Capital
Securities in the Secondary Offering and will receive
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cash on the Capital Exchange Date in an amount equal to the principal amount of
all Debt Securities being exchanged owned by the Holder. All terms used herein
and not otherwise defined herein shall have the meanings specified in the
Indenture.
Dated ______________________
_________________________________
Name of Holder
SECTION 1410. Fractional Capital Securities.
No fractional Capital Securities shall be issued upon exchange for any
Debt Securities. If more than one Debt Security of any series shall be
surrendered for exchange at one time by the same Holder, the amount of all
Capital Securities which shall be issuable upon exchange thereof shall be
computed on the basis of the aggregate principal amount of Debt Securities of
such series so surrendered. In lieu of issuing any fractional Capital Security,
the Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the Market Value of the Capital Security.
SECTION 1411. Company to Obtain Governmental and Regulatory Approvals.
The Company covenants that if any Capital Securities required to be
exchanged for Debt Securities hereunder require registration with or approval of
any governmental authority under any federal or state law, or any national
securities exchange, before such Capital Securities may be issued, the Company
will in good faith and as expeditiously as possible endeavor to cause such
Capital Securities to be duly registered or approved, as the case may be;
provided, however, that nothing in this Section shall be deemed to affect in any
way the obligation of the Company to exchange Capital Securities for Debt
Securities as provided in this Article.
SECTION 1412. Taxes on Exchange.
The Company will pay any and all transfer, stamp or similar taxes that
may be payable in respect of the issue or delivery of Capital Securities in
exchange for Debt Securities pursuant hereto.
SECTION 1413. Covenants as to Capital Securities and Secondary
Offering.
(a) The Company covenants that it will issue, or cause to be issued,
Capital Securities of the type, in the amounts and at the times required by this
Indenture.
(b) The Company covenants that all Capital Securities which may be
issued in exchange for Debt Securities will upon issuance be duly and validly
issued and, if applicable, fully paid and nonassessable.
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(c) The Company unconditionally undertakes to sell Capital Securities
in each Secondary Offering (and to bear all expenses of each Secondary Offering,
including underwriting discounts and commissions) at the times and in the manner
required by this Indenture unless all Holders have duly elected to receive
Capital Securities on the related Capital Exchange Date.
(d) The Company agrees to indemnify and hold harmless in connection
with any Secondary Offering any Holder for the account of whom Capital
Securities are being offered and sold from and against any and all losses,
claims, damages and liabilities resulting from or based upon any untrue
statement or alleged untrue statement of any material fact contained in any
notice of exchange, any offering memorandum or selling document or registration
statement relating to the Secondary Offering, any preliminary prospectus or
prospectus contained therein, or any amendment thereof or supplement thereto, or
resulting from or based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or resulting from the Company's failure to comply with
Section 1411; provided, however, the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement, alleged untrue statement, omission or
alleged omission made therein (i) in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such Holder
specifically for use in connection with the preparation thereof or (ii) because
of such Holder's failure to advise the Company in writing that any of the
assumptions described in Section 1404(a)(7)(A) is incorrect. In connection with
any Secondary Offering, the Company agrees to obtain appropriate indemnification
of any Holder for the account of whom Capital Securities are being offered and
sold in any Secondary Offering from any underwriter, agent or other similar
person.
SECTION 1414. Provision in Case of Consolidation, Merger or Transfer of
Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other corporation (other than a consolidation or merger in
which the Company is the continuing corporation), or in case of any conveyance
or transfer of the properties and assets of the Company substantially as an
entirety, the corporation formed by such consideration or the corporation into
which the Company shall have been merged or the corporation which shall have
acquired such assets of the Company, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Debt Security then Outstanding shall have the right thereafter to receive
securities of such successor on the Capital Exchange Date for such Debt Security
with a Market Value equal to the principal amount of such Debt Security. The
above provisions of this Section shall similarly apply to successive
consolidations, mergers, conveyances or transfers.
SECTION 1415. Trustee Not Responsible.
The Trustee shall not at any time be under any duty or responsibility
to any Holder of Debt Securities of any series to be exchanged to determine the
Market Value of any Capital Securities delivered in exchange for Debt Securities
of such series and may rely on and shall be entitled to receive prior to any
Capital Exchange Date for Debt Securities of such series an Officers'
Certificate of the Company as to the Market Value of the Capital Securities
being exchanged for the Debt Securities of such series and the amount of Capital
Securities being exchanged for each $1,000
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principal amount of Debt Securities of such series or the minimum denomination
of such series, if larger, and that such Capital Securities qualify as Capital
Securities under the definition thereof contained herein. The Trustee shall not
be accountable with respect to the validity or value (or the kind or amount) of
any Capital Securities which may at any time be issued or delivered in exchange
for any Debt Security; and the Trustee does not make any representation with
respect thereto. The Trustee shall not be responsible for any failure of the
Company to issue, transfer or deliver any Capital Securities or Capital Security
certificates or other securities or property upon the surrender of any Debt
Security for the purpose of exchange or to comply with any of the covenants of
the Company contained in this Article.
SECTION 1416. Revocation of Obligation to Exchange Capital Securities
for Debt Securities.
The Company's obligations to exchange Capital Securities for Debt
Securities of any series as provided in Section 1402 is absolute and
unconditional; provided, however, that such obligation may be revoked at the
option of the Company at any time on not less than 60 days' prior notice given
in the manner provided in Section 106 to the Holders of Debt Securities of such
series, the Trustee and the Capital Exchange Agent, if the Company shall
determine that under regulations then in effect of the Company's Primary Federal
Regulator either the Debt Securities are no longer includable as capital or it
is no longer necessary for the Company to be obligated to exchange Capital
Securities for Debt Securities in order for the Debt Securities to maintain the
same capital treatment as they are then receiving under the regulations or if
approval of the Primary Federal Regulator is obtained for such revocation.
In the event such obligation is revoked
(a) the Company will pay the Debt Securities of such series in cash at
100% of the principal amount thereof on the Stated Maturity thereof, and
(b) the Company may, at any time on or after a date selected by the
Company, on not less than 60 days' prior notice given in the manner provided in
Section 106 to the Holders of Debt Securities of such series and the Trustee,
redeem the Debt Securities of such series, in whole or in part, for cash at 100%
of the principal amount thereof, plus accrued interest to the Redemption Date.
SECTION 1417. Optional Securities Funds.
(a) (1) With respect to Debt Securities of any series for
which an Officers' Certificate or supplemental indenture pursuant to
Section 301 provides that the Debt Securities of such series are
exchangeable for Capital Securities, the Company may elect to establish
a fund (referred to herein as the "Optional Securities Funds") to which
funds may at any time be designated by the Company as provided in
Section 1502 as if such Optional Securities Funds were Securities Funds
(as defined in Article Fifteen) to be used to pay the principal of the
Debt Securities of such series.
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(2) Notwithstanding any provisions to the contrary contained
in this Indenture or in the Debt Securities of any series, neither
funds designated as Optional Securities Funds nor any other property
from time to time held as Optional Securities Funds shall be deemed to
be for any purpose property of the Holders or trust funds for the
benefit of the Holders, and the Optional Securities Funds shall not
constitute security for the payment of the Debt Securities.
(b) In lieu of, or in addition to, any exchange of Capital Securities
for Debt Securities of any series which may be made in accordance with the
provisions of Sections 1402 and 1403, the Company may elect to redeem the Debt
Securities of such series in accordance with the provisions of Section 1106 and
the terms of the Debt Securities of each series, in whole or in part, by paying
the principal of such Debt Securities with funds designated as Optional
Securities Funds at a price equal to the percentage of the principal amount
established in the terms of the Debt Securities of such series on the Redemption
Date of the Debt Securities to be so redeemed, and (except if such Redemption
Date shall be an Interest Payment Date) by paying accrued interest on such Debt
Securities. If such Redemption Date is an Interest Payment Date, the interest
payable on such date shall be paid to the Holder of Debt Securities of such
series according to the terms of the Debt Securities of such series and the
provisions of Section 307.
(c) The Company shall give notice of such proposed redemption in the
manner provided in Section 106 to the Holders of the Debt Securities of such
series within the time prescribed for the giving of the initial notice in
Section 1402 or 1403, depending upon the Redemption Date selected by the
Company. Such notice shall state the Redemption Date and the place or places
where the Debt Securities of the series to be paid are to be surrendered for
payment; provided, however, if such redemption is of less than all of the Debt
Securities of such series and is to be made on a Capital Exchange Date specified
in accordance with Section 1402 or 1403, then such notice may be incorporated
into any initial notice of such Capital Exchange Date and provided that no
notice of any redemption may be given unless there are sufficient Optional
Securities Funds to pay the principal amount of the Debt Securities to be
redeemed.
(d) If less than all the Debt Securities of any series are to be so
redeemed, then Sections 1404(c) and 1408 shall apply to the redemption in the
same manner as if such Debt Securities were to be exchanged for Capital
Securities.
(e) Funds designated as Optional Securities Funds shall be released
from such designation under the circumstances described in Section 1503.
ARTICLE FIFTEEN
SECURITIES FUNDS
SECTION 1501. Creation of Securities Funds.
A fund (the "Securities Funds") will be established when specified in
an Officers' Certificate or supplemental indenture pursuant to Section 301 for
the Debt Securities of any series
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pursuant to which funds may be designated by the Company as provided in Section
1502, to be used to pay the principal of the Debt Securities of that series.
Notwithstanding any provision to the contrary contained in this
Indenture or in the Debt Securities of any series, neither funds designated as
Securities Funds nor any other property from time to time held as Securities
Funds shall be deemed to be for any purpose property of the Holders or trust
funds for the benefit of the Holders, and the Securities Funds shall not
constitute security for the payment of the Debt Securities.
SECTION 1502. Designations of Securities Funds.
The Securities Funds will consist of amounts equal to (i) the net
proceeds of the sale of Capital Securities for cash from time to time after the
date of initial issuance of the Debt Securities of any series for which funds
may be designated by the Company as provided in this Section, and (ii) the
market value, as determined by the Company, of Capital Securities sold from time
to time after the date of initial issuance of the Debt Securities of such series
in exchange for other property, less the expenses to effect any such exchanges,
and (iii) other funds which the regulations of the Primary Federal Regulator
then permit for the payment of principal of "mandatory convertible securities
(equity commitment notes)" as defined in such regulations; provided that (x) the
Company has designated such amounts as Securities Funds on its books and records
in the manner required by the Primary Federal Regulator, and (y) there shall be
deducted from the Securities Funds an amount equal to the amount of any funds
used to redeem or repay the Debt Securities of such series for which Securities
Funds are required to be designated or any similar securities.
SECTION 1503. Covenant of the Company to Obtain Securities Funds.
Notwithstanding anything else contained herein, the Company hereby
covenants and agrees that with regard to the Debt Securities of any series which
by its terms requires the designation of Securities Funds (i) by the Interest
Payment Date which occurs on or next preceding the date when one-third of the
period from the date of issuance of the Debt Securities of such series to their
Stated Maturity has elapsed, it will have obtained Securities Funds in an amount
that will equal at least one-third of the original aggregate principal amount of
the Debt Securities of such series (or such lesser amount as the Primary Federal
Regulator may permit from time to time) and will have prepared and delivered to
the Trustee an Officers' Certificate to the foregoing effect, (ii) by the
Interest Payment Date which occurs on or next preceding the date when two-thirds
of the period from the date of issuance of the Debt Securities of such series to
their Stated Maturity has elapsed, it will have obtained Securities Funds in an
amount that will equal at least two-thirds of the original aggregate principal
amount of the Debt Securities of such series (or such lesser amount as the
Primary Federal Regulator may permit from time to time) and will have prepared
and delivered to the Trustee an Officers' Certificate to the foregoing effect,
and (iii) by 60 days prior to the Stated Maturity of the Debt Securities of such
series, it will have obtained Securities Funds in an amount that will equal not
less than the original aggregate principal amount of the Debt Securities of such
series (or such lesser amount as the Primary Federal Regulator may permit from
time to time) and will have prepared and delivered to the Trustee an Officers'
Certificate to the foregoing effect; provided, however, that such covenant and
agreement of the Company shall be cancelled and
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amounts theretofore designated as Securities Funds will be released from such
designation in the event and to the extent that the Company shall determine that
under the regulations of the Company's Primary Federal Regulator either the Debt
Securities are no longer includable as capital or it is no longer necessary for
the Company to be obligated to pay the principal of the Debt Securities out of
Securities Funds in order for the Debt Securities to maintain the same capital
treatment as they are then receiving under such regulations, in the event and to
the extent that approval of the Primary Federal Regulator is obtained for such
cancellation and release or in the event and to the extent that the Company
shall have exchanged or redeemed such Debt Securities pursuant to the terms of
such Debt Securities of such series from a source other than amounts designated
as Securities Funds.
ARTICLE SIXTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 1601. Purposes for Which Meetings May Be Called.
If Debt Securities of a series are issuable in whole or in part as
Bearer Securities, a meeting of Holders of Debt Securities of such series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Debt Securities of such series.
SECTION 1602. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series issuable as Bearer Securities for any purpose specified
in Section 1601, to be held at such time and at such place in the Borough of
Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Debt Securities of any series, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1601, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Debt Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York, or in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
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SECTION 1603. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Debt Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Debt
Securities of such series, or (2) a Person appointed by an instrument in writing
as proxy for a Holder or Holders of one or more Outstanding Debt Securities of
such series by such Holder or Holders. The only Persons who shall be entitled to
be present or to speak at any meeting of Holders of Debt Securities of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 1604. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of a series shall constitute a quorum for a meeting
of Holders of Debt Securities of such series. In the absence of a quorum within
30 minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Debt Securities of such series, be
dissolved. In the absence of a quorum in any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairperson
of the meeting prior to the adjournment of such adjourned meeting. Notice of
this reconvening of any adjourned meeting shall be given as provided in Section
1602(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Debt Securities of
such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of majority in principal amount of the Outstanding Debt Securities of that
series, provided however, that, except as limited by the proviso to Section 902,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
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SECTION 1605. Determination of Voting Rights; Conduct and Adjournment
of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of such series in regard to proof of the holding of
Debt Securities of such series 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 deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Debt Securities shall be proved in the manner specified in
Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, in the case of Bearer Securities, by having the
signature of the person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairperson of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 1602(b), in
which case the Company or the Holders of Debt Securities of the series calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Debt Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Debt Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount (or the
equivalent in ECU, any other composite currency or a Foreign Currency) of Debt
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Debt Security
challenged as not Outstanding and ruled by the chairperson of the meeting not to
be Outstanding. The chairperson of the meeting shall have no right to vote,
except as a Holder of a Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1602 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1606. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Debt Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Debt Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Debt Securities of such series held or represented by them. The
permanent chairperson 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
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secretary of the meeting their verified written reports in triplicate of all
votes cast at the meeting. A record, at least in triplicate, of the proceedings
of each meeting of Holders of Debt Securities of any series shall be 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 given
as provided in Section 1602 and, if applicable, Section 1601. Each copy shall be
signed and verified by the affidavits of the permanent chairperson and secretary
of the meeting and one such copy shall be delivered to the Company, and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SEVENTEEN
DEFEASANCE
SECTION 1701. Termination of Company's Obligations.
If this Section 1701 is specified, as contemplated by Section 301, to
be applicable to any series of Debt Securities and if the Company deposits
irrevocably in trust with the Trustee money and/or, to the extent such Debt
Securities are denominated and payable in Dollars only, Eligible Instruments the
payments of principal and interest on which when due (and without reinvestment
and providing no tax liability will be imposed upon the Trustee or the Holders
of such Debt Securities) will provide money in such amounts as will (together
with any money irrevocably deposited in trust with the Trustee, without
investment) be sufficient to pay the principal of (and premium, if any) and any
installment of principal of (and premium, if any) or interest when due on the
Debt Securities of such series and any coupons appertaining thereto and any
mandatory sinking fund, repayment or analogous payments thereon on the scheduled
due dates therefor at the Stated Maturity thereof, the Company's obligations
under any covenant determined pursuant to Section 301 to be subject to this
Section shall terminate with respect to the Debt Securities of the series for
which such deposit was made; provided, however, that (i) no Event of Default
with respect to the Debt Securities of such series under Section 501(1) or
Section 501(2) or event that with notice or lapse of time or both would
constitute such an Event of Default shall have occurred and be continuing on
such date, (ii) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound, and (iii) such termination shall not
relieve the Company of its obligations under the Debt Securities of such series
and this Indenture to pay when due the principal of (and premium, if any) and
interest and additional amounts on such Debt Securities and any coupons
appertaining thereto if such Debt Securities or coupons are not paid (or payment
is not provided for) when due from the money and Eligible Instruments (and the
proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Eligible
Instruments and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Debt Securities of any series
under any covenant determined pursuant to Section 301 to be subject to this
Section that the Company deliver to the Trustee (i) an Opinion of Counsel to the
effect that: (a) Holders of Debt Securities of such series and any coupons
appertaining thereto will
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not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and termination and (b) such Holders (and future Holders) will
be subject to tax in the same amount, manner and timing as if such deposit and
termination had not occurred, (ii) an Officers' Certificate to the effect that
under the laws in effect on the date such money and/or Eligible Instruments are
deposited with the Trustee, the amount thereof will be sufficient, after payment
of all Federal, state and local taxes in respect thereof payable by the Trustee,
to pay principal (and premium, if any) and interest when due on the Debt
Securities of such series and any coupons appertaining thereto; and (iii) an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the defeasance contemplated
in this Section have been complied with.
