Exhibit 1(a)
BankAmerica Capital ___
____% Cumulative [Quarterly] [Semi-Annual] Income Preferred Securities,
Series ___
(liquidation amount $___ per preferred security)
guaranteed to the extent set forth in the Guarantee by
BankAmerica Corporation
Underwriting Agreement
----------------------
____________, 199_
[Names of Co-Representatives]
As representatives of the several Underwriters
named in Schedule I hereto,
c/o ______________,
[Address].
Ladies and Gentlemen:
BankAmerica Capital ___, a business trust created under the Business
Trust Act of the State of Delaware (the "Delaware Business Trust Act") (the
"Trust"), and BankAmerica Corporation, a Delaware corporation, as depositor of
the Trust and as guarantor (the "Guarantor"), propose, subject to the terms and
conditions stated herein, that the Trust issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of ________
preferred securities (the "Securities") of ____% Cumulative [Quarterly] [Semi-
Annual] Income Preferred Securities, Series ___ (liquidation amount $____ per
preferred security) representing undivided beneficial interests in the assets of
the Trust, guaranteed by the Guarantor as to the payment of distributions, and
as to payments on liquidation or redemption, to the extent set forth in a
guarantee agreement (the "Guarantee") between the Guarantor and Bankers Trust
Company, as trustee (the "Guarantee Trustee"). The proceeds of the sale of the
Securities and an aggregate of _______ of its Common Securities (liquidation
amount [$1,000] [$25] per common security) (the "Common Securities") by the
Trust are to be invested in Junior Subordinated Deferrable Interest Debentures,
Series ___ (the "Subordinated Debentures") of the Guarantor, to be issued
pursuant to an Indenture (the "Indenture") between the Guarantor and Bankers
Trust Company, as Trustee (the "Debenture Trustee").
1. The Guarantor and the Trust jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(a) The Guarantor and the Trust have filed with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), a registration
statement (File No. 333-15559 and 000-00000-00 through -08) including a
prospectus relating to the Securities, the Guarantee and the
Subordinated Debentures (collectively, the "Registered Securities") and
such registration statement has become effective; the term
"Registration Statement" means the registration statement as amended to
the date of this Agreement; the term "Basic Prospectus" means the
prospectus included in the Registration Statement but does not include
the forms
of prospectus supplement included in the Registration Statement; the
term "Preliminary Prospectus" means the Basic Prospectus together with
a preliminary prospectus supplement specifically relating to the
Registered Securities; the Guarantor and the Trust will file with the
Commission a prospectus supplement specifically relating to the
Registered Securities pursuant to Rule 424 under the Securities Act
(the "Prospectus Supplement"), together, if required, with the Basic
Prospectus (collectively, the "Prospectus"); as used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include in each case the material, if
any, incorporated by reference therein and the terms "amend",
"amendment" and "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the
effective date of the Registration Statement, or the date of any
Preliminary Prospectus or the Prospectus, as the case may be, and
deemed to be incorporated therein by reference;
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the rules and regulations thereunder, (ii) each part
of the Registration Statement (including the documents incorporated by
reference therein), when such part became effective or was filed, as
the case may be, complied in all material respects with the Securities
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the respective rules and regulations thereunder and did not contain any
untrue statements of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement at the date of
the Prospectus Supplement and at the Time of Delivery will meet the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and will comply in all other material respects with said rule, (iv)
each Preliminary Prospectus, if any, filed pursuant to Rule 424 under
the Securities Act will comply when so filed in all material respects
with the Securities Act, and the rules and regulations thereunder, (v)
the Registration Statement, the Prospectus, the applicable Amended and
Restated Trust Agreement (the "Trust Agreement") between the Guarantor
and the trustees named therein (the "Trustees") relating to the Trust,
the Guarantee and the Indenture comply and, as amended or supplemented,
will comply in all material respects with the Securities Act and the
Trust Indenture Act and the respective rules and regulations
thereunder, (vi) at the date of the Prospectus Supplement, at the date
of any further amendment to the Registration Statement or supplement to
the Prospectus and at the Time of Delivery, the Registration Statement
and the Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that
this representation and warranty does not apply to (a) that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act
of the Trustees and the Guarantee Trustee or (b) statements in or
omissions from any such documents based upon information furnished to
the Guarantor or the Trust in writing by or in any document prepared by
any Underwriter or by the Trustees expressly for use therein, (vii) the
Guarantor and the Trust have furnished to you such information,
financial and other, regarding the Guarantor and the Trust as is
expected to be included in the Prospectus Supplement and (viii) the
Company has complied and will comply with the provisions of that
certain Florida act relating to the
2
disclosure of doing business with Cuba codified as Section 517.075 of
the Florida statutes and the rules and regulations thereunder or is
exempt therefrom;
(c) Except as set forth or contemplated in the Prospectus, there
has been no material adverse change in the condition (financial or
otherwise), earnings, business or properties of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, since the date of the
most recent financial statements included or incorporated in the
Prospectus, as amended or supplemented as of the Time of Delivery;
(d) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority to own its properties and
conduct its business as described in the Prospectus, and the Trust has
conducted no business to date other than as contemplated by this
Agreement, and it will conduct no business in the future that would be
inconsistent with the Trust Agreement and the description of the Trust
set forth in the Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by the Trust
Agreement; the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and the
Trust Agreement and described in the Prospectus; based on expected
operations and current law, the Trust is not and will not be classified
as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature;
(e) The Securities have been duly and validly authorized by the
Trust, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform to the description of the Securities contained
in the Prospectus; the Trust Agreement, the Indenture and the Guarantee
have been duly qualified under the Trust Indenture Act; the issuance of
the Securities is not subject to preemptive or other similar rights;
the Securities will have the rights set forth in the Trust Agreement,
and the terms of the Securities are valid and binding on the Trust; the
holders of the Securities (the "Securityholders") will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation
Law of the State of Delaware;
(f) The Common Securities of the Trust have been duly and
validly authorized by the Trust and upon delivery by the Trust to the
Guarantor against payment therefor as described in the Prospectus, will
be duly and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform in all
material respects to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Time of Delivery, all of
the issued and outstanding Common Securities of the Trust will be
directly owned by the Guarantor free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(g) The Guarantee, the Subordinated Debentures, the Trust
Agreement, the Indenture
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and the Agreement as to Expenses and Liabilities between the Guarantor
and the Trust (the "Expense Agreement") (the Guarantee, the
Subordinated Debentures, the Trust Agreement, the Indenture and the
Expense Agreement being collectively referred to as the "Guarantor
Agreements") have each been duly authorized and when validly executed
and delivered by the Guarantor and, in the case of the Guarantee, by
the Guarantee Trustee, in the case of the Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Debenture Trustee,
will constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is sought in a proceeding
at law or in equity); the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Guarantor Agreements will conform to
the descriptions thereof in the Prospectus;
(h) Prior to the date hereof, neither the Guarantor nor any of
its affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Guarantor in connection with the offering of the Securities; and
(i) The Trust is not, and after giving effect to the offering
and sale of the Securities will not be, an "investment company", or an
entity "controlled" by an "investment company", as such terms are
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act").
2. Subject to the terms and conditions herein set forth, the Trust and
the Guarantor agree that the Trust shall issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $___ per Security, the number of
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
issued by the Trust to purchase the Subordinated Debentures of the Guarantor,
the Guarantor hereby agrees to pay at the Time of Delivery to
____________________, for the accounts of the several Underwriters, an amount
equal to $___ per Security for the Securities to be delivered at the Time of
Delivery. Alternatively, as a matter of convenience, ____________________ may
deduct such amount from the purchase price of the Securities and in such event
the Guarantor shall be deemed to have paid the same.
3. Upon the authorization by you of the release of the Securities,
the several Underwriters propose to offer the Securities for sale upon the terms
and conditions set forth in the Prospectus. [In connection with such offering,
each underwriter severally agrees that it will comply with Rule 2720 of the
Rules of Conduct of the National Association of Securities Dealers, Inc. and
will not execute a transaction in the Securities in a discretionary account
without the prior written specific approval of such Underwriter's customer.]