It shall be an additional condition to the deposit of cash and/or
Eligible Instruments and the termination of the Company's obligations pursuant
to the provisions of this Section under any covenant determined pursuant to
Section 301 to be subject to this Section, with respect to the Debt Securities
of any series then listed on the New York Stock Exchange, that the Company
deliver an Opinion of Counsel that the Debt Securities of such series will not
be delisted from the New York Stock Exchange as a result of such deposit and
termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Debt Securities
of such series under any covenant determined pursuant to Section 301 to be
subject to this Section.
SECTION 1702. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Eligible Instruments not required for the payment
of the principal of (and premium, if any) and interest on the Debt Securities of
any series and any related coupons for which money or Eligible Instruments have
been deposited pursuant to Section 1701 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Debt Securities for which a deposit has been made pursuant to
Section 1701. After such payment to the Company, the Holders of the Debt
Securities of such series and any related coupons shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
SECTION 1703. Indemnity for Eligible Instruments.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the deposited Eligible
Instruments or the principal or interest received on such Eligible Instruments.
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ARTICLE EIGHTEEN
SUBORDINATION OF DEBT SECURITIES
SECTION 1801. Debt Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything in this Indenture or the
Debt Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Debt Securities of each series and any coupons appurtenant
thereto is subordinate and junior in right of payment to all Senior Debt to the
extent provided herein, and each Holder of Debt Securities of each series and
coupons appurtenant thereto, by such Holder's acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof. Senior Debt shall continue to be Senior Debt and entitled
to the benefits of these subordination provisions irrespective of any amendment,
modification or waiver of any term of the Senior Debt or extension or renewal of
the Senior Debt.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution or other
winding up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of
creditors, or
(d) any other marshalling of the assets of the Company,
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Debt Securities or coupons appurtenant thereto on
account thereof. Any payment or distribution, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan of reorganization or readjustment), which
would otherwise (but for these subordination provisions) be payable or
deliverable in respect of the Debt Securities of any series or coupons
appurtenant thereto shall be paid or delivered directly to the holders of Senior
Debt in accordance with the priorities then existing among such holders until
all Senior Debt (including any interest thereon accruing after the commencement
of any such proceedings) shall have been paid in full. In the event of any such
proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Debt Securities and coupons appurtenant thereto, together
with the holders of any obligations of the Company ranking on a parity with the
Debt
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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 premium, if any) and interest on the Debt Securities and such other
obligations 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 Debt Securities and such other obligations.
In the event that, notwithstanding the foregoing, any payment or
distribution of any character or any security, whether in cash, securities or
other property (other than securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Debt Securities, to the
payment of all Senior Debt at the time outstanding and to any securities issued
in respect thereof under any such plan or reorganization or readjustment), shall
be received by the Trustee or any Holder in contravention of any of the terms
hereof such payment or distribution or security shall be received in trust for
the benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Debt at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment of
all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior
Debt in full. In the event of the failure of the Trustee or any Holder to
endorse or assign any such payment, distribution or security, each holder of
Senior Debt is hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Debt shall be prejudiced in
the right to enforce subordination of the indebtedness evidenced by the Debt
Securities by any act or failure to act on the part of the Company. Nothing
contained herein shall impair, as between the Company and the Holders of Debt
Securities of each series, the obligation of the Company to pay to such Holders
the principal of (and premium, if any) and interest on such Debt Securities and
coupons appurtenant thereto or prevent the Trustee or the Holder from exercising
all rights, powers and remedies otherwise permitted by applicable law or
hereunder upon a default or Event of Default hereunder, all subject to the
rights of the holders of the Senior Debt to receive cash, securities or other
property otherwise payable or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid in full unless the
holders thereof shall have received cash, securities or other property equal to
the amount of such Senior Debt then outstanding. Upon the payment in full of all
Senior Debt, the Holders of Debt Securities of each series and coupons
appurtenant thereto, if any, shall be subrogated to all rights of any holders of
Senior Debt to receive any further payments or distributions applicable to the
Senior Debt until the indebtedness evidenced by the Debt Securities of such
series and coupons appertaining thereto, if any, shall have been paid in full,
and such payments or distributions received by such Holders, by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Debt shall, as between the Company and
its creditors other than the holders of Senior Debt, on the one hand, and such
Holders, on the other hand, be deemed to be a payment by the Company on account
of Senior Debt, and not on account of the Debt Securities of such series.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Debt or consent to the filing of a
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financing statement with respect hereto) as may, in the opinion of counsel
designated by the holders of a majority in principal amount of the Senior Debt
at the time outstanding, be necessary or appropriate to assure the effectiveness
of the subordination effected by these provisions.
The provisions of this Section 1801 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
SECTION 1802. Trustee and Holders of Debt Securities May Rely on
Certificate of Liquidating Agent; Trustee May Require Further Evidence as to
Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior Debt.
Upon any payment or distribution of assets of the Company referred to
in this Article Eighteen, the Trustee and the Holders shall be entitled to rely
upon an order or decree made by any court of competent jurisdiction in which
such dissolution or winding up or liquidation or reorganization or arrangement
proceedings are pending or upon a certificate of the trustee in bankruptcy,
receiver, assignee for the benefit of creditors or other Person making such
payment or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Debt and other 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
Eighteen. In the absence of any such bankruptcy trustee, receiver, assignee or
other Person, the Trustee shall be entitled to rely upon a written notice by a
Person representing himself or herself to be a holder of Senior Debt (or a
trustee or representative on behalf of such holder) as evidence that such Person
is a holder of such Senior Debt (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 Debt to
participate in any payments or distributions pursuant to this Article Eighteen,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such Person,
as to the extent to which such Person is entitled to participate in such payment
or distribution, and as to other facts pertinent to the rights of such Person
under this Article Eighteen, and if such evidence is not furnished, the Trustee
may offer any payment to such Person pending judicial determination as to the
right of such Person to receive payment. The Trustee, however, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt.
SECTION 1803. Payment Permitted If No Default.
Nothing contained in this Article Eighteen or elsewhere in this
Indenture, or in any of the Debt Securities, shall prevent (a) the Company at
any time, except during the pendency of any dissolution, winding up, liquidation
or reorganization proceedings referred to in Section 1801, from making payments
of the principal of (or premium, if any) or interest on the Debt Securities or
(b) the application by the Trustee or any Paying Agent of any moneys deposited
with it hereunder to payments of the principal of or interest on the Debt
Securities, if, at the time of such deposit, the Trustee or such Paying Agent,
as the case may be, did not have the written notice provided for in Section 1804
of any event prohibiting the making of such deposit, or if, at the time of such
deposit (whether or not in trust) by the Company with the Trustee or any Paying
Agent (other than the Company) such payment would not have been prohibited by
the provisions of this Article, and the
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Trustee or any Paying Agent shall not be affected by any notice to the contrary
received by it on or after such date.
SECTION 1804. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Eighteen or elsewhere in this Indenture
contained to the contrary notwithstanding, 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 money to or by the Trustee and shall be entitled
conclusively to assume that no such facts exist and that no event specified in
Section 1801 has happened, until the Trustee shall have received an Officers'
Certificate to that effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or their representatives, of Senior Debt who
shall have been certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to which such
Senior Debt shall be outstanding. The Company shall give prompt written notice
to the Trustee and to the Paying Agent of any facts which would prohibit the
payment of money to or by the Trustee or any Paying Agent.
SECTION 1805. Trustee to Effectuate Subordination.
Each Holder of Debt Securities or coupons by such Holder's acceptance
thereof authorizes and directs the Trustee in such Holder's behalf to take such
action as may be necessary or appropriate to effectuate the subordination as
between such Holder and holders of Senior Debt as provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 1806. Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt which may at the time be held by it, to
the same extent as any other holder of Senior Debt; provided that nothing in
this Article shall deprive the Trustee of any rights as such holder and provided
further that nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 607.
SECTION 1807. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article in addition to or in place of the Trustee, provided, however,
that Sections 1804 and 1806 shall not apply to the Company or any Affiliate of
the Company if the Company or such Affiliate acts as Paying Agent.
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SECTION 1808. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt 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 which any such holder may have or be
otherwise charged with. The holders of Senior Debt 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 Debt, or amend or supplement any instrument pursuant to which any such
Senior Debt 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 Debt including, without limitation, the waiver of default thereunder,
all without notice to or assent from the Holders of the Debt Securities or the
Trustee and without affecting the obligations of the Company, the Trustee or the
Holders of the Debt Securities under this Article.
ARTICLE NINETEEN
CONVERSION OF CONVERTIBLE SECURITIES
SECTION 1901. Applicability of Article.
If an Officers' Certificate or supplemental indenture pursuant to
Section 301 provides that the Debt Securities of a series shall be Convertible
Securities, Debt Securities of such series shall be convertible in accordance
with their terms and (except as otherwise specified in such Officers'
Certificate or supplemental indenture) in accordance with this Article.
SECTION 1902. Right to Convert.
Subject to and upon compliance with the provisions of this Article, the
Holder of any Convertible Security shall have the right, at such Holder's
option, at any time prior to the close of business on the date set forth in the
Officers' Certificate delivered pursuant to Section 301 hereof (or if such
Convertible Security is called for redemption or submitted for repayment, then
in respect of such Convertible Security to and including but not after the close
of business on the Redemption or Repayment Date, as the case may be, unless the
Company shall default in the payment due) to convert the principal amount of any
such Convertible Security, or, in the case of any Convertible Security of a
denomination greater than $1,000, any portion of such principal which is $1,000
or an integral multiple thereof, into that number of fully paid and
nonassessable shares of Common Stock (as such shares shall then be constituted)
obtained by dividing the principal amount of the Convertible Security or portion
thereof surrendered for conversion by the Conversion Price, by surrender of the
Convertible Security so to be converted in whole or in part in the manner
provided in Section 1903. Such conversion shall be effected by the Company.
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SECTION 1903. Exercise of Conversion Privilege; Delivery of Common
Stock on Conversion; No Adjustment for Interest or Dividends.
In order to exercise the conversion privilege, the Holder of any
Convertible Security to be converted in whole or in part shall surrender such
Convertible Security at an office or agency maintained by the Company pursuant
to Section 1002, accompanied by the funds, if any, required by the last
paragraph of this Section, together with written notice of conversion, in the
form provided on the Convertible Securities, that the Holder elects to convert
such Convertible Security or the portion thereof specified in said notice. Such
notice shall also state the name or names (with address) in which the
certificate or certificates for shares of Common Stock which shall be
deliverable on such conversion shall be registered, and shall be accompanied by
transfer taxes, if required pursuant to Section 1908. Each Convertible Security
surrendered for conversion shall, unless the shares deliverable on conversion
are to be registered in the same name as the registration of such Convertible
Security, be duly endorsed by, or accompanied by instruments of transfer in form
satisfactory to the Company duly executed by, the Holder or such Holder's duly
authorized attorney.
As promptly as practicable after the surrender of such Convertible
Security and the receipt of such notice and funds, if any, as aforesaid, the
Company shall deliver at such office or agency to such Holder, or on such
Holder's written order, a certificate or certificates for the number of full
shares deliverable upon the conversion of such Convertible Security or portion
thereof in accordance with the provisions of this Article and a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising
upon such conversion as provided in Section 1904. In case any Convertible
Security of a denomination greater than $1,000 shall be surrendered for partial
conversion and subject to Section 302, the Company shall execute and the Trustee
shall authenticate and deliver to or upon the written order of the Holder of the
Convertible Security so surrendered, without charge to such Holder, a new
Convertible Security or Convertible Securities in authorized denominations in an
aggregate principal amount equal to the unconverted portion of the surrendered
Convertible Security.
Each conversion shall be deemed to have been effected on the date on
which such Convertible Security shall have been surrendered (accompanied by the
funds, if any, required by the last paragraph of this Section) and such notice
shall have been received by the Company, as aforesaid, and the person in whose
name any certificate or certificates for shares of Common Stock shall be
registrable upon such conversion shall be deemed to have become on said date the
holder of record of the shares 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 in whose name the certificates are to be
registered as the record holder thereof for all purposes on the next succeeding
day on which stock transfer books are open, but such conversion shall be at the
Conversion Price in effect on the date upon which such Convertible Security
shall have been surrendered.
Any Convertible Security or portion thereof surrendered for conversion
during the period from the close of business on the Regular Record Date for any
Interest Payment Date to the opening of business on such Interest Payment Date
shall (unless such Convertible Security or portion thereof being converted shall
have been called for redemption or submitted for repayment
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on a date in such period) be accompanied by payment, in legal tender or other
funds acceptable to the Company, of an amount equal to the interest otherwise
payable on such Interest Payment Date on the principal amount being converted;
provided, however, that no such payment need be made if there shall exist at the
time of conversion a default in the payment of interest on the Convertible
Securities. An amount equal to such payment shall be paid by the Company on such
Interest Payment Date to the Holder of such Convertible Security on such Regular
Record Date, provided, however, that if the Company shall default in the payment
of interest on such Interest Payment Date, such amount shall be paid to the
person who made such required payment. Except as provided above in this Section,
no adjustment shall be made for interest accrued on any Convertible Security
converted or for dividends on any shares issued upon the conversion of such
Convertible Security as provided in this Article.
SECTION 1904. Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be delivered upon conversion of Convertible Securities. If more
than one Convertible Security shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be deliverable upon
conversion shall be computed on the basis of the aggregate principal amount of
the Convertible Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
deliverable upon the conversion of any Convertible Security or Convertible
Securities, the Company shall make an adjustment therefor in cash at the current
market value of such fractional share of stock. The market value of a share of
Common Stock shall be the Closing Price on the Business Day immediately
preceding the day on which the Convertible Securities (or specified portions
thereof) are deemed to have been converted.
SECTION 1905. Conversion Price.
The Conversion Price shall be as specified in the form of Convertible
Security hereinabove set forth, subject to adjustment as provided in this
Article.
SECTION 1906. Adjustment to Conversion Price.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall (i) pay a dividend or make a
distribution on the Common Stock in shares of its capital stock
(whether shares of Common Stock or of capital stock of any other
class), (ii) subdivide or reclassify its outstanding Common Stock into
a greater number of securities (including Common Stock), or (iii)
combine or reclassify its outstanding Common Stock into a smaller
number of securities (including Common Stock), the Conversion Price in
effect immediately prior thereto shall be adjusted so that the Holder
of any Convertible Security thereafter surrendered for conversion shall
be entitled to receive the number of shares of capital stock of the
Company which such Holder would have owned or have been entitled to
receive after the happening of any of the events described above had
such Convertible Security been converted immediately prior to the
happening of such event. An adjustment made pursuant to this subsection
(a) shall become effective immediately after the record date in the
case of a dividend and shall become effective immediately after the
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effective date in the case of a subdivision or combination. If, as a
result of an adjustment made pursuant to this subsection (a), the
Holder of any Convertible Security thereafter surrendered for
conversion shall become entitled to receive shares of two or more
classes of capital stock of the Company, the Board of Directors of the
Company (whose determination shall be conclusive and shall be described
in a written statement filed with the Trustee and any conversion agent)
shall determine the allocation of the adjusted Conversion Price between
or among shares of such classes of capital stock.
In the event that at any time, as a result of an adjustment
made pursuant to this subsection (a) of this Section 1906, the Holder
of any Convertible Security thereafter converted shall become entitled
to receive any shares or other securities of the Company other than
shares of Common Stock, thereafter the number of such other shares so
received upon conversion of any Convertible Security shall be subject
to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the shares
of Common Stock contained in this Section 1906, and other provisions of
this Article Nineteen with respect to the shares of Common Stock shall
apply on like terms to any such other shares or other securities.
(b) In case the Company shall fix a record date for the
issuance of rights or warrants to all holders of its Common Stock (or
securities convertible into Common Stock) entitling them (for a period
expiring within 45 days after such record date) to subscribe for or
purchase Common Stock at a price per share (or a conversion price per
share) less than the current market price per share of Common Stock (as
defined in subsection (d) below) at such record date, the Conversion
Price in effect immediately prior thereto shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to such record date by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares which the
aggregate offering price of the total number of shares so offered (or
the aggregate initial conversion price of the convertible securities so
offered) would purchase at such current market price, and of which the
denominator shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common
Stock offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible). Such
adjustment shall be made successively whenever such a record date is
fixed, and shall become effective immediately after such record date.
In determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such
current market price, and in determining the aggregate offering price
of such shares, there shall be taken into account any consideration
received by the Company for such rights or warrants, the value of such
consideration, if other than cash, to be determined by the Board of
Directors of the Company. Common Stock owned by or held for the account
of the Company or any majority owned subsidiary shall not be deemed
outstanding for the purpose of any adjustment required under this
subsection (b).
(c) In case the Company shall fix a record date for making a
distribution to all holders of its Common Stock evidences of its
indebtedness or assets (excluding regular quarterly or other periodic
or recurring cash dividends or
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distributions and cash dividends or distributions paid from retained
earnings of the Company or dividends or distributions referred to in
subsection (a) above) or rights or warrants to subscribe or purchase
(excluding those referred to in subsection (b) above), then in each
such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in
effect immediately prior to such record date by a fraction of which the
numerator shall be the current market price per share (as defined in
subsection (d) below) of the Common Stock on such record date less the
then fair market value (as determined by the Board of Directors of the
Company whose determination shall be conclusive, and described in a
certificate filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed or of such rights or warrants
applicable to one share of Common Stock, and the denominator shall be
the current market price per share (as defined in subsection (d) below)
of the Common Stock. Such adjustment shall be made successively
whenever such a record date is fixed and shall become effective
immediately after such record date. Notwithstanding the foregoing, in
the event that the Company shall distribute any rights or warrants to
acquire capital stock ("Rights") pursuant to this subsection (c), the
distribution of separate certificates representing such Rights
subsequent to their initial distribution (whether or not such
distribution shall have occurred prior to the date of the issuance of
such Convertible Securities) shall be deemed to be the distribution of
such Rights for purposes of this subsection (c); provided that the
Company may, in lieu of making any adjustment pursuant to this
subsection (c) upon a distribution of separate certificates
representing such Rights, make proper provision so that each Holder of
such Convertible Security who converts such Convertible Security (or
any portion thereof) (i) before the record date for such distribution
of separate certificates shall be entitled to receive upon such
conversion shares of Common Stock issued with Rights and (ii) after
such record date and prior to the expiration, redemption or termination
of such Rights shall be entitled to receive upon such conversion, in
addition to the shares of Common Stock issuable upon such conversion,
the same number of such Rights as would a holder of the number of
shares of Common Stock that such Convertible Security so converted
would have entitled the holder thereof to purchase in accordance with
the terms and provisions of and applicable to the Rights if such
Convertible Security were converted immediately prior to the record
date for such distribution. Common Stock owned by or held for the
account of the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required under
this subsection (c).
(d) For the purpose of any computation under subsection (b)
and (c) above, the current market price per share of Common Stock at
any date shall be deemed to be the average of the daily Closing Prices
for the thirty consecutive days (which are not legal holidays as
defined in Section 113) commencing forty-five days (which are not legal
holidays as defined in Section 113) before the day in question. The
Closing Price for any day shall be (i) if the Common Stock is listed or
admitted for trading on any national securities exchange, the last sale
price (regular way), or the average of the closing bid and ask prices
if no sale occurred, of Common Stock on the principal securities
exchange on which the Common Stock is listed, or, if not listed or
admitted to trading on any national securities exchange, on the
National Market System of the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ"), (ii) if not
listed or quoted as described in (i), the mean between the closing high
bid and low asked quotations
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of Common Stock reported by NASDAQ, or any similar system or automated
dissemination of quotations of securities prices then in common use, if
so quoted, or (iii) if not quoted as described in clause (ii), the mean
between the high bid and low asked quotations for Common Stock as
reported by the National Quotation Bureau Incorporated if at least two
securities dealers have inserted both bid and asked quotations for
Common Stock on at least 5 of the 10 preceding days. If none of the
conditions set forth above is met, the Closing Price of Common Stock on
any day or the average of such Closing Prices for any period shall be
the fair market value of Common Stock as determined by a member firm of
the New York Stock Exchange, Inc. selected by the Company.
(e)(i) Nothing contained herein shall be construed to require
an adjustment in the Conversion Price as a result of the issuance of
Common Stock pursuant to, or the granting or exercise of any rights
under, the Wells Fargo & Company Dividend Reinvestment and Optional
Cash Payment Plan.
(ii) In addition, 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, however, that any
adjustments which by reason of this subsection (e)(ii) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment, further provided, however, that any adjustments
which by reason of this subsection (e)(ii) are not otherwise required
to be made shall be made no later than 3 years after the date on which
occurs an event that requires an adjustment to be made or carried
forward.
(iii) All calculations under this Article Nineteen shall be
made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be. Anything in this Section 1906 to the contrary
notwithstanding, the Company shall be entitled to make such reductions
in the Conversion Price, in addition to those required by this Section
1906, as it in its discretion shall determine to be advisable in order
that any stock dividends, subdivision of shares, distribution of rights
to purchase stock or securities, or distribution of securities
convertible into or exchangeable for stock hereafter made by the
Company to its shareholders shall not be taxable.
(f) Whenever the Conversion Price is adjusted, as herein
provided, the Company shall promptly file with the Trustee and any
conversion agent other than the Trustee an Officers' Certificate
setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the Conversion Price setting forth the
adjusted Conversion Price and the date on which such adjustment becomes
effective and shall mail such notice of such adjustment of the
Conversion Price to the Holder of each Convertible Security at such
Holder's last address appearing on the Security Register provided for
in Section 305 of this Indenture.
(g) In any case in which this Section 1906 provides that an
adjustment shall become effective immediately after a record date for
an event, the Company may defer until the occurrence of such event (i)
delivering to the Holder of any Convertible Security
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converted after such record date and before the occurrence of such
event the additional shares of Common Stock deliverable upon such
conversion by reason of the adjustment required by such event over and
above the Common Stock deliverable upon such conversion before giving
effect to such adjustment and (ii) paying to such Holder any amount in
cash in lieu of any fraction pursuant to Section 1904, provided,
however, that the Company shall deliver to such Holder a due bill or
other appropriate instrument evidencing such Holder's rights to receive
such additional shares, and such cash, upon the occurrence of the event
requiring such adjustment. If such event does not occur, no adjustments
shall be made pursuant to this Section 1906.
SECTION 1907. Effect of Reclassification, Consolidation, Merger or
Sale.
If any of the following events occur, namely (i) any reclassification
or change of outstanding shares of Common Stock deliverable upon conversion of
the Convertible 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, but including any change in the shares of Common
Stock into two or more classes or series of securities), (ii) any consolidation
or merger to which the Company is a party (other than a consolidation or merger
in which the Company is the continuing corporation and which does not result in
any reclassification of, or change (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) in, outstanding shares of its Common Stock) or
(iii) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation; then the Company, or
such successor or purchasing corporation, as the case may be, shall execute with
the Trustee a supplemental indenture (which shall conform to the Trust Indenture
Act as in force at the date of execution of such supplemental indenture and
comply with the provisions of Article Nine) providing that each Convertible
Security shall be convertible into the kind and amount of shares of stock and
other securities or property, including cash, receivable upon such
reclassification, change, consolidation, merger, sale or conveyance by a holder
of a number of shares of Common Stock deliverable upon conversion of such
Convertible Securities immediately prior to such reclassification, change,
consolidation, merger, 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. The Company shall
cause notice of the execution of such supplemental indenture to be mailed to
each holder of Convertible Securities, at his address appearing on the Security
Register provided for in Section 305 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, consolidations, mergers and sales.
SECTION 1908. Taxes on Shares Issued.
The delivery of stock certificates on conversions of Convertible
Securities shall be made without charge to the Holder converting a Convertible
Security for any tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the delivery of stock registered in any name other than of
the Holder of any Convertible Security converted, and the Company shall not be
required to deliver any such stock certificate unless and until the person or
persons requesting the delivery thereof shall
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have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 1909. Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Convertible Securities will upon delivery be fully
paid and nonassessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be provided
for the purpose of conversion of Convertible Securities hereunder require
registration with or approval of any governmental authority under any Federal or
state law before such shares may be validly delivered upon conversion, the
Company will in good faith and as expeditiously as possible endeavor to secure
such registration or approval, as the case may be.
The Company further covenants that it will, if permitted by the rules
of the New York Stock Exchange, list and keep listed for so long as the Common
Stock shall be so listed on such exchange, upon official notice of issuance, all
Common Stock deliverable upon conversion of the Convertible Securities.
SECTION 1910. Trustee Not Responsible.
Neither the Trustee nor any authenticating agent nor any conversion
agent shall at any time be under any duty or responsibility to any Holder of
Convertible Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, 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 authenticating agent nor any conversion agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any shares of Common Stock, or of any securities or property, which
may at any time be delivered upon the conversion of any Convertible Security,
and neither the Trustee nor any authenticating agent nor any conversion agent
makes any representation with respect thereto. Subject to the provisions of
Section 601, neither the Trustee nor any authenticating agent nor any conversion
agent shall be responsible for any failure of the Company to deliver any shares
of Common Stock or stock certificates or other securities or property or cash
upon the surrender of any Convertible Security for the purpose of conversion or
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
SECTION 1911. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of its
current or retained earnings); or
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(b) the Company shall authorize the granting to the holders of
the Common Stock of rights or warrants to subscribe for or purchase any
share of any class or any other rights or warrants; or
(c) of any reclassification or change of the Common Stock
(other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or
from no par value to par value) or of any consolidation or merger to
which the Company is a party and for which approval of any stockholders
of the Corporation is required or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
the Company shall cause to be filed with the Trustee and the Company shall cause
to be mailed to each holder of Convertible Securities at his address appearing
on the Security Register, provided for in Section 305 of this Indenture, as
promptly as possible but in any event no less than fifteen days prior to the
applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as of which the holders
of Common Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to
exchange their Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up or any adjustment in the Conversion Price required by
this Article Nineteen.
SECTION 1912. Covenant to Reserve Shares.
The Company covenants that it will at all times reserve and keep
available, free from pre-emptive rights, out of its authorized but unissued
Common Stock, such number of shares of Common Stock as shall then be deliverable
upon the conversion of all outstanding Convertible Securities.
102
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WELLS FARGO & COMPANY
By /s/ Paul D. Ardleigh
-----------------------------------
Its Senior Vice President
[CORPORATE SEAL]
Attest:
/s/ Margaret L. Halfman
- ---------------------------------
Assistant Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Faye Wright
-----------------------------------
Its Vice President
[CORPORATE SEAL]
Attest:
/s/ Jeffrey L. Kinney
- ---------------------------------
103
<PAGE>
STATE OF CALIFORNIA )
)SS.
COUNTY OF SAN FRANCISCO)
On the 27th day of August, 1999 before me personally came Paul D.
Ardleigh, to me known, who, being duly sworn, did depose and say that he resides
at San Francisco, California; that he is Sr. Vice President of Wells Fargo &
Company, a corporation described in and which executed the above instrument;
that he knows the seal of said corporation; that it was so affixed pursuant to
the authority of the Board of Directors of said corporation; and that he signed
his name thereto pursuant to like authority.
/s/ Karen A. Heaney
---------------------------
Notary Public
104
<PAGE>
STATE OF ILLINOIS)
)SS.
COUNTY OF COOK )
On the 25th day of August, 1999, before me personally came Faye Wright, to me
known, who, being duly sworn, did depose and say that she resides at Chicago,
Illinois; that she is Vice President of The First National Bank Of Chicago, a
national banking association described in and which executed the above
instrument; that she knows the seal of said corporation; that it was so affixed
pursuant to the authority of the Board of Directors of said corporation; and
that she signed her name thereto pursuant to like authority.
/s/ Darlene A. Coulson
---------------------------
Notary Public
105
<PAGE>
EXHIBIT A-1
[Form of Certificate of Beneficial Ownership by a
Non-United States Person or by Certain Other Persons]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of August 30, 1999
(the "Indenture") between Wells Fargo & Company and The First National Bank Of
Chicago, as trustee (the "Trustee"), covering the above-captioned Debt
Securities. This is to certify that as of the date hereof, __________ principal
amount of Debt Securities credited to you for our account (i) is owned by
persons that are not United States Persons, as defined below; (ii) is owned by
United States Persons that are (a) foreign branches of United States financial
institutions (as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
("financial institutions") purchasing for their own account or for resale, or
(b) United States Persons who acquired the Debt Securities through foreign
branches of United States financial institutions and who hold the Debt
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such United States financial institution
encloses herewith a certificate in the form of Exhibit A-2 to the Indenture); or
(iii) is owned by United States or foreign financial institutions for purposes
of resale during the restricted period (as defined in U.S. Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), which United States or foreign financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) certify that they have not acquired the Debt Securities for
purposes of resale directly or indirectly to a United States Person or to a
person within the United States or its possessions.
[Insert if certificate does not relate to an interest payment--We
undertake to advise you by tested telex followed by written confirmation if the
above statement as to beneficial ownership is not correct on the date of
delivery of the above-captioned Debt Securities in bearer form as to all of such
Debt Securities with respect to such of said Debt Securities as then appear in
your books as being held for our account.] We understand that this certificate
is required in connection with United States tax laws. We irrevocably authorize
you to produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate. "United States Person" shall mean a citizen or resident of the
United States of America (including the District of Columbia), a corporation,
partnership or other entity created or organized in or under the laws of the
United States or any political subdivision thereof or an estate or trust that is
subject to United States Federal income taxation regardless of the source of its
income.
[This certificate excepts and does not relate to ______ principal
amount of Debt Securities credited to you for our account and to which we are
not now able to make the certification set forth above. We understand that
definitive Debt Securities cannot be delivered and interest cannot be paid until
we are able to so certify with respect to such principal amount of Debt
Securities.]*
<PAGE>
Dated: ________________________________
[To be dated on or after ______________
(the date determined as provided in the
Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
____________________________________
(Authorized Signatory)
Name:_______________________________
Title:______________________________
* Delete if appropriate
<PAGE>
EXHIBIT A-2
[Form of Certificate of Status as a
Foreign Branch of a United States Financial Institution]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of
Debt Securities to be delivered]
Reference is hereby made to the Indenture dated as of August 30, 1999
(the "Indenture"), between Wells Fargo & Company and The First National Bank Of
Chicago, as trustee, relating to the offering of the above-captioned Debt
Securities (the "Debt Securities"). Unless herein defined, terms used herein
have the same meaning as given to them in the Indenture.
The undersigned represents that it is a branch located outside the
United States of a United States securities clearing organization, bank or other
financial institution (as defined in U.S. Treasury Regulation Section
1.165-12(c)(1)(v)) that holds customers' securities in the ordinary course of
its trade or business and agrees, and authorizes you to advise the issuer or the
issuer's agent, that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder and is not purchasing for resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions. We undertake to advise you by tested telex followed by written
confirmation if the statement in the immediately preceding sentence is not
correct on the date of delivery of the above-captioned Debt Securities in bearer
form.
We understand that this certificate is required in connection with the
United States tax laws. We irrevocably authorize you to produce this certificate
or a copy hereof to any interested party in any administrative or legal
proceedings with respect to the matters covered by this certificate.
Dated: _________________________________
[To be dated on or after _________________
(the date determined as provided in the
Indenture)]
[Name of Person Entitled to Receive
Bearer Security]
____________________________________
(Authorized Signatory)
Name:_______________________________
Title:______________________________
<PAGE>
EXHIBIT B
[Form of Certificate to be Given by Euroclear and Cedel S.A.
in Connection with the Exchange of All or a Portion of a
Temporary Global Security or to Obtain
Interest Prior to Exchange]
Certificate
WELLS FARGO & COMPANY
[Insert title or sufficient description of Debt Securities
to be delivered]
We refer to that portion, ___________, of the Global Security
representing the above-captioned issue [which is herewith submitted to be
exchanged for definitive Debt Securities]* [for which we are seeking to obtain
payment of interest]* (the "Submitted Portion"). This is to certify, pursuant to
the Indenture dated as of August 30, 1999 (the "Indenture") between Wells Fargo
& Company and The First National Bank of Chicago, as trustee (the "Trustee"),
that we have received in writing, by tested telex or by electronic transmission
from member organizations with respect to each of the persons appearing in our
records as being entitled to a beneficial interest in the Submitted Portion a
Certificate of Beneficial Ownership by a Non-United States Person or by Certain
Other Persons [and, in some cases, a Certificate of Status as a Foreign Branch
of a United States Financial Institution, authorizing us to inform the issuer or
the issuer's agent that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986 and the
regulations thereunder]* substantially in the form of Exhibit A-1 [and A-2]* to
the Indenture.
We hereby request that you deliver to the office of
________________________ in _________________ definitive Bearer Securities in
the denominations on the attached Schedule A.
We further certify that as of the date hereof we have not received any
notification from any of the persons giving such certificates to the effect that
the statements made by them with respect to any part of the Submitted Portion
are no longer true and cannot be relied on as of the date hereof.
Dated: _________
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
BRUSSELS OFFICE, as Operator of the Euroclear System]
[CEDEL S.A.]
By:__________________________________________________
* Delete if inappropriate
<PAGE>
EXHIBIT 4.2
[Series A MTNs]
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
WELLS FARGO & COMPANY
FORM OF
MEDIUM-TERM FIXED RATE NOTE, SERIES A
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
[ ] Check this box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the 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 requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % INTEREST RATE PER ANNUM:
STATED MATURITY DATE: INTEREST PAYMENT DATES: REGULAR RECORD DATES:
OPTIONAL REDEMPTION: INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
INITIAL REDEMPTION DATE: SINKING FUND: OPTION TO ELECT REPAYMENT:
OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS: DEPOSITARY (Only applicable
[ ] $1,000 if this Security is a Global Security):
[ ] Other
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SPECIFIED CURRENCY:
OTHER/ADDITIONAL TERMS: ADDENDUM ATTACHED:
</TABLE>
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _______________________ Dollars ($______________)
on the Stated Maturity Date shown above (except to the extent redeemed or repaid
prior to such date) and to pay interest, if any, on the principal amount hereof
at the Interest Rate shown above (computed on the basis of a 360-day year of
twelve 30-day months), semi-annually on each Interest Payment Date set forth
above from and after the date of this Security and at Maturity until payment of
the principal amount hereof has been made or duly provided for. Unless this
Security is a Security which has been issued upon transfer of, in exchange for,
or in replacement of, a Predecessor Security, interest on this Security shall
accrue from the Original Issue Date indicated above. If this Security has been
issued upon transfer of, in exchange for, or in replacement of, a Predecessor
Security, interest on this Security shall accrue from the last Interest Payment
Date to which interest was paid on such Predecessor Security or, if no interest
was paid on such Predecessor Security, from the Original Issue Date indicated
above. The first payment of interest on a Security originally issued and dated
between a Regular Record Date specified above and an Interest Payment Date will
be due and payable on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such next succeeding Regular
Record Date. Subject to certain exceptions provided in the Indenture referred to
herein below, the interest so payable on any Interest Payment Date will be paid
to the Person in whose name this Security is registered at the close of business
on the Regular Record Date (whether or not a Business Day) next preceding such
Interest Payment Date, and interest payable upon Maturity will be paid to the
person to whom principal is payable.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on this Security is
payable by the Company in the Specified Currency specified above.