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ____________________ may request upon at least forty-eight hours' prior
notice to the Trust, shall be delivered by or on behalf of the Trust to
____________________, through the facilities of the Depository Trust Company,
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the
4
purchase price therefor by certified or official bank check or checks or
fedwire, payable to the order of the Trust in Federal (same day) funds. The
Trust will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be 10:30 a.m., New York City time, on ____________, 199__ or such
other time and date as __________ and the Trust may agree upon in writing. Such
time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(j) hereof, will be delivered at such time and
date at the offices of the Guarantor, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000 (the "Closing Location"), and the Securities will be delivered
at the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 4:00 p.m., New York City time, on the New York Business
Day next preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Guarantor and the Trust jointly and severally agree with
each of the Underwriters:
(a) The Guarantor and the Trust will cause the Prospectus
Supplement and, if required, the Basic Prospectus to be filed pursuant
to Rule 424 under the Securities Act and, prior to the termination of
the offering of the Securities, will promptly advise you (i) when any
amendment to the Registration Statement shall have become effective or
any further supplement to the Prospectus shall have been filed, (ii) of
any request by the Commission for any amendment of the Registration
Statement or further supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Guarantor or the Trust of any notification with
respect to the suspension of the qualification of the Registered
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. Prior to the
termination of the offering of the Securities, neither the Guarantor
nor the Trust will file any amendment to the Registration Statement or
any further supplement to the Prospectus unless the Guarantor or the
Trust has furnished you a copy for review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. The Guarantor and the Trust will each use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities or the Subordinated
Debentures issuable upon exchange of the Securities, for offering and
sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the
5
Securities, provided that in connection therewith neither the Guarantor
nor the Trust shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as you may from time to time reasonably request, and,
if at any time when a prospectus relating to the Securities is required
to be delivered under the Securities Act, any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to prepare and file such document and furnish
without charge to each Underwriter as many copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders and to
you as soon as practicable, but in any event not later than 45 days
after the end of the 12-month period beginning at the end of the fiscal
quarter of the Guarantor during which the filing of the Prospectus
pursuant to Rule 424 under the Securities Act first occurs (except not
later than 90 days if such filing date is in the Guarantor's last
fiscal quarter), an earnings statement of the Guarantor and its
consolidated subsidiaries which will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act;
(e) During the period beginning from the date hereof and
continuing until (but not including) ___________, ____, not to offer,
sell contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Guarantor, the Trust or any other
trust the common securities of which are held by the Guarantor that are
substantially similar to the Securities or any other beneficial
interest in the assets of the Trust without your prior written consent;
(f) Not to have the Trust be or become, at any time prior to the
expiration of three years after the Time of Delivery, an open-end
investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act;
(g) To issue the Guarantee and the Subordinated Debentures
concurrently with the issue and sale of the Securities as contemplated
herein; and
[(h) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange].
6. The Guarantor and the Trust jointly and severally covenant and
agree with the several
6
Underwriters that the Guarantor and the Trust will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Guarantor's or the
Trust's counsel and accountants in connection with the registration of the
Registered Securities under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all expenses in connection with the qualification
of the Securities and the Subordinated Debentures issuable upon exchange of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iii) any fees charged by
securities rating services for rating the Securities; (iv) all fees and expenses
in connection with listing the Securities on the New York Stock Exchange, the
filing fees incident to, and the fees and disbursements of counsel for the
Guarantor and the Trust in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities (v) the cost of preparing the Securities and the Subordinated
Debentures; (vi) the fees and expenses of the Trustees, the Guarantee Trustee
and the Debenture Trustee and any agent of the Trustees, the Guarantee Trustee
and the Debenture Trustee and the fees and disbursements of counsel for the
Trustees in connection with the Trust Agreement and the Securities, counsel for
the Guarantee Trustee in connection with the Guarantee and counsel for the
Debenture Trustee in connection with the Indenture and the Subordinated
Debentures; and (vii) all other costs and expenses incident to the performance
of their obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters to purchase the Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Guarantor and the Trust contained herein as of the date hereof and the Time
of Delivery, to the accuracy of the statements of the Guarantor and the Trust
made in any certificates pursuant to the provisions hereof, to the performance
by each of the Guarantor and the Trust of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall have
been instituted or threatened.