Any interest not punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner
2
<PAGE>
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly
provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in New York City or Minneapolis, Minnesota. The
Company has initially appointed Norwest Bank Minnesota, N.A. as the Paying Agent
at its corporate trust offices at Minneapolis, Minnesota.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security will be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) will be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series having the same
Interest Payment Date, by wire transfer of immediately available funds to such
account as may have been designated by such Holder. Any such designation for
wire transfer purposes shall be made by filing the appropriate information with
the Paying Agent at its corporate trust office not later than 10 calendar days
prior to the applicable Interest Payment Date and, unless revoked by written
notice to the Paying Agent received by the Paying Agent on or prior to the
Regular Record Date immediately preceding the applicable Interest Payment Date,
shall remain in effect with respect to any further payments with respect to this
Security payable to such Holder. Payment of principal of and interest, if any,
on this Security at Maturity will be made against presentation of this Security
at the office or agency of the Company maintained for that purpose in New York
City or Minneapolis, Minnesota.
The Company will pay any administrative costs imposed by banks on
payors in making payments on this Security in immediately available funds and
the Holder of this Security will pay any administrative costs imposed by banks
on payees in connection with such payments. Any tax, assessment or governmental
charge imposed upon payments on this Security will be borne by the Holder of
this Security.
Any payment on this Security due on any day which is not a Business Day
need not be made on such day, but may be made on the next succeeding Business
Day with the same force and effect as if made on the due date and no additional
interest shall accrue on the amount so payable for the period from and after
such date. For purposes of this Security, "Business Day" means any day other
than a Saturday, Sunday or a legal holiday or a day on which banking
institutions are authorized or required by law or regulation to close in New
York City or Minneapolis, Minnesota.
3
<PAGE>
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature or its duly
authorized agent referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
WELLS FARGO & COMPANY
By:
Its:____________________________
[SEAL]
Attest:
Its:____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the
series designated therein referred to
in the within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By:__________________________________
Authorized Signature
OR
NORWEST BANK MINNESOTA, N.A.,
as Authenticating Agent for the Trustee
By:__________________________________
Authorized Signature
5
<PAGE>
[Reverse of Note]
WELLS FARGO & COMPANY
MEDIUM-TERM FIXED RATE NOTE, SERIES A
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of July 21, 1999, as amended or supplemented
from time to time (herein called the "Indenture"), between the Company and
Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto, reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series of the Securities designated as Medium-Term Notes, Series A, of
the Company, which series is limited to an aggregate principal amount of
$7,150,000,000 or the equivalent thereof in one or more foreign or composite
currencies minus the aggregate principal amount of the Company's Subordinated
Medium-Term Notes, Series B which may be issued from time to time. The
Securities of this series may mature at different times, bear interest, if any,
at different rates, be redeemable at different times or not at all, be repayable
at the option of the Holder at different times or not at all, be issued at an
original issue discount and be denominated in different currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Modification and Waivers; Obligation of the Company Absolute
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of
6
<PAGE>
the Holders of the Securities of each series to be affected under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of all
series to be affected, acting together as a class. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Securities of all series at the time Outstanding affected by certain provisions
of the Indenture, acting together as a class, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with those
provisions of the Indenture. Certain past defaults under the Indenture and their
consequences may be waived under the Indenture by the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
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
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except that in the event the Company deposits money or Eligible
Instruments as provided in Section 401 or 403 of the Indenture, such payments
will be made only from proceeds of such money or Eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security shall not be less
than the minimum authorized denomination hereof) on or after the date designated
as the Initial Redemption Date on the face hereof at 100% of the unpaid
principal amount hereof or the portion thereof redeemed multiplied by a
percentage (the "Redemption Percentage"), together with accrued interest, if
any, to the Redemption Date. The Redemption Percentage shall initially be equal
to the Initial Redemption Percentage specified on the face hereof and shall
decline at each anniversary of the Initial Redemption Date by the amount of the
Annual Redemption Percentage Reduction specified on the face hereof, until the
Redemption Percentage is equal to 100%. The Company may exercise such option by
causing the Trustee to mail a notice of such redemption at least 30 but not more
than 60 days prior to the applicable Redemption Date to each Holder of the
Securities of this series to be redeemed. In the event of redemption of this
Security in part only, the Company shall issue a new Security or
7
<PAGE>
Securities for the unredeemed portion hereof in the name of the Holder hereof
upon the cancellation hereof. If less than all of the Securities of this series
with like tenor and terms are to be redeemed, the Securities to be redeemed
shall be selected by the Trustee by such method as the Trustee shall deem fair
and appropriate.
Sinking Fund
Unless otherwise specified on the face hereof, this Security will not
be entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable
prior to the Stated Maturity Date at the option of the Holder, in whole or in
part and in increments of $1,000 (provided that any remaining principal amount
of this Security surrendered for partial repayment shall not be less than the
minimum authorized denomination hereof), on or after the date designated as an
Optional Repayment Date on the face hereof at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the Repayment Date. In order for this
Security to be repaid, the Company must receive at the applicable address of the
Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Security, at
least 30 but not more than 45 days prior to an Optional Repayment Date, either
(i) this Security, with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby, and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed, not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter (and this
Security and form duly completed are received by the Company by such fifth
Business Day). Any such election shall be irrevocable. The address to which such
deliveries to are to be made is Sixth and Marquette, Minneapolis, Minnesota
55479 (or, at such other place as the Company shall notify the Holders of the
Securities of this series). All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Security for repayment will be
determined by the Company, whose determination will be final and binding. Upon
any partial repayment, this Security shall be cancelled and a new Security or
Securities for the remaining principal amount hereof shall be issued in the name
of the Holder of this Security.
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
8
<PAGE>
Registration of Transfer
Upon due presentment for registration of transfer of this Security at
the corporate trust office of the Trustee in the City of New York or at the
corporate trust office of the Paying Agent in Minneapolis, Minnesota, a new
Security or Securities of this series in authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange herefor,
as provided in the Indenture and subject to the limitations provided therein and
to the limitations described below, without charge except for any tax or other
governmental charge imposed in connection therewith.
If this Security is a Global Security (as specified above), this
Security is exchangeable for definitive Securities in registered form only if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a successor Depositary within 90 days
after receiving such notice or after becoming aware that the Depositary has
ceased to be so registered as a clearing agency, (y) the Company in its sole
discretion determines that this Security shall be exchangeable for definitive
Securities in registered form and notifies the Trustee thereof or (z) an Event
of Default with respect to the Securities represented hereby has occurred and is
continuing. If this Security is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, Stated Maturity Date and other terms and of authorized denominations
aggregating a like amount.
If this Security is a Global Security (as specified above), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except as provided
above, owners of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Securities in definitive form and will
not be considered the Holders hereof for any purpose under the Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, 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 or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the
9
<PAGE>
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
Defined Terms
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
10
<PAGE>
--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
--------------------
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or the portion thereof specified below), pursuant
to its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_________________________________________________________________________, at
_________________________________________________________________ (please print
or typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the holder elects to have repaid: $__________.
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination or denominations (which shall be $1,000 or
an integral multiple thereof) of the Security or Securities to be issued to the
holder for the portion of the within Securities
11
<PAGE>
not being repaid (in the absence of any specification, one such Security will be
issued for the portion not being repaid): $______________.
Date: _________________ ____________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the
name as written upon page 2 of the within
Security in every particular without
alteration or enlargement or any change
whatsoever.
12
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
- -----------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- ----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
13
<PAGE>
the within Security of WELLS FARGO & COMPANY and all rights thereunder and does
hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_________________________
Signature Guaranteed: _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
14
<PAGE>
EXHIBIT 4.3
[Series A MTNs]
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
WELLS FARGO & COMPANY
FORM OF
MEDIUM-TERM FLOATING RATE NOTE, SERIES A
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
[ ] Check box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the 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 requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % STATED MATURITY DATE:
BASE RATE: INITIAL INTEREST RATE: INTEREST PAYMENT DATES:
REGULAR RECORD DATES: INTEREST DETERMINATION DATES: CALCULATION DATES:
MAXIMUM RATE: MINIMUM RATE: INTEREST RESET PERIOD:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RESET DATES: INITIAL INTEREST RESET DATE: SPREAD MULTIPLIER:
SPREAD: + INDEX MATURITY: DESIGNATED CMT MATURITY
- INDEX AND DESIGNATED
TELERATE PAGE
(Only applicable if the Base
Rate is CMT):
DESIGNATED LIBOR PAGE INDEX CURRENCY CALCULATION AGENT:
(Only applicable if the Base Rate is (Only applicable if the Base Rate is
LIBOR): LIBOR):
[ ] LIBOR Telerate (p. __)
[ ] LIBOR Reuters (p. __)
OPTIONAL REDEMPTION INITIAL REDEMPTION DATE INITIAL REDEMPTION
(at option of Company): (at option of Company): PERCENTAGE:
ANNUAL REDEMPTION SINKING FUND: OPTION TO ELECT REPAYMENT:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS: DEPOSITARY
[ ] $1,000 (Only applicable if this Security
[ ] Other is a Global Security):
SPECIFIED CURRENCY:
OTHER/ADDITIONAL TERMS: ADDENDUM ATTACHED:
</TABLE>
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of
__________________________________Dollars ($_____________) on the Stated
Maturity Date shown above (except to the extent redeemed or repaid prior to such
date) and to pay interest, if any, on the Interest Payment Dates specified
above, commencing with the first Interest Payment Date specified above following
the Original Issue Date specified above, and at Maturity, on the principal
amount hereof, at a rate per annum equal to the Initial Interest Rate specified
above until the Initial Interest Reset Date specified above following the
Original Issue Date specified above and thereafter at a rate per annum
determined in accordance with the provisions on the reverse hereof under the
heading "Determination of CD Rate", "Determination of Commercial Paper Rate",
"Determination of EURIBOR", "Determination of Federal Funds Rate",
"Determination of
2
<PAGE>
LIBOR", "Determination of Prime Rate", "Determination of Treasury Rate" or
"Determination of CMT Rate", depending upon whether the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, LIBOR, Prime Rate, Treasury
Rate or CMT Rate, as specified above.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on this Security is
payable by the Company in the Specified Currency specified above.
Any Interest Payment Date specified above that would fall on a day that
is not a Business Day, other than an Interest Payment Date that is also the date
of Maturity, shall be the following day that is a Business Day, except that, if
the Base Rate specified above is LIBOR or EURIBOR and such following Business
Day is in the next calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day. If the date of Maturity would
fall on a day that is not a Business Day, the payment of principal and any
premium and interest shall be made on the following Business Day, with the same
force and effect as if made on the due date, and no additional interest shall
accrue on the amount so payable for the period from and after such date of
Maturity. For purposes of this Security, "Business Day" means (a) any day other
than a Saturday or Sunday that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close in
New York City or Minneapolis, Minnesota, and (b) if the Base Rate specified
above is LIBOR or EURIBOR, any day that meets the above criteria and which is
also a London Banking Day. For purposes of this Security, "London Banking Day"
means any day on which dealings in deposits in the Index Currency specified
above are transacted in the London interbank market.
Interest payments on this Security shall be the amount of interest
accrued from and including the Original Issue Date specified above or from and
including the last date to which interest has been paid, or provided for, as the
case may be, to but excluding, the following Interest Payment Date or the date
of Maturity. If this Security has been issued upon transfer of, in exchange for,
or in replacement of, a Predecessor Security, interest on this Security shall
accrue from the last Interest Payment Date to which interest was paid on such
Predecessor Security or, if no interest was paid on such Predecessor Security,
from the Original Issue Date specified above.
Subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, the interest so payable on any Interest Payment Date shall
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date (whether or not a Business Day) next
preceding such Interest Payment Date, and interest payable upon the Maturity
(whether or not such date of Maturity is an Interest Payment Date) shall be paid
to the Person to whom principal is payable; provided, however, that the first
payment of interest on a Security originally issued and dated between a Regular
Record Date
3
<PAGE>
specified above and an Interest Payment Date shall be due and payable on the
Interest Payment Date following the next succeeding Regular Record Date to the
registered owner on such next succeeding Regular Record Date. Unless otherwise
specified on the face hereof, "Regular Record Date" shall mean the fifteenth
calendar day (whether or not a Business Day) immediately preceding the related
Interest Payment Date.
Any interest not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly
provided for, the Company shall at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in New York City or Minneapolis, Minnesota. The
Company has initially appointed Norwest Bank Minnesota, N.A. as the Paying Agent
at its corporate trust office at Minneapolis, Minnesota.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security shall be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) shall be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series having the same
Interest Payment Date, by wire transfer of immediately available funds to such
account as may have been designated by such Holder. Any such designation for
wire transfer purposes shall be made by filing the appropriate information with
the Paying Agent at its corporate trust office not later than 10 calendar days
prior to the applicable Interest Payment Date and, unless revoked by written
notice to the Paying Agent received by the Paying Agent on or prior to the
Regular Record Date immediately preceding the applicable Interest Payment Date,
shall remain in effect with respect to any further payments with respect to this
Security payable to such Holder. Payment of principal of and interest, if any,
on this Security at Maturity shall be made against presentation of this Security
at the office or agency of the Company maintained for that purpose in New York
City or Minneapolis, Minnesota.
The Company shall pay any administrative costs imposed by banks on
payors in making payments on this Security in immediately available funds and
the Holder of this Security will pay any administrative costs imposed by banks
on payees in connection with
4
<PAGE>
such payments. Any tax, assessment or governmental charge imposed upon payments
on this Security shall be borne by the Holder of this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature or its duly
authorized agent referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
WELLS FARGO & COMPANY
By:__________________________________
Its:______________________________
[SEAL]
Attest:______________________________
Its:______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
CITIBANK, N.A.,
as Trustee
By:______________________________________
Authorized Signature
OR
NORWEST BANK MINNESOTA, N.A.,
as Authenticating Agent for the Trustee
By:______________________________________
Authorized Signature
6
<PAGE>
[Reverse of Note]
WELLS FARGO & COMPANY
MEDIUM-TERM FLOATING RATE NOTE, SERIES A
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of July 21, 1999, as amended or supplemented
from time to time (herein called the "Indenture"), between the Company and
Citibank, N.A., as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto, reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series of the Securities designated as Medium-Term Notes, Series A, of
the Company, which series is limited to an aggregate principal amount of
$7,150,000,000 or the equivalent thereof in one or more foreign or composite
currencies minus the aggregate principal amount of the Company's Subordinated
Medium-Term Notes, Series B which may be issued from time to time. The
Securities of this series may mature at different times, bear interest, if any,
at different rates, be redeemable at different times or not at all, be repayable
at the option of the Holder at different times or not at all, be issued at an
original issue discount and be denominated in different currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
Interest Rate Reset
The interest rate in effect from the Original Issue Date to the Initial
Interest Reset Date specified on the face hereof shall be the Initial Interest
Rate specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof following the Original Issue Date specified on
the face hereof, the rate at which interest on this Security is payable shall be
adjusted daily, weekly, monthly, quarterly, semi-annually or annually as
specified on the face hereof under "Interest Reset Period". Each such adjusted
rate shall be applicable from and including the Interest Reset Date to which it
relates to but not including the next succeeding Interest Reset Date or until
Maturity, as the case may be. Subject to applicable provisions of law and except
as specified herein, on each Interest Reset
7
<PAGE>
Date, the rate of interest on this Security shall be the rate determined with
respect to the Interest Determination Date next preceding such Interest Reset
Date in accordance with the provisions of the applicable heading below and
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, and/or by the multiplication by the Spread Multiplier, if any,
specified on the face hereof.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be the following Business Day,
except that if the Base Rate specified above is LIBOR or EURIBOR and if such
following Business Day is in the next calendar month, such Interest Reset Date
shall be the immediately preceding Business Day.
Accrued interest shall be calculated by multiplying the principal
amount by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factor calculated for each day in the period for
which interest is being paid. Unless otherwise specified on the face hereof, the
interest factor for each such day will be computed by dividing the interest rate
(expressed as a decimal) applicable to such day by 360, if the Base Rate is the
CD Rate, the Commercial Paper Rate, EURIBOR, the Federal Funds Rate, LIBOR or
the Prime Rate or by the actual number of days in the year, if the Base Rate is
the Treasury Rate or the CMT Rate.
Unless otherwise specified on the face hereof, all percentages
resulting from any calculation referred to herein shall be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of one percentage point rounded upward (e.g., 9.876545% (or.
09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)), and all dollar amounts used in or
resulting from any such calculation on this Security shall be rounded to the
nearest cent (with one-half cent being rounded upwards).
Notwithstanding the foregoing, the interest rate per annum hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date.
The interest rate on this Security shall in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that shall become effective on the next Interest
Reset Date with respect to this Security. The Calculation Agent's determination
of any interest rate shall be final and binding in the absence of manifest
error.
8
<PAGE>
A "Calculation Date", where applicable, for any Interest Determination
Date will be the earlier of:
o the tenth calendar day after that Interest Determination Date,
or, if that day is not a Business Day, the following Business
Day; or
o the Business Day before the applicable Interest Payment Date
or Maturity.