(b) You shall have received at the Time of Delivery the opinion of counsel
for the Guarantor and the Trust acceptable to you, dated the Time of
Delivery, to the effect that:
7
(i) the Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and corporate authority to own its properties and
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;
(ii) Bank of America National Trust and Savings Association (the
"Bank") holds a valid Certificate of Authority from the Comptroller of the
Currency of the United States of America to do business as a national banking
association under the laws of the United States and has full corporate power
and authority to own its properties and conduct its business as described in
the Registration Statement or Prospectus; and all the outstanding shares of
capital stock of the Bank have been duly and validly authorized and issued,
are fully paid and (except as provided in 12 U.S.C. (S) 55) nonassessable,
and are directly owned by the Guarantor free and clear of liens and
encumbrances;
(iii) to the best knowledge of such counsel, (a) there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Guarantor or any of its subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Prospectus, and (b) there is no franchise, contract or other document which
is known to such counsel of a character required to be described in the
Registration Statement or Prospectus, which is not described as required;
(iv) the Registration Statement has become effective under the
Securities Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened; and the
Registration Statement, the Prospectus and each amendment thereof or
supplement thereto and each document incorporated by reference therein (other
than the Statements of Eligibility and Qualification (Forms T-1) under the
Trust Indenture Act of the trustees named therein and the financial
statements, schedules and other financial and statistical information
contained or incorporated therein, or that should have been so contained or
incorporated, as to which such counsel need express no opinion), as of their
respective effective or issue dates, complied as to form in all material
respects with the applicable requirements of the Securities Act and the
Exchange Act and the respective rules thereunder (in passing on the form of
such Registration Statement, counsel may assume the correctness and
completeness of the statements made therein)
(v) this Agreement has been duly authorized, executed and delivered
by the Guarantor and the Trust;
(vi) the issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of the
provisions of this Agreement, the execution, delivery and performance by the
Guarantor of the Guarantor Agreements and the consummation of the
transactions herein and therein contemplated will not conflict with, result
in a breach of, or constitute a default under the certificate of
incorporation or by-laws of the
8
Guarantor or, to the best knowledge of such counsel, any indenture or other
agreement or instrument to which the Guarantor or the Bank is a party or
bound, or any order or regulation of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Guarantor or the Bank which in the case of any indenture, agreement,
instrument or order, would have a material adverse effect on the holders of
the Securities or the financial condition, earnings, business or properties
of the Guarantor and its subsidiaries, taken as one enterprise;
(vii) the Guarantor Agreements have each been duly authorized,
executed and delivered by the Guarantor and/or the Trust, as the case may be,
and constitute valid and legally binding obligations of the Guarantor and/or
the Trust, as the case may be, enforceable in accordance with their
respective terms, subject to qualifications to be set forth in the opinion
delivered at the Time of Delivery which shall be acceptable to you; the
Subordinated Debentures are entitled to the benefits provided by the
Indenture; the Trust Agreement, the Indenture and the Guarantee have been
duly qualified under the Trust Indenture Act;
(viii) the Trust is not, and after giving effect to the offering
and sale of the Securities will not be, an "investment company", or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act; and
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required of the Guarantor for the consummation
of the transactions contemplated in this Agreement or any of the Guarantor
Agreements, except the registration under the Securities Act and the Exchange
Act of the Registered Securities and the Securities, respectively, the
qualification of the Trust Agreement, the Indenture and the Guarantee under
the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters.
In addition, such counsel shall state that nothing has come to the attention
of such counsel to cause such counsel to believe that the Registration
Statement, or any amendment thereof, at the time it became effective contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of this Agreement and as of
the Time of Delivery contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need not make any comment
with respect to the accuracy, completeness or fairness of the financial
statements, schedules and other financial and statistical information contained
therein or incorporated therein, or that should have been so contained or
incorporated, or with respect to the Statements of Eligibility and Qualification
of the trustees named in the Registration Statement on their Forms T-1).
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of California
or the United States, to the extent such counsel shall deem proper and specify
in such opinion, upon the opinion of other counsel of good
9
standing whom such counsel believes to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Guarantor
and public officials.