Determination of CD Rate
If the Base Rate specified on the face hereof is CD Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CD Interest Determination Date") shall
equal the rate on that date for negotiable certificates of deposit having the
Index Maturity specified on the face hereof as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication of the Board of Governors
of the Federal Reserve System, ("H.15(519)") under the heading "CDs (Secondary
Market)."
The following procedures will be followed if the CD Rate cannot be
determined as described above:
o If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate will
be the rate on the applicable CD Interest Determination Date
set forth in the daily update of H.15(519), available through
the world wide website of the Board of Governors of the
Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication (the "H.15 Daily Update"), for
the day in respect of certificates of deposit having the Index
Maturity specified on the face hereof under the caption "CDs
(secondary market)."
o If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, then the Calculation Agent will determine
the CD Rate to be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on that CD
Interest Determination Date of three leading nonbank dealers
in negotiable U.S. dollar certificates of deposit in New York
City, which may include the agents or their affiliates,
selected by the Calculation Agent, after consultation with the
Company, for negotiable certificates of deposit of major
United States money center banks of the highest credit
standing in the market for negotiable certificates of deposit
with a remaining maturity closest to the Index Maturity
specified on the face hereof in an amount that is
representative for a single transaction in the market at that
time.
o If the dealers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the CD Rate
in effect immediately before that CD Interest
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<PAGE>
Determination Date will not change and will remain the CD Rate
in effect on that CD Interest Determination Date.
Determination of Commercial Paper Rate
If the Base Rate specified on the face hereof is Commercial Paper Rate,
the interest rate per annum determined with respect to any Interest
Determination Date specified on the face hereof (each, a "Commercial Paper
Interest Determination Date") shall equal the Money Market Yield, calculated as
described below, of the rate on that date for commercial paper having the Index
Maturity specified on the face hereof as published in H.15(519) under the
heading "Commercial Paper--Nonfinancial."
The following procedures will be followed if the Commercial Paper Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate
will be the Money Market Yield of the rate on the applicable
Commercial Paper Interest Determination Date for commercial
paper having the Index Maturity specified on the face hereof
as published in the H.15 Daily Update under the heading
"Commercial Paper--Nonfinancial."
o If by 3:00 p.m., New York City time, on that Calculation Date
that rate is not yet published in either H.15(519) or the H.15
Daily Update, then the Calculation Agent will determine the
Commercial Paper Rate to be the Money Market Yield of the
arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Commercial Paper Interest
Determination Date of three leading dealers of commercial
paper in New York City, which may include the agents or their
affiliates, selected by the Calculation Agent, after
consultation with the Company, for commercial paper having the
Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized statistical rating
agency.
o If the dealers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the
Commercial Paper Rate in effect immediately before the
Commercial Paper Interest Determination Date will not change
and will remain the Commercial Paper Rate in effect on that
Commercial Paper Interest Determination Date.
10
<PAGE>
"Money Market Yield" will be a yield calculated in accordance with the
following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable annual rate for commercial paper quoted on a
bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of EURIBOR
If the Base Rate specified on the face hereof is EURIBOR, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "EURIBOR Interest Determination Date")
shall equal the rate for deposits in euros as sponsored, calculated and
published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service, which is commonly referred to as "Telerate
Page 248," as of 11:00 a.m.
(Brussels time).
The following procedures will be followed if the EURIBOR Rate cannot be
determined as described above:
o If the above rate does not appear, the Calculation Agent will
request the principal Euro-zone, as defined below, office of
each of four major banks in the Euro-zone interbank market, as
selected by the Calculation Agent, after consultation with the
Company, to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m.
(Brussels time) on the EURIBOR Interest Determination Date, to
prime banks in the Euro-zone interbank market for the Index
Maturity specified on the face hereof commencing on the
applicable EURIBOR Interest Reset Date, and in a principal
amount not less than the equivalent of U.S. $1 million in euro
that is representative of a single transaction in euro, in
that market at that time. If at least two quotations are
provided, EURIBOR will be arithmetic mean of those quotations.
o If fewer than two quotations are provided, EURIBOR will be the
arithmetic mean of the rates quoted by four major banks in the
Euro-zone, as selected by the Calculation Agent, after
consultation with the Company, at approximately 11:00 a.m.
(Brussels time), on the applicable EURIBOR Interest Reset Date
for loans in euro to leading European banks for a period of
time equivalent to the Index Maturity specified on the face
hereof commencing on that EURIBOR Interest Reset Date in a
principal amount not less than the equivalent of U.S. $1
million in euro.
11
<PAGE>
o If the banks selected by the Calculation Agent are not quoting
as described in the previous bullet point, the EURIBOR in
effect immediately before such EURIBOR Interest Determination
Date will not change and will remain the EURIBOR in effect on
that EURIBOR Interest Determination Date.
"Euro-zone" means the region comprised of member states of the European Union
that adopt the single currency in accordance with the treaty establishing the
European Community, as amended by the treaty on European Union.
Determination of Federal Funds Rate
If the Base Rate specified on the face hereof is Federal Funds Rate,
the interest rate per annum determined with respect to any Interest
Determination Date specified on the face hereof (each, a "Federal Funds Interest
Determination Date") shall equal the rate on that day for federal funds as
published in H.15(519) under the heading "Federal Funds (Effective)" as
displayed on Bridge Telerate, Inc. or any successor service on page 120 or any
other page as may replace the applicable page on that service ("Telerate Page
120").
The following procedures will be followed if the Federal Funds Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate will be
the rate on the applicable Federal Funds Interest
Determination Date as published in the H.15 Daily Update under
the heading "Federal Funds/(Effective)."
o If that rate is not yet published in either H.15(519) or H.15
Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent will determine the
Federal Funds Rate to be the arithmetic mean of the rates for
the last transaction in overnight U.S. dollar Federal Funds
arranged by each of three leading brokers of U.S. dollar
Federal Funds transactions in New York City, which may include
the agents or their affiliates, selected by the Calculation
Agent, after consultation with the Company, before 9:00 a.m.,
New York City time, on that Federal Funds Interest
Determination Date.
o If the brokers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the Federal
Funds Rate in effect immediately before that Federal Funds
Interest Determination Date will not change and will remain
the Federal Funds Rate in effect on that Federal Funds
Interest Determination Date.
Determination of LIBOR
If the Base Rate specified on the face hereof is LIBOR, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "LIBOR Interest Determination Date") shall
be determined by the Calculation Agent by reference to the display on Bridge
Telerate Inc., or any successor service, on Page 3750,
12
<PAGE>
or any other page as may replace that page on that service, for the purpose of
displaying the London interbank rates of major banks for the applicable Index
Currency ("LIBOR Telerate"). The "Index Currency" means the currency specified
on the face hereof as the currency for which LIBOR will be calculated, or, if
the euro is substituted for that currency, the Index Currency will be the euro.
If no currency is specified on the face hereof the Index Currency will be U.S.
dollars.
o As of the LIBOR Interest Determination Date, LIBOR will be the
rate for deposits in the Index Currency having the Index
Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following that LIBOR
Interest Determination Date or, if pounds sterling is the
Index Currency, commencing on that LIBOR Interest
Determination Date that appears on LIBOR Telerate as of 11:00
a.m., London time, on that LIBOR Interest Determination Date.
o If no rate appears, then the Calculation Agent will request
the principal London offices of each of four major reference
banks in the London interbank market, as selected by the
Calculation Agent, after consultation with the Company, to
provide the Calculation Agent with its offered quotation for
deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof commencing on the second
London Banking Day immediately following the LIBOR Interest
Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on that LIBOR
Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency
in that market at that time. If at least two quotations are
provided, LIBOR determined on that LIBOR Interest
Determination Date will be the arithmetic mean of those
quotations.
o If fewer than two quotations are provided, LIBOR will be
determined for the applicable Interest Reset Date as the
arithmetic mean of the rates quoted at approximately 11:00
a.m., London time, or some other time specified on the face
hereof, in the applicable principal financial center for the
country of the Index Currency on that Interest Reset Date, by
three major banks in that principal financial center selected
by the Calculation Agent, after consultation with the Company,
for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in
a principal amount that is representative of a single
transaction in that Index Currency in that market at that
time.
o If the banks so selected by the Calculation Agent are not
quoting as described in the previous bullet point, LIBOR in
effect immediately before such LIBOR Interest Determination
Date will not change and will remain the LIBOR in effect on
such LIBOR Interest Determination Date.
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<PAGE>
If LIBOR Reuters is specified on the face hereof, then LIBOR for each
LIBOR Interest Determination Date will be determined by the Calculation Agent by
reference to the display on the Reuters Monitor Money Rates Service, on the page
specified on the face hereof, or any other page on any designated successor
service, for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency ("LIBOR Reuters"), and the first bullet point
of the previous paragraph will be replaced with the following:
o As of the LIBOR Interest Determination Date, LIBOR will be the
arithmetic mean of the offered rates for deposits in the Index
Currency having the Index Maturity specified on the face
hereof, commencing on the second London Banking Day
immediately following that LIBOR Interest Determination Date,
that appear on LIBOR Reuters as of 11:00 a.m., London time, on
that LIBOR Interest Determination Date, if at least two
offered rates appear on LIBOR Reuters; provided, however, that
if LIBOR Reuters by its terms provides for only a single rate,
that single offered rate will be used.
o If fewer than two rates appear or no rates appear, as
applicable, then LIBOR shall be calculated as described in the
last three bullet points in the previous paragraph.
Determination of Prime Rate
If the Base Rate specified on the face hereof is Prime Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Prime Interest Determination Date")
shall equal the rate on such date as published in H.15(519) under the heading
"Bank Prime Loan."
The following procedures will be followed if the Prime Rate cannot be
determined as described above:
o If the rate is not published before 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate will be the
rate on such Prime Interest Determination Date as published in
the H.15 Daily Update, under the heading "Bank Prime Loan."
o If the rate is not published before 3:00 p.m., New York City
time, on the Calculation Date, in either H.15(519) or the H.15
Daily Update, then the Calculation Agent will determine the
Prime Rate to be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters
Screen US PRIME1 Page, as defined below, as that bank's prime
rate or base lending rate as in effect for that Prime Interest
Determination Date.
o If fewer than four rates appear on the Reuters Screen US
PRIME1 Page on that Prime Interest Determination Date, then
the Calculation Agent will determine the Prime Rate to be the
arithmetic mean of the prime rates or base lending rates
quoted on the basis of the actual number of days in the year
divided by 360, as of
14
<PAGE>
the close of business on that Prime Interest Determination
Date by at least three major banks in New York City, which may
include affiliates of the agents, selected by the Calculation
Agent.
o If the banks selected are not quoting as described in the
previous bullet point, the Prime Rate in effect immediately
before such Prime Interest Determination Date will not change
and will remain the Prime Rate in effect on such Prime
Interest Determination Date.
"Reuters Screen US PRIME1 Page" means the display designated as page "USPRIME1"
on the Reuters Monitor Money Rates Service, or any successor service or any
other page as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks.
Determination of Treasury Rate
If the Base Rate specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Treasury Interest Determination
Date") shall equal the rate from the auction held on that date of direct
obligations of the United States, which are commonly referred to as "Treasury
bills," having the Index Maturity specified on the face hereof under the caption
"Investment Rate" on the display on Bridge Telerate, Inc., or any successor
service on:
o page 56, or any other page as may replace such page on such
service ("Telerate Page 56");
o page 57, or any other page as may replace such page on such
service, ("Telerate Page 57"); or,
o if not so published by 3:00 p.m., New York City time, on the
related Calculation Date, the Bond Equivalent Yield, as
defined below, of the rate for the Treasury bills as published
in the H.15(519) Daily Update, or such other recognized
electronic source used for the purpose of displaying such
rate, under the heading "U.S. Government Securities/Treasury
Bills/Auction High."
The following procedures will be followed if the Treasury Rate cannot
be determined as described above:
o If the above rate is not published by 3:00 p.m., New York City
time, on the Calculation Date, the Treasury Rate will be the
Bond Equivalent Yield of the auction rate of the applicable
Treasury bills on that Treasury Interest Determination Date as
announced by the United States Department of the Treasury.
o In the event that the auction rate of Treasury bills having
the Index Maturity specified on the face hereof is not
published or announced as provided above by
15
<PAGE>
3:00 p.m., New York City time, on such Calculation Date, or if
no auction is held on that Treasury Interest Determination
Date, then the Calculation Agent will determine the Treasury
Rate to be the Bond Equivalent Yield of the rate on that
Treasury Interest Determination Date of Treasury bills having
the Index Maturity specified on the face hereof as published
in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market" or, if not yet
published by 3:00 p.m., New York City time, on the related
Calculation Date, the rate on such Treasury Interest
Determination Date of the applicable Treasury bills as
published in the H.15 Daily Update under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market." If
that rate is not yet published in H.15(519) or the H.15 Daily
Update, then the Treasury Rate will be calculated by the
Calculation Agent and will be the Bond Equivalent Yield of the
arithmetic mean of the secondary market bid rates, as of
approximately 3:30 p.m., New York City time, on that Treasury
Interest Determination Date, of three primary United States
government securities dealers, which may include the agents or
their affiliates, selected by the Calculation Agent, for the
issue of Treasury bills with a remaining maturity closest to
the Index Maturity specified on the face hereof.
o If the dealers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the
Treasury Rate in effect immediately before that Treasury
Interest Determination Date will not change and will remain
the Treasury Rate in effect on such Treasury Interest
Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated as
follows:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable annual rate for the Treasury notes quoted on
a bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as
the case may be, and "M" refers to the actual number of days in the interest
period for which interest is being calculated.
Determination of CMT Rate
If the Base Rate specified on the face hereof is CMT Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CMT Interest Determination Date) shall
equal the rate displayed on the Designated CMT Telerate Page, as defined below,
under the caption "Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays Approximately 3:45 p.m.," under the column for the
Designated CMT Maturity Index, as defined below, for:
16
<PAGE>
(i) if the Designated CMT Telerate Page is 7051, that CMT
Interest Determination Date; and
(ii) if the Designated CMT Telerate Page is 7052, the week or
the month, as applicable, ended immediately before the week in which
the related CMT Interest Determination Date occurs.
The following procedures will be used if the CMT Rate cannot be
determined as described above:
o If that rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate will be the
treasury constant maturity rate for the Designated CMT
Maturity Index, as defined below, as published in H.15(519).
o If that rate is no longer published, or if not published by
3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate will be the treasury constant maturity
rate for the Designated CMT Maturity Index, or other United
States Treasury rate for the Designated CMT Maturity Index,
for the CMT Interest Determination Date with respect to that
Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in H.15(519).
o If the information described above is not provided by 3:00
p.m., New York City time, on the related Calculation Date,
then the Calculation Agent will determine the CMT Rate to be a
yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately
3:30 p.m., New York City time, on the CMT Interest
Determination Date reported, according to their written
records, by three leading primary United States government
securities dealers (each a "reference dealer") in New York
City selected by the Calculation Agent as described in the
following sentence, which may include the agents or their
affiliates. The Calculation Agent will select five reference
dealers, after consultation with the Company, and will
eliminate the highest quotation, or, in the event of overlap,
one of the highest and the lowest quotation, or, in the event
of overlap, one of the lowest, for the most recently issued
direct noncallable fixed rate obligations of the United
States, which are commonly referred to as "Treasury notes,"
with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year.
o If the Calculation Agent cannot obtain three such Treasury
notes quotations, the Calculation Agent will determine the CMT
Rate to be a yield to maturity based on the arithmetic mean of
the secondary market offer side prices as of approximately
17
<PAGE>
3:30 p.m., New York City time, on the CMT Interest
Determination Date of three reference dealers in New York
City, which may include the agents or their affiliates,
selected using the same method described above, for Treasury
notes with an original maturity of the number of years closest
to but not less than the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If
two Treasury notes with an original maturity as described
above have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the Calculation Agent will
obtain quotations for the Treasury note with the shorter
remaining term to maturity.
o If three or four, but not five, of the reference dealers are
quoting as described immediately above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained
and neither the highest nor the lowest of the quotes will be
eliminated.
o If fewer than three reference dealers selected by the
Calculation Agent are quoting as described above, the CMT Rate
in effect immediately before such CMT Interest Determination
Date will not change and will remain the CMT Rate in effect on
such CMT Interest Determination Date.
"Designated CMT Telerate Page" means the display on Bridge Telerate, Inc., or
any successor service, on the page designated on the face hereof, or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no page is specified
on the face hereof, the Designated CMT Telerate Page will be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity of the
U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified on
the face hereof with respect to which the CMT Rate will be calculated. If no
maturity is specified on the face hereof, the Designated CMT Maturity Index will
be two years.
Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Modification and Waivers; Obligation of the Company Absolute
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together as a class.
The Indenture also contains provisions permitting the Holders of a majority in
18
<PAGE>
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together as a class, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with those provisions of the Indenture. Certain past defaults under
the Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this Security
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
Security at the times, place and rate, and in the coin or currency, herein
prescribed, except that in the event the Company deposits money or Eligible
Instruments as provided in Section 401 or 403 of the Indenture, such payments
shall be made only from proceeds of such money or Eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security shall not be less
than the minimum authorized denomination hereof) on or after the date designated
as the Initial Redemption Date on the face hereof at 100% of the unpaid
principal amount hereof or the portion thereof redeemed multiplied by a
percentage (the "Redemption Percentage"), together with accrued interest, if
any, to the Redemption Date. The Redemption Percentage shall initially be equal
to the Initial Redemption Percentage specified on the face hereof and shall
decline at each anniversary of the Initial Redemption Date by the amount of the
Annual Redemption Percentage Reduction specified on the face hereof, until the
Redemption Percentage is equal to 100%. The Company may exercise such option by
causing the Trustee to mail a notice of such redemption at least 30 but not more
than 60 days prior to the applicable Redemption Date to each Holder of the
Securities of this series to be redeemed. In the event of redemption of this
Security in part only, the Company shall issue a new Security or Securities for
the unredeemed portion hereof in the name of the Holder hereof upon the
cancellation hereof. If less than all of the Securities of this series with like
tenor and terms are to be redeemed, the Securities to be redeemed shall be
selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
19
<PAGE>
Sinking Fund
Unless otherwise specified on the face hereof, this Security shall not
be entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable
prior to the Stated Maturity Date at the option of the Holder, in whole or in
part and in increments of $1,000 (provided that any remaining principal amount
of this Security surrendered for partial repayment shall not be less than the
minimum authorized denomination hereof), on or after the date designated as an
Optional Repayment Date on the face hereof at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the Repayment Date. In order for this
Security to be repaid, the Company must receive at the applicable address of the
Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Security, at
least 30 but not more than 45 days prior to an Optional Repayment Date, either
(i) this Security, with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby, and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed, not later than five Business Days after the
date of such telegram, telex, facsimile transmission or letter (and this
Security and form duly completed are received by the Company by such fifth
Business Day). Any such election shall be irrevocable. The address to which such
deliveries to are to be made is Sixth and Marquette, Minneapolis, Minnesota
55479 (or, at such other place as the Company shall notify the Holders of the
Securities of this series). All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Security for repayment will be
determined by the Company, whose determination will be final and binding. Upon
any partial repayment, this Security shall be cancelled and a new Security or
Securities for the remaining principal amount hereof shall be issued in the name
of the Holder of this Security.
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
Registration of Transfer
Upon due presentment for registration of transfer of this Security at
the corporate trust office of the Trustee in the City of New York or at the
corporate trust office of the Paying
20
<PAGE>
Agent in Minneapolis, Minnesota a new Security or Securities of this series in
authorized denominations for an equal aggregate principal amount will be issued
to the transferee in exchange herefor, as provided in the Indenture and subject
to the limitations provided therein and to the limitations described below,
without charge except for any tax or other governmental charge imposed in
connection therewith.
If this Security is a Global Security (as specified above), this
Security is exchangeable for definitive Securities in registered form only if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a successor Depositary within 90 days
after receiving such notice or after becoming aware that the Depositary has
ceased to be so registered as a clearing agency, (y) the Company in its sole
discretion determines that this Security shall be exchangeable for definitive
Securities in registered form and notifies the Trustee thereof or (z) an Event
of Default with respect to the Securities represented hereby has occurred and is
continuing. If this Security is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, Stated Maturity Date and other terms and of authorized denominations
aggregating a like amount.
If this Security is a Global Security (as specified above), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except as provided
above, owners of beneficial interests in this Global Security will not be
entitled to receive physical delivery of Securities in definitive form and will
not be considered the Holders hereof for any purpose under the Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, 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 or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, 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 part of the consideration for the
issuance hereof, expressly waived and released.
21
<PAGE>
Defined Terms
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
22
<PAGE>
--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
--------------------
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or the portion thereof specified below), pursuant
to its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_____________________________, at ______________________________________ (please
print or typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the Holder elects to have repaid: $__________.
23
<PAGE>
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination or denominations (which shall be $1,000 or
an integral multiple thereof) of the Security or Securities to be issued to the
Holder for the portion of the within Securities not being repaid (in the absence
of any specification, one such Security will be issued for the portion not being
repaid): $______________.
Date: _________________ ____________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the
name as written upon page 2 of the within
Security in every particular without
alteration or enlargement or any change
whatsoever.
24
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
- --------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- -----------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
25
<PAGE>
the within Security of WELLS FARGO & COMPANY and all rights thereunder and does
hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_________________________
Signature Guaranteed: _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
26
<PAGE>
EXHIBIT 4.4
[Series B MTNs]
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
WELLS FARGO & COMPANY
FORM OF
SUBORDINATED MEDIUM-TERM FIXED RATE NOTE, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
[ ] Check this box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the 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 requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % INTEREST RATE PER ANNUM:
STATED MATURITY DATE: INTEREST PAYMENT DATES: REGULAR RECORD DATES:
OPTIONAL REDEMPTION: INITIAL REDEMPTION PERCENTAGE: ANNUAL REDEMPTION
PERCENTAGE REDUCTION:
INITIAL REDEMPTION DATE: SINKING FUND: OPTION TO ELECT REPAYMENT:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS: DEPOSITARY (Only applicable
[ ] $1,000 if this Security is a Global Security):
[ ] Other
SPECIFIED CURRENCY:
OTHER/ADDITIONAL TERMS: ADDENDUM ATTACHED:
</TABLE>
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to __________________, or registered
assigns, the principal sum of _______________________ Dollars ($______________)
on the Stated Maturity Date shown above (except to the extent redeemed or repaid
prior to such date) and to pay interest, if any, on the principal amount hereof
at the Interest Rate shown above (computed on the basis of a 360-day year of
twelve 30-day months), semi-annually on each Interest Payment Date set forth
above from and after the date of this Security and at Maturity until payment of
the principal amount hereof has been made or duly provided for. Unless this
Security is a Security which has been issued upon transfer of, in exchange for,
or in replacement of, a Predecessor Security, interest on this Security shall
accrue from the Original Issue Date indicated above. If this Security has been
issued upon transfer of, in exchange for, or in replacement of, a Predecessor
Security, interest on this Security shall accrue from the last Interest Payment
Date to which interest was paid on such Predecessor Security or, if no interest
was paid on such Predecessor Security, from the Original Issue Date indicated
above. The first payment of interest on a Security originally issued and dated
between a Regular Record Date specified above and an Interest Payment Date will
be due and payable on the Interest Payment Date following the next succeeding
Regular Record Date to the registered owner on such next succeeding Regular
Record Date. Subject to certain exceptions provided in the Indenture referred to
herein below, the interest so payable on any Interest Payment Date will be paid
to the Person in whose name this Security is registered at the close of business
on the Regular Record Date (whether or not a Business Day) next preceding such
Interest Payment Date, and interest payable upon Maturity will be paid to the
person to whom principal is payable.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on this Security is
payable by the Company in the Specified Currency specified above.
Any interest not punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a
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Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities of this
series not less than 10 days prior to such Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly
provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in New York City or Minneapolis, Minnesota. The
Company has initially appointed Norwest Bank Minnesota, N.A. as the Paying Agent
at its corporate trust offices at Minneapolis, Minnesota.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security will be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) will be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series having the same
Interest Payment Date, by wire transfer of immediately available funds to such
account as may have been designated by such Holder. Any such designation for
wire transfer purposes shall be made by filing the appropriate information with
the Paying Agent at its corporate trust office not later than 10 calendar days
prior to the applicable Interest Payment Date and, unless revoked by written
notice to the Paying Agent received by the Paying Agent on or prior to the
Regular Record Date immediately preceding the applicable Interest Payment Date,
shall remain in effect with respect to any further payments with respect to this
Security payable to such Holder. Payment of principal of and interest, if any,
on this Security at Maturity will be made against presentation of this Security
at the office or agency of the Company maintained for that purpose in New York
City or Minneapolis, Minnesota.
The Company will pay any administrative costs imposed by banks on
payors in making payments on this Security in immediately available funds and
the Holder of this Security will pay any administrative costs imposed by banks
on payees in connection with such payments. Any tax, assessment or governmental
charge imposed upon payments on this Security will be borne by the Holder of
this Security.
Any payment on this Security due on any day which is not a Business Day
need not be made on such day, but may be made on the next succeeding Business
Day with the same force and effect as if made on the due date and no additional
interest shall accrue on the amount so payable for the period from and after
such date. For purposes of this Security, "Business Day" means any day other
than a Saturday, Sunday or a legal holiday or a day on which banking
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<PAGE>
institutions are authorized or required by law or regulation to close in New
York City or Minneapolis, Minnesota.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature or its duly
authorized agent referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
WELLS FARGO & COMPANY
By:___________________________________
Its:_______________________________
[SEAL]
Attest:_______________________________
Its:_______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:______________________________________
Authorized Signature
OR
NORWEST BANK MINNESOTA, N.A.,
as Authenticating Agent for the Trustee
By:______________________________________
Authorized Signature
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<PAGE>
[Reverse of Note]
WELLS FARGO & COMPANY
SUBORDINATED MEDIUM-TERM FIXED RATE NOTE, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of August 30, 1999, as amended or
supplemented from time to time (herein called the "Indenture"), between the
Company and The First National Bank of Chicago, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto, reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series of the
Securities designated as Subordinated Medium-Term Notes, Series B, of the
Company, which series is limited to an aggregate principal amount of
$7,150,000,000 or the equivalent thereof in one or more foreign or composite
currencies minus the aggregate principal amount of the Company's Medium-Term
Notes, Series A which may be issued from time to time. The Securities of this
series may mature at different times, bear interest, if any, at different rates,
be redeemable at different times or not at all, be repayable at the option of
the Holder at different times or not at all, be issued at an original issue
discount and be denominated in different currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
The indebtedness evidenced by this Security is, to the extent and in
the manner set forth in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the principal of and premium, if any,
and interest on all Senior Debt of the Company, and the Holder of this Security,
by accepting the same, agrees to and shall be bound by the provisions of the
Indenture with respect thereto.
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Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Modification and Waivers; Obligation of the Company Absolute
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together as a class.
The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together as a class, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with those provisions of the Indenture. Certain past defaults under
the Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
Subject to the rights of holders of Senior Debt of the Company set
forth in this Security and the Indenture referred to above, no reference herein
to the Indenture and no provision of this Security 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 Security at the
times, place and rate, and in the coin or currency, herein prescribed, except
that in the event the Company deposits money or Eligible Instruments as provided
in Section 401 or 403 of the Indenture, such payments will be made only from
proceeds of such money or Eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
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Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security shall not be less
than the minimum authorized denomination hereof) on or after the date designated
as the Initial Redemption Date on the face hereof at 100% of the unpaid
principal amount hereof or the portion thereof redeemed multiplied by a
percentage (the "Redemption Percentage"), together with accrued interest, if
any, to the Redemption Date. The Redemption Percentage shall initially be equal
to the Initial Redemption Percentage specified on the face hereof and shall
decline at each anniversary of the Initial Redemption Date by the amount of the
Annual Redemption Percentage Reduction specified on the face hereof, until the
Redemption Percentage is equal to 100%. The Company may exercise such option by
causing the Trustee to mail a notice of such redemption at least 30 but not more
than 60 days prior to the applicable Redemption Date to each Holder of the
Securities of this series to be redeemed. In the event of redemption of this
Security in part only, the Company shall issue a new Security or Securities for
the unredeemed portion hereof in the name of the Holder hereof upon the
cancellation hereof. If less than all of the Securities of this series with like
tenor and terms are to be redeemed, the Securities to be redeemed shall be
selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
Sinking Fund
Unless otherwise specified on the face hereof, this Security will not
be entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable
prior to the Stated Maturity Date at the option of the Holder, in whole or in
part and in increments of $1,000 (provided that any remaining principal amount
of this Security surrendered for partial repayment shall not be less than the
minimum authorized denomination hereof), on or after the date designated as an
Optional Repayment Date on the face hereof at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the Repayment Date. In order for this
Security to be repaid, the Company must receive at the applicable address of the
Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Security, at
least 30 but not more than 45 days prior to an Optional Repayment Date, either
(i) this Security, with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby, and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed, not
8
<PAGE>
later than five Business Days after the date of such telegram, telex, facsimile
transmission or letter (and this Security and form duly completed are received
by the Company by such fifth Business Day). Any such election shall be
irrevocable. The address to which such deliveries to are to be made is Sixth and
Marquette, Minneapolis, Minnesota 55479 (or, at such other place as the Company
shall notify the Holders of the Securities of this series). All questions as to
the validity, eligibility (including time of receipt) and acceptance of any
Security for repayment will be determined by the Company, whose determination
will be final and binding. Upon any partial repayment, this Security shall be
cancelled and a new Security or Securities for the remaining principal amount
hereof shall be issued in the name of the Holder of this Security.
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
Registration of Transfer
Upon due presentment for registration of transfer of this Security at
the corporate trust office of the Trustee in the City of New York or at the
corporate trust office of the Paying Agent in Minneapolis, Minnesota, a new
Security or Securities of this series in authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange herefor,
as provided in the Indenture and subject to the limitations provided therein and
to the limitations described below, without charge except for any tax or other
governmental charge imposed in connection therewith.
If this Security is a Global Security (as specified above), this
Security is exchangeable for definitive Securities in registered form only if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a successor Depositary within 90 days
after receiving such notice or after becoming aware that the Depositary has
ceased to be so registered as a clearing agency, (y) the Company in its sole
discretion determines that this Security shall be exchangeable for definitive
Securities in registered form and notifies the Trustee thereof or (z) an Event
of Default with respect to the Securities represented hereby has occurred and is
continuing. If this Security is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, Stated Maturity Date and other terms and of authorized denominations
aggregating a like amount.
If this Security is a Global Security (as specified above), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except
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<PAGE>
as provided above, owners of beneficial interests in this Global Security will
not be entitled to receive physical delivery of Securities in definitive form
and will not be considered the Holders hereof for any purpose under the
Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, 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 or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, 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 part of the consideration for the
issuance hereof, expressly waived and released.
Defined Terms
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
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--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
--------------------
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or the portion thereof specified below), pursuant
to its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_________________________________________________________________________, at
_________________________________________________________________ (please print
or typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the holder elects to have repaid: $__________.
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination or denominations (which shall be $1,000 or
an integral multiple thereof) of the
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Security or Securities to be issued to the holder for the portion of the within
Securities not being repaid (in the absence of any specification, one such
Security will be issued for the portion not being repaid): $______________.
Date: _________________ ____________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the
name as written upon page 2 of the within
Security in every particular without
alteration or enlargement or any change
whatsoever.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
- ---------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- --------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
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the within Security of WELLS FARGO & COMPANY and all rights thereunder and does
hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_________________________
Signature Guaranteed: _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
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EXHIBIT 4.5
[Series B MTNs]
[Face of Note]
CUSIP NO. PRINCIPAL AMOUNT: $
REGISTERED NO.
WELLS FARGO & COMPANY
FORM OF
SUBORDINATED MEDIUM-TERM FLOATING RATE NOTE, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
[ ] Check box if this Security is a Global Security.
Applicable if this Security is a Global Security:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation (55 Water Street, New
York, New York) ("DTC"), to the 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 requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
[If applicable, this Security will contain information required by U.S.
Federal Income Tax "Original Issue Discount" rules, as that term is defined in
the Internal Revenue Code of 1986, as amended.]
<TABLE>
<CAPTION>
<S> <C> <C>
ORIGINAL ISSUE DATE: ISSUE PRICE: % STATED MATURITY DATE:
BASE RATE: INITIAL INTEREST RATE: INTEREST PAYMENT DATES:
REGULAR RECORD DATES: INTEREST DETERMINATION DATES: CALCULATION DATES:
MAXIMUM RATE: MINIMUM RATE: INTEREST RESET PERIOD:
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RESET DATES: INITIAL INTEREST RESET DATE: SPREAD MULTIPLIER:
SPREAD: + INDEX MATURITY: DESIGNATED CMT MATURITY
- INDEX AND DESIGNATED
TELERATE PAGE
(Only applicable if the Base
Rate is CMT):
DESIGNATED LIBOR PAGE INDEX CURRENCY CALCULATION AGENT:
(Only applicable if the Base Rate is (Only applicable if the Base Rate is
LIBOR): LIBOR):
[ ] LIBOR Telerate (p. __)
[ ] LIBOR Reuters (p. __)
OPTIONAL REDEMPTION INITIAL REDEMPTION DATE INITIAL REDEMPTION
(at option of Company): (at option of Company): PERCENTAGE:
ANNUAL REDEMPTION SINKING FUND: OPTION TO ELECT REPAYMENT:
PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS: DEPOSITARY
[ ] $1,000 (Only applicable if this
[ ] Other Security is a Global Security):
SPECIFIED CURRENCY:
OTHER/ADDITIONAL TERMS: ADDENDUM ATTACHED:
</TABLE>
WELLS FARGO & COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to ______________________________, or
registered assigns, the principal sum of
__________________________________Dollars ($_____________) on the Stated
Maturity Date shown above (except to the extent redeemed or repaid prior to such
date) and to pay interest, if any, on the Interest Payment Dates specified
above, commencing with the first Interest Payment Date specified above following
the Original Issue Date specified above, and at Maturity, on the principal
amount hereof, at a rate per annum equal to the Initial Interest Rate specified
above until the Initial Interest Reset Date specified above following the
Original Issue Date specified above and thereafter at a rate per annum
determined in accordance with the provisions on the reverse hereof under the
heading
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"Determination of CD Rate", "Determination of Commercial Paper Rate",
"Determination of EURIBOR", "Determination of Federal Funds Rate",
"Determination of LIBOR", "Determination of Prime Rate", "Determination of
Treasury Rate" or "Determination of CMT Rate", depending upon whether the Base
Rate is CD Rate, Commercial Paper Rate, EURIBOR, Federal Funds Rate, LIBOR,
Prime Rate, Treasury Rate or CMT Rate, as specified above.
Notwithstanding the foregoing, if an Addendum is attached hereto or
"Other/Additional Terms" apply to this Security as specified above, this
Security shall be subject to the terms set forth in such Addendum or such
"Other/Additional Terms."
The principal (and premium, if any) and interest on this Security is
payable by the Company in the Specified Currency specified above.
Any Interest Payment Date specified above that would fall on a day that
is not a Business Day, other than an Interest Payment Date that is also the date
of Maturity, shall be the following day that is a Business Day, except that, if
the Base Rate specified above is LIBOR or EURIBOR and such following Business
Day is in the next calendar month, such Interest Payment Date shall be the
immediately preceding day that is a Business Day. If the date of Maturity would
fall on a day that is not a Business Day, the payment of principal and any
premium and interest shall be made on the following Business Day, with the same
force and effect as if made on the due date, and no additional interest shall
accrue on the amount so payable for the period from and after such date of
Maturity. For purposes of this Security, "Business Day" means (a) any day other
than a Saturday or Sunday that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to close in
New York City or Minneapolis, Minnesota, and (b) if the Base Rate specified
above is LIBOR or EURIBOR, any day that meets the above criteria and which is
also a London Banking Day. For purposes of this Security, "London Banking Day"
means any day on which dealings in deposits in the Index Currency specified
above are transacted in the London interbank market.
Interest payments on this Security shall be the amount of interest
accrued from and including the Original Issue Date specified above or from and
including the last date to which interest has been paid, or provided for, as the
case may be, to but excluding, the following Interest Payment Date or the date
of Maturity. If this Security has been issued upon transfer of, in exchange for,
or in replacement of, a Predecessor Security, interest on this Security shall
accrue from the last Interest Payment Date to which interest was paid on such
Predecessor Security or, if no interest was paid on such Predecessor Security,
from the Original Issue Date specified above.
Subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, the interest so payable on any Interest Payment Date shall
be paid to the Person in whose name this Security is registered at the close of
business on the Regular Record Date
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(whether or not a Business Day) next preceding such Interest Payment Date, and
interest payable upon the Maturity (whether or not such date of Maturity is an
Interest Payment Date) shall be paid to the Person to whom principal is payable;
provided, however, that the first payment of interest on a Security originally
issued and dated between a Regular Record Date specified above and an Interest
Payment Date shall be due and payable on the Interest Payment Date following the
next succeeding Regular Record Date to the registered owner on such next
succeeding Regular Record Date. Unless otherwise specified on the face hereof,
"Regular Record Date" shall mean the fifteenth calendar day (whether or not a
Business Day) immediately preceding the related Interest Payment Date.
Any interest not punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Until this Security is paid in full or payment therefor in full is duly
provided for, the Company shall at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in New York City or Minneapolis, Minnesota. The
Company has initially appointed Norwest Bank Minnesota, N.A. as the Paying Agent
at its corporate trust office at Minneapolis, Minnesota.
If this Security is a Global Security: Payments of principal and any
premium and interest on this Security shall be made to DTC or its nominee, as
Holder of this Security, by wire transfer of immediately available funds.
If this Security is not a Global Security: Payment of interest on this
Security (other than payments of interest at Maturity) shall be made by check
mailed to the Person entitled thereto at such Person's last address as it
appears in the Security Register or, in the case of a Holder of $50,000,000 or
more in aggregate principal amount of Securities of this series having the same
Interest Payment Date, by wire transfer of immediately available funds to such
account as may have been designated by such Holder. Any such designation for
wire transfer purposes shall be made by filing the appropriate information with
the Paying Agent at its corporate trust office not later than 10 calendar days
prior to the applicable Interest Payment Date and, unless revoked by written
notice to the Paying Agent received by the Paying Agent on or prior to the
Regular Record Date immediately preceding the applicable Interest Payment Date,
shall remain in effect with respect to any further payments with respect to this
Security payable to such Holder. Payment of principal of and interest, if any,
on this Security at Maturity shall be made against presentation of this Security
at the office or agency of the Company maintained for that purpose in New York
City or Minneapolis, Minnesota.
4
<PAGE>
The Company shall pay any administrative costs imposed by banks on
payors in making payments on this Security in immediately available funds and
the Holder of this Security will pay any administrative costs imposed by banks
on payees in connection with such payments. Any tax, assessment or governmental
charge imposed upon payments on this Security shall be borne by the Holder of
this Security.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature or its duly
authorized agent referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
5
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
DATED: ____________________
WELLS FARGO & COMPANY
By:_____________________________________
Its:_________________________________
[SEAL]
Attest:_________________________________
Its:_________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series
designated therein referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:______________________________________
Authorized Signature
OR
NORWEST BANK MINNESOTA, N.A.,
as Authenticating Agent for the Trustee
By:______________________________________
Authorized Signature
6
<PAGE>
[Reverse of Note]
WELLS FARGO & COMPANY
SUBORDINATED MEDIUM-TERM FLOATING RATE NOTE, SERIES B
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
General
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an indenture dated as of August 30, 1999, as amended or
supplemented from time to time (herein called the "Indenture"), between the
Company and The First National Bank of Chicago, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto, reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series of the
Securities designated as Subordinated Medium-Term Notes, Series B, of the
Company, which series is limited to an aggregate principal amount of
$7,150,000,000 or the equivalent thereof in one or more foreign or composite
currencies minus the aggregate principal amount of the Company's Medium-Term
Notes, Series A which may be issued from time to time. The Securities of this
series may mature at different times, bear interest, if any, at different rates,
be redeemable at different times or not at all, be repayable at the option of
the Holder at different times or not at all, be issued at an original issue
discount and be denominated in different currencies.
The Securities are issuable only in registered form without coupons and
will be either (a) book-entry securities represented by one or more global
securities recorded in the book-entry system maintained by the Depository or (b)
certificated securities issued to and registered in the names of, the beneficial
owners or their nominees.
The indebtedness evidenced by this Security is, to the extent and in
the manner set forth in the Indenture, subordinate and subject in right of
payment to the prior payment in full of the principal of and premium, if any,
and interest on all Senior Debt of the Company, and the Holder of this Security,
by accepting the same, agrees to and shall be bound by the provisions of the
Indenture with respect thereto.
Interest Rate Reset
The interest rate in effect from the Original Issue Date to the Initial
Interest Reset Date specified on the face hereof shall be the Initial Interest
Rate specified on the face hereof.
7
<PAGE>
Commencing with the Initial Interest Reset Date specified on the face hereof
following the Original Issue Date specified on the face hereof, the rate at
which interest on this Security is payable shall be adjusted daily, weekly,
monthly, quarterly, semi-annually or annually as specified on the face hereof
under "Interest Reset Period". Each such adjusted rate shall be applicable from
and including the Interest Reset Date to which it relates to but not including
the next succeeding Interest Reset Date or until Maturity, as the case may be.
Subject to applicable provisions of law and except as specified herein, on each
Interest Reset Date, the rate of interest on this Security shall be the rate
determined with respect to the Interest Determination Date next preceding such
Interest Reset Date in accordance with the provisions of the applicable heading
below and adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, and/or by the multiplication by the Spread
Multiplier, if any, specified on the face hereof.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, such Interest Reset Date shall be the following Business Day,
except that if the Base Rate specified above is LIBOR or EURIBOR and if such
following Business Day is in the next calendar month, such Interest Reset Date
shall be the immediately preceding Business Day.
Accrued interest shall be calculated by multiplying the principal
amount by an accrued interest factor. Such accrued interest factor shall be
computed by adding the interest factor calculated for each day in the period for
which interest is being paid. Unless otherwise specified on the face hereof, the
interest factor for each such day will be computed by dividing the interest rate
(expressed as a decimal) applicable to such day by 360, if the Base Rate is the
CD Rate, the Commercial Paper Rate, EURIBOR, the Federal Funds Rate, LIBOR or
the Prime Rate or by the actual number of days in the year, if the Base Rate is
the Treasury Rate or the CMT Rate.
Unless otherwise specified on the face hereof, all percentages
resulting from any calculation referred to herein shall be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of one percentage point rounded upward (e.g., 9.876545% (or.
09876545) being rounded to 9.87655% (or .0987655) and 9.876544% (or .09876544)
being rounded to 9.87654% (or .0987654)), and all dollar amounts used in or
resulting from any such calculation on this Security shall be rounded to the
nearest cent (with one-half cent being rounded upwards).
Notwithstanding the foregoing, the interest rate per annum hereon shall
not be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or before
each Calculation Date.
The interest rate on this Security shall in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
8
<PAGE>
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that shall become effective on the next Interest
Reset Date with respect to this Security. The Calculation Agent's determination
of any interest rate shall be final and binding in the absence of manifest
error.
A "Calculation Date", where applicable, for any Interest Determination
Date will be the earlier of:
o the tenth calendar day after that Interest Determination Date,
or, if that day is not a Business Day, the following Business
Day; or
o the Business Day before the applicable Interest Payment Date
or Maturity.
Determination of CD Rate
If the Base Rate specified on the face hereof is CD Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CD Interest Determination Date") shall
equal the rate on that date for negotiable certificates of deposit having the
Index Maturity specified on the face hereof as published by the Board of
Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication of the Board of Governors
of the Federal Reserve System, ("H.15(519)") under the heading "CDs (Secondary
Market)."
The following procedures will be followed if the CD Rate cannot be
determined as described above:
o If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate will
be the rate on the applicable CD Interest Determination Date
set forth in the daily update of H.15(519), available through
the world wide website of the Board of Governors of the
Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication (the "H.15 Daily Update"), for
the day in respect of certificates of deposit having the Index
Maturity specified on the face hereof under the caption "CDs
(secondary market)."
o If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, then the Calculation Agent will determine
the CD Rate to be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on that CD
Interest Determination Date of three leading nonbank dealers
in negotiable U.S. dollar certificates of deposit in New York
City, which may include the agents or their affiliates,
selected by the Calculation Agent, after consultation with the
Company, for negotiable certificates of deposit of major
United States money center banks of
9
<PAGE>
the highest credit standing in the market for negotiable
certificates of deposit with a remaining maturity closest to
the Index Maturity specified on the face hereof in an amount
that is representative for a single transaction in the market
at that time.
o If the dealers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the CD Rate
in effect immediately before that CD Interest Determination
Date will not change and will remain the CD Rate in effect on
that CD Interest Determination Date.
Determination of Commercial Paper Rate
If the Base Rate specified on the face hereof is Commercial Paper Rate,
the interest rate per annum determined with respect to any Interest
Determination Date specified on the face hereof (each, a "Commercial Paper
Interest Determination Date") shall equal the Money Market Yield, calculated as
described below, of the rate on that date for commercial paper having the Index
Maturity specified on the face hereof as published in H.15(519) under the
heading "Commercial Paper--Nonfinancial."
The following procedures will be followed if the Commercial Paper Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate
will be the Money Market Yield of the rate on the applicable
Commercial Paper Interest Determination Date for commercial
paper having the Index Maturity specified on the face hereof
as published in the H.15 Daily Update under the heading
"Commercial Paper--Nonfinancial."
o If by 3:00 p.m., New York City time, on that Calculation Date
that rate is not yet published in either H.15(519) or the H.15
Daily Update, then the Calculation Agent will determine the
Commercial Paper Rate to be the Money Market Yield of the
arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Commercial Paper Interest
Determination Date of three leading dealers of commercial
paper in New York City, which may include the agents or their
affiliates, selected by the Calculation Agent, after
consultation with the Company, for commercial paper having the
Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA," or the
equivalent, from a nationally recognized statistical rating
agency.
o If the dealers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the
Commercial Paper Rate in effect immediately before the
Commercial Paper Interest Determination Date will not change
and will remain
10
<PAGE>
the Commercial Paper Rate in effect on that Commercial Paper
Interest Determination Date.
"Money Market Yield" will be a yield calculated in accordance with the
following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable annual rate for commercial paper quoted on a
bank discount basis and expressed as a decimal and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
Determination of EURIBOR
If the Base Rate specified on the face hereof is EURIBOR, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "EURIBOR Interest Determination Date")
shall equal the rate for deposits in euros as sponsored, calculated and
published jointly by the European Banking Federation and ACI - The Financial
Market Association, or any company established by the joint sponsors for
purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Bridge
Telerate, Inc., or any successor service, on page 248 or any other page as may
replace page 248 on that service, which is commonly referred to as "Telerate
Page 248," as of 11:00 a.m.
(Brussels time).
The following procedures will be followed if the EURIBOR Rate cannot be
determined as described above:
o If the above rate does not appear, the Calculation Agent will
request the principal Euro-zone, as defined below, office of
each of four major banks in the Euro-zone interbank market, as
selected by the Calculation Agent, after consultation with the
Company, to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m.
(Brussels time) on the EURIBOR Interest Determination Date, to
prime banks in the Euro-zone interbank market for the Index
Maturity specified on the face hereof commencing on the
applicable EURIBOR Interest Reset Date, and in a principal
amount not less than the equivalent of U.S. $1 million in euro
that is representative of a single transaction in euro, in
that market at that time. If at least two quotations are
provided, EURIBOR will be arithmetic mean of those quotations.
o If fewer than two quotations are provided, EURIBOR will be the
arithmetic mean of the rates quoted by four major banks in the
Euro-zone, as selected by the Calculation Agent, after
consultation with the Company, at approximately 11:00 a.m.
(Brussels time), on the applicable EURIBOR Interest Reset Date
for
11
<PAGE>
loans in euro to leading European banks for a period of time
equivalent to the Index Maturity specified on the face hereof
commencing on that EURIBOR Interest Reset Date in a principal
amount not less than the equivalent of U.S. $1 million in
euro.
o If the banks selected by the Calculation Agent are not quoting
as described in the previous bullet point, the EURIBOR in
effect immediately before such EURIBOR Interest Determination
Date will not change and will remain the EURIBOR in effect on
that EURIBOR Interest Determination Date.
"Euro-zone" means the region comprised of member states of the European Union
that adopt the single currency in accordance with the treaty establishing the
European Community, as amended by the treaty on European Union.
Determination of Federal Funds Rate
If the Base Rate specified on the face hereof is Federal Funds Rate,
the interest rate per annum determined with respect to any Interest
Determination Date specified on the face hereof (each, a "Federal Funds Interest
Determination Date") shall equal the rate on that day for federal funds as
published in H.15(519) under the heading "Federal Funds (Effective)" as
displayed on Bridge Telerate, Inc. or any successor service on page 120 or any
other page as may replace the applicable page on that service ("Telerate Page
120").
The following procedures will be followed if the Federal Funds Rate
cannot be determined as described above:
o If the above rate is not published by 9:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate will be
the rate on the applicable Federal Funds Interest
Determination Date as published in the H.15 Daily Update under
the heading "Federal Funds/(Effective)."
o If that rate is not yet published in either H.15(519) or H.15
Daily Update by 3:00 p.m., New York City time, on the
Calculation Date, the Calculation Agent will determine the
Federal Funds Rate to be the arithmetic mean of the rates for
the last transaction in overnight U.S. dollar Federal Funds
arranged by each of three leading brokers of U.S. dollar
Federal Funds transactions in New York City, which may include
the agents or their affiliates, selected by the Calculation
Agent, after consultation with the Company, before 9:00 a.m.,
New York City time, on that Federal Funds Interest
Determination Date.
o If the brokers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the Federal
Funds Rate in effect immediately before that Federal Funds
Interest Determination Date will not change and will remain
the Federal Funds Rate in effect on that Federal Funds
Interest Determination Date.
12
<PAGE>
Determination of LIBOR
If the Base Rate specified on the face hereof is LIBOR, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "LIBOR Interest Determination Date") shall
be determined by the Calculation Agent by reference to the display on Bridge
Telerate Inc., or any successor service, on Page 3750, or any other page as may
replace that page on that service, for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency ("LIBOR
Telerate"). The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR will be calculated, or, if the euro is
substituted for that currency, the Index Currency will be the euro. If no
currency is specified on the face hereof the Index Currency will be U.S.
dollars.
o As of the LIBOR Interest Determination Date, LIBOR will be the
rate for deposits in the Index Currency having the Index
Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following that LIBOR
Interest Determination Date or, if pounds sterling is the
Index Currency, commencing on that LIBOR Interest
Determination Date that appears on LIBOR Telerate as of 11:00
a.m., London time, on that LIBOR Interest Determination Date.
o If no rate appears, then the Calculation Agent will request
the principal London offices of each of four major reference
banks in the London interbank market, as selected by the
Calculation Agent, after consultation with the Company, to
provide the Calculation Agent with its offered quotation for
deposits in the Index Currency for the period of the Index
Maturity specified on the face hereof commencing on the second
London Banking Day immediately following the LIBOR Interest
Determination Date, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on that LIBOR
Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency
in that market at that time. If at least two quotations are
provided, LIBOR determined on that LIBOR Interest
Determination Date will be the arithmetic mean of those
quotations.
o If fewer than two quotations are provided, LIBOR will be
determined for the applicable Interest Reset Date as the
arithmetic mean of the rates quoted at approximately 11:00
a.m., London time, or some other time specified on the face
hereof, in the applicable principal financial center for the
country of the Index Currency on that Interest Reset Date, by
three major banks in that principal financial center selected
by the Calculation Agent, after consultation with the Company,
for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in
a principal amount that is
13
<PAGE>
representative of a single transaction in that Index Currency
in that market at that time.
o If the banks so selected by the Calculation Agent are not
quoting as described in the previous bullet point, LIBOR in
effect immediately before such LIBOR Interest Determination
Date will not change and will remain the LIBOR in effect on
such LIBOR Interest Determination Date.
If LIBOR Reuters is specified on the face hereof, then LIBOR for each
LIBOR Interest Determination Date will be determined by the Calculation Agent by
reference to the display on the Reuters Monitor Money Rates Service, on the page
specified on the face hereof, or any other page on any designated successor
service, for the purpose of displaying the London interbank rates of major banks
for the applicable Index Currency ("LIBOR Reuters"), and the first bullet point
of the previous paragraph will be replaced with the following:
o As of the LIBOR Interest Determination Date, LIBOR will be the
arithmetic mean of the offered rates for deposits in the Index
Currency having the Index Maturity specified on the face
hereof, commencing on the second London Banking Day
immediately following that LIBOR Interest Determination Date,
that appear on LIBOR Reuters as of 11:00 a.m., London time, on
that LIBOR Interest Determination Date, if at least two
offered rates appear on LIBOR Reuters; provided, however, that
if LIBOR Reuters by its terms provides for only a single rate,
that single offered rate will be used.
o If fewer than two rates appear or no rates appear, as
applicable, then LIBOR shall be calculated as described in the
last three bullet points in the previous paragraph.
Determination of Prime Rate
If the Base Rate specified on the face hereof is Prime Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Prime Interest Determination Date")
shall equal the rate on such date as published in H.15(519) under the heading
"Bank Prime Loan."
The following procedures will be followed if the Prime Rate cannot be
determined as described above:
o If the rate is not published before 9:00 a.m., New York City
time, on the Calculation Date, then the Prime Rate will be the
rate on such Prime Interest Determination Date as published in
the H.15 Daily Update, under the heading "Bank Prime Loan."
14
<PAGE>
o If the rate is not published before 3:00 p.m., New York City
time, on the Calculation Date, in either H.15(519) or the H.15
Daily Update, then the Calculation Agent will determine the
Prime Rate to be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters
Screen US PRIME1 Page, as defined below, as that bank's prime
rate or base lending rate as in effect for that Prime Interest
Determination Date.
o If fewer than four rates appear on the Reuters Screen US
PRIME1 Page on that Prime Interest Determination Date, then
the Calculation Agent will determine the Prime Rate to be the
arithmetic mean of the prime rates or base lending rates
quoted on the basis of the actual number of days in the year
divided by 360, as of the close of business on that Prime
Interest Determination Date by at least three major banks in
New York City, which may include affiliates of the agents,
selected by the Calculation Agent.
o If the banks selected are not quoting as described in the
previous bullet point, the Prime Rate in effect immediately
before such Prime Interest Determination Date will not change
and will remain the Prime Rate in effect on such Prime
Interest Determination Date.
"Reuters Screen US PRIME1 Page" means the display designated as page "USPRIME1"
on the Reuters Monitor Money Rates Service, or any successor service or any
other page as may replace the USPRIME1 page on that service for the purpose of
displaying prime rates or base lending rates of major United States banks.
Determination of Treasury Rate
If the Base Rate specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date specified on the face hereof (each, a "Treasury Interest Determination
Date") shall equal the rate from the auction held on that date of direct
obligations of the United States, which are commonly referred to as "Treasury
bills," having the Index Maturity specified on the face hereof under the caption
"Investment Rate" on the display on Bridge Telerate, Inc., or any successor
service on:
o page 56, or any other page as may replace such page on such
service ("Telerate Page 56");
o page 57, or any other page as may replace such page on such
service, ("Telerate Page 57"); or,
o if not so published by 3:00 p.m., New York City time, on the
related Calculation Date, the Bond Equivalent Yield, as
defined below, of the rate for the Treasury bills as published
in the H.15(519) Daily Update, or such other recognized
15
<PAGE>
electronic source used for the purpose of displaying such
rate, under the heading "U.S. Government Securities/Treasury
Bills/Auction High."
The following procedures will be followed if the Treasury Rate cannot
be determined as described above:
o If the above rate is not published by 3:00 p.m., New York City
time, on the Calculation Date, the Treasury Rate will be the
Bond Equivalent Yield of the auction rate of the applicable
Treasury bills on that Treasury Interest Determination Date as
announced by the United States Department of the Treasury.
o In the event that the auction rate of Treasury bills having
the Index Maturity specified on the face hereof is not
published or announced as provided above by 3:00 p.m., New
York City time, on such Calculation Date, or if no auction is
held on that Treasury Interest Determination Date, then the
Calculation Agent will determine the Treasury Rate to be the
Bond Equivalent Yield of the rate on that Treasury Interest
Determination Date of Treasury bills having the Index Maturity
specified on the face hereof as published in H.15(519) under
the caption "U.S. Government Securities/Treasury
Bills/Secondary Market" or, if not yet published by 3:00 p.m.,
New York City time, on the related Calculation Date, the rate
on such Treasury Interest Determination Date of the applicable
Treasury bills as published in the H.15 Daily Update under the
caption "U.S. Government Securities/Treasury Bills/Secondary
Market." If that rate is not yet published in H.15(519) or the
H.15 Daily Update, then the Treasury Rate will be calculated
by the Calculation Agent and will be the Bond Equivalent Yield
of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 p.m., New York City time, on that
Treasury Interest Determination Date, of three primary United
States government securities dealers, which may include the
agents or their affiliates, selected by the Calculation Agent,
for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity specified on the face hereof.
o If the dealers selected by the Calculation Agent are not
quoting as described in the previous bullet point, the
Treasury Rate in effect immediately before that Treasury
Interest Determination Date will not change and will remain
the Treasury Rate in effect on such Treasury Interest
Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated as
follows:
D x N
Bond Equivalent Yield = ------------- x 100
360 - (D x M)
16
<PAGE>
where "D" refers to the applicable annual rate for the Treasury notes quoted on
a bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as
the case may be, and "M" refers to the actual number of days in the interest
period for which interest is being calculated.
Determination of CMT Rate
If the Base Rate specified on the face hereof is CMT Rate, the interest
rate per annum determined with respect to any Interest Determination Date
specified on the face hereof (each, a "CMT Interest Determination Date) shall
equal the rate displayed on the Designated CMT Telerate Page, as defined below,
under the caption "Treasury Constant Maturities . . . Federal Reserve Board
Release H.15 . . . Mondays Approximately 3:45 p.m.," under the column for the
Designated CMT Maturity Index, as defined below, for:
(i) if the Designated CMT Telerate Page is 7051, that CMT
Interest Determination Date; and
(ii) if the Designated CMT Telerate Page is 7052, the week or
the month, as applicable, ended immediately before the week in which
the related CMT Interest Determination Date occurs.
The following procedures will be used if the CMT Rate cannot be
determined as described above:
o If that rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the
related Calculation Date, then the CMT Rate will be the
treasury constant maturity rate for the Designated CMT
Maturity Index, as defined below, as published in H.15(519).
o If that rate is no longer published, or if not published by
3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate will be the treasury constant maturity
rate for the Designated CMT Maturity Index, or other United
States Treasury rate for the Designated CMT Maturity Index,
for the CMT Interest Determination Date with respect to that
Interest Reset Date as may then be published by either the
Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on
the Designated CMT Telerate Page and published in H.15(519).
o If the information described above is not provided by 3:00
p.m., New York City time, on the related Calculation Date,
then the Calculation Agent will determine the CMT Rate to be a
yield to maturity, based on the arithmetic mean of the
secondary market closing offer side prices as of approximately
3:30 p.m., New York City time, on the CMT Interest
Determination Date reported, according to
17
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their written records, by three leading primary United States
government securities dealers (each a "reference dealer") in
New York City selected by the Calculation Agent as described
in the following sentence, which may include the agents or
their affiliates. The Calculation Agent will select five
reference dealers, after consultation with the Company, and
will eliminate the highest quotation, or, in the event of
overlap, one of the highest and the lowest quotation, or, in
the event of overlap, one of the lowest, for the most recently
issued direct noncallable fixed rate obligations of the United
States, which are commonly referred to as "Treasury notes,"
with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less
than such Designated CMT Maturity Index minus one year.
o If the Calculation Agent cannot obtain three such Treasury
notes quotations, the Calculation Agent will determine the CMT
Rate to be a yield to maturity based on the arithmetic mean of
the secondary market offer side prices as of approximately
3:30 p.m., New York City time, on the CMT Interest
Determination Date of three reference dealers in New York
City, which may include the agents or their affiliates,
selected using the same method described above, for Treasury
notes with an original maturity of the number of years closest
to but not less than the Designated CMT Maturity Index and a
remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100,000,000. If
two Treasury notes with an original maturity as described
above have remaining terms to maturity equally close to the
Designated CMT Maturity Index, the Calculation Agent will
obtain quotations for the Treasury note with the shorter
remaining term to maturity.
o If three or four, but not five, of the reference dealers are
quoting as described immediately above, then the CMT Rate will
be based on the arithmetic mean of the offer prices obtained
and neither the highest nor the lowest of the quotes will be
eliminated.
o If fewer than three reference dealers selected by the
Calculation Agent are quoting as described above, the CMT Rate
in effect immediately before such CMT Interest Determination
Date will not change and will remain the CMT Rate in effect on
such CMT Interest Determination Date.
"Designated CMT Telerate Page" means the display on Bridge Telerate, Inc., or
any successor service, on the page designated on the face hereof, or any other
page as may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519). If no page is specified
on the face hereof, the Designated CMT Telerate Page will be 7052, for the most
recent week.
"Designated CMT Maturity Index" means the original period to maturity of the
U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified on
the face hereof with
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respect to which the CMT Rate will be calculated. If no maturity is specified on
the face hereof, the Designated CMT Maturity Index will be two years.
Events of Default
If an Event of Default, as defined in the Indenture, with respect to
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner and with
the effect provided in the Indenture.
Modification and Waivers; Obligation of the Company Absolute
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of all series to be affected, acting together as a class.
The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of all series at the time Outstanding
affected by certain provisions of the Indenture, acting together as a class, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with those provisions of the Indenture. Certain past defaults under
the Indenture and their consequences may be waived under the Indenture by the
Holders of a majority in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
Subject to the rights of holders of Senior Debt of the Company set
forth in this Security and the Indenture referred to above, no reference herein
to the Indenture and no provision of this Security 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 Security at the
times, place and rate, and in the coin or currency, herein prescribed, except
that in the event the Company deposits money or Eligible Instruments as provided
in Section 401 or 403 of the Indenture, such payments shall be made only from
proceeds of such money or Eligible Instruments.
Defeasance and Covenant Defeasance
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Security and (b) certain restrictive covenants and
certain Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security.
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Redemption
If so provided on the face hereof, the Company may at its option redeem
this Security in whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security shall not be less
than the minimum authorized denomination hereof) on or after the date designated
as the Initial Redemption Date on the face hereof at 100% of the unpaid
principal amount hereof or the portion thereof redeemed multiplied by a
percentage (the "Redemption Percentage"), together with accrued interest, if
any, to the Redemption Date. The Redemption Percentage shall initially be equal
to the Initial Redemption Percentage specified on the face hereof and shall
decline at each anniversary of the Initial Redemption Date by the amount of the
Annual Redemption Percentage Reduction specified on the face hereof, until the
Redemption Percentage is equal to 100%. The Company may exercise such option by
causing the Trustee to mail a notice of such redemption at least 30 but not more
than 60 days prior to the applicable Redemption Date to each Holder of the
Securities of this series to be redeemed. In the event of redemption of this
Security in part only, the Company shall issue a new Security or Securities for
the unredeemed portion hereof in the name of the Holder hereof upon the
cancellation hereof. If less than all of the Securities of this series with like
tenor and terms are to be redeemed, the Securities to be redeemed shall be
selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
Sinking Fund
Unless otherwise specified on the face hereof, this Security shall not
be entitled to any sinking fund.
Repayment
If so provided on the face hereof, this Security will be repayable
prior to the Stated Maturity Date at the option of the Holder, in whole or in
part and in increments of $1,000 (provided that any remaining principal amount
of this Security surrendered for partial repayment shall not be less than the
minimum authorized denomination hereof), on or after the date designated as an
Optional Repayment Date on the face hereof at 100% of the principal amount to be
repaid, plus accrued interest, if any, to the Repayment Date. In order for this
Security to be repaid, the Company must receive at the applicable address of the
Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Security, at
least 30 but not more than 45 days prior to an Optional Repayment Date, either
(i) this Security, with the form below entitled "Option to Elect Repayment" duly
completed, or (ii) a telegram, telex, facsimile transmission, or letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States of America setting forth (a) the name, address and telephone number of
the Holder of this Security, (b) the principal amount of this Security and the
amount of this Security to be repaid, (c) a statement that the option to elect
repayment is being exercised thereby, and (d) a guarantee stating that the
Company will receive this Security, with the form below entitled "Option to
Elect Repayment" duly completed, not
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later than five Business Days after the date of such telegram, telex, facsimile
transmission or letter (and this Security and form duly completed are received
by the Company by such fifth Business Day). Any such election shall be
irrevocable. The address to which such deliveries to are to be made is Sixth and
Marquette, Minneapolis, Minnesota 55479 (or, at such other place as the Company
shall notify the Holders of the Securities of this series). All questions as to
the validity, eligibility (including time of receipt) and acceptance of any
Security for repayment will be determined by the Company, whose determination
will be final and binding. Upon any partial repayment, this Security shall be
cancelled and a new Security or Securities for the remaining principal amount
hereof shall be issued in the name of the Holder of this Security.
Authorized Denominations
Unless otherwise provided on the face hereof, this Security is issuable
only in registered form without coupons in denominations of $1,000 or any amount
in excess thereof which is an integral multiple of $1,000.
Registration of Transfer
Upon due presentment for registration of transfer of this Security at
the corporate trust office of the Trustee in the City of New York or at the
corporate trust office of the Paying Agent in Minneapolis, Minnesota a new
Security or Securities of this series in authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange herefor,
as provided in the Indenture and subject to the limitations provided therein and
to the limitations described below, without charge except for any tax or other
governmental charge imposed in connection therewith.
If this Security is a Global Security (as specified above), this
Security is exchangeable for definitive Securities in registered form only if
(x) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for this Security or if at any time the Depositary ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and the Company does not appoint a successor Depositary within 90 days
after receiving such notice or after becoming aware that the Depositary has
ceased to be so registered as a clearing agency, (y) the Company in its sole
discretion determines that this Security shall be exchangeable for definitive
Securities in registered form and notifies the Trustee thereof or (z) an Event
of Default with respect to the Securities represented hereby has occurred and is
continuing. If this Security is exchangeable pursuant to the preceding sentence,
it shall be exchangeable for definitive Securities in registered form, bearing
interest at the same rate, having the same date of issuance, redemption
provisions, Stated Maturity Date and other terms and of authorized denominations
aggregating a like amount.
If this Security is a Global Security (as specified above), this
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor of the Depositary or a nominee of such successor. Except
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as provided above, owners of beneficial interests in this Global Security will
not be entitled to receive physical delivery of Securities in definitive form
and will not be considered the Holders hereof for any purpose under the
Indenture.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
No Personal Recourse
No recourse shall be had for the payment of the principal of or the
interest on this Security, 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 or
director, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, 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 part of the consideration for the
issuance hereof, expressly waived and released.
Defined Terms
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Governing Law
This Security shall be governed by and construed in accordance with the
law of the State of New York, without regard to principles of conflicts of laws.
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--------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS SECURITY IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
--------------------
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Security (or the portion thereof specified below), pursuant
to its terms, on the Optional Repayment Date first occurring after the date of
receipt by the Company of the within Security as specified below (the "Repayment
Date"), at a Repayment Price equal to 100% of the principal amount thereof,
together with interest to the Repayment Date, to the undersigned,
_____________________________, at ______________________________________ (please
print or typewrite name and address of the undersigned).
For this option to elect repayment to be effective, the Company must
receive, at the applicable address of the Paying Agent set forth in the within
Security or at such other place or places of which the Company shall from time
to time notify the Holder of the within Security, at least 30 but not more than
45 days prior to an Optional Repayment Date, either (i) this Security, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or a trust company in the United States of America setting forth (a) the
name, address and telephone number of the Holder of the Security, (b) the
principal amount of the Security and the amount of the Security to be repaid,
(c) a statement that the option to elect repayment is being irrevocably
exercised thereby, and (d) a guarantee stating that the Security to be repaid
with the form entitled "Option to Elect Repayment" on the addendum to the
Security duly completed will be received by the Company not later than five
Business Days after the date of such telegram, telex, facsimile transmission or
letter (and such Security and form duly completed are received by the Company by
such fifth Business Day).
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the Holder elects to have repaid: $__________.
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If less than the entire principal amount of the within Security is to
be repaid, specify the denomination or denominations (which shall be $1,000 or
an integral multiple thereof) of the Security or Securities to be issued to the
Holder for the portion of the within Securities not being repaid (in the absence
of any specification, one such Security will be issued for the portion not being
repaid): $______________.
Date: _________________ ____________________________________________
Notice: The signature to this Option to
Elect Repayment must correspond with the
name as written upon page 2 of the within
Security in every particular without
alteration or enlargement or any change
whatsoever.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT -- _____________________ Custodian _________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
- --------------------------------
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- ---------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
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the within Security of WELLS FARGO & COMPANY and all rights thereunder and does
hereby irrevocably constitute and appoint __________________ attorney to
transfer the said Security on the books of the within-named Company, with full
power of substitution in the premises.
Dated: _________________________
_________________________
Signature Guaranteed: _________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular, without
alteration or enlargement or any change whatsoever.
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