(c) You shall have received at the Time of Delivery the opinion of
Xxxxxxxx & Xxxxxxxx, counsel for the Underwriters (or other counsel for the
Underwriters acceptable to you), dated the Time of Delivery, with respect to
such matters as you may reasonably require, and the Guarantor and the Trust
shall have furnished to such counsel such documents as they request for the
purposes of enabling them to pass upon such matters.
(d) The Guarantor and the Trust shall have furnished to you certificates
of the Guarantor and the Trust, signed, in the case of the Guarantor, by the
Chairman of the Board, the Chief Executive Officer, President, a Vice
Chairman of the Board, a Vice Chairman or the Chief Financial Officer of the
Guarantor and the Treasurer or an Assistant Treasurer of the Guarantor (or,
in either such case, another officer or officers acceptable to you), and in
the case of the Trust, by an Administrative Trustee , dated the Time of
Delivery, to the effect that the signatories of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Guarantor and the
Trust in this Agreement are true and correct in all material respects on and
as at the Time of Delivery with the same effect as if made at the Time of
Delivery and each of the Guarantor and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Guarantor's or the Trust's knowledge, as the case may
be, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change, nor
any presently known and existing development that the Guarantor or the Trust,
as the case may be, expects to result in a material adverse change, in the
financial condition, earnings, business or properties of the Guarantor and
its subsidiaries considered as one enterprise or the Trust, as the case may
be, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus.
(e) You shall have received at the Time of Delivery a letter from Xxxxx
& Xxxxx, independent public accountants (or other independent public
accountants acceptable to you), dated the Time of Delivery, in form and
substance satisfactory to you containing statements and information of the
type ordinarily included in accountants "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference in the Registration Statement and
the Prospectus.
10
(f) There shall not have been any change or decrease specified in the
letter referred to in paragraph (e) of this Section 7 or, subsequent to the
date of this Agreement, there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Guarantor and its subsidiaries or the Trust, as the case
may be, the effect of which, in any case referred to in this paragraph (f),
is, in your judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery or offering of the Securities as
contemplated by the Prospectus.
(g) You shall have received at the Time of Delivery the opinion of
Xxxxxxxx, Xxxxxx & Finger, Delaware Counsel of the Trust, dated the Time of
Delivery, to the effect that:
(i) The Trust has been duly created and is validly existing as a
business trust in good standing under the Delaware Business Trust Act and,
under the Trust Agreement and the Delaware Business Trust Act, has the trust
power and authority to own its properties and conduct its business, all as
described in the Prospectus, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of the
Trust as a business trust have been made;
(ii) The Trust Agreement constitutes a valid and binding obligation
of the Guarantor and the Trustees, and is enforceable against the Guarantor
and the Trustees, in accordance with its terms and the terms of the
Securities as set forth in the Trust Agreement are valid and binding
obligations of the Trust in accordance with the terms of the Trust Agreement,
all subject to the effect upon the Trust Agreement of (A) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (B) principles of equity,
including applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (C) the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution;
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, the Trust has the trust power and authority to (a) execute and deliver
this Agreement and to perform its obligations under this Agreement, and (b)
issue and perform its obligations under the Securities and the Common
Securities;
(iv) Under the Trust Agreement and the Delaware Business Trust Act,
the execution and delivery by the Trust of this Agreement and the performance
by the Trust of its obligations thereunder have been duly authorized by all
necessary action on the part of the Trust;
(v) The Securities have been duly and validly authorized by the
Trust Agreement, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust; under the Trust Agreement
and the Delaware Business Trust Act, the issuance of the Securities is not
subject to preemptive or other similar rights; the Securities will have the
rights set forth in the Trust Agreement; the Securityholders, as beneficial
owners of the Trust, will be entitled to the same limitation of
11
personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the Securityholders may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity and/or
security in connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities Certificates (as defined
in the Trust Agreement) and the issuance of replacement Preferred Securities
Certificates and (b) provide security and indemnity in connection with
requests of or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust Agreement;
(vi) The Common Securities of the Trust have been duly and validly
authorized by the Trust Agreement; under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Common Securities is not subject to
preemptive or other similar rights;
(vii) The issue and sale of the Securities and the Common
Securities by the Trust, the execution and delivery of this Agreement by the
Trust, the compliance by the Trust with all of the provisions of the
Securities, the Trust Agreement and this Agreement, the purchase by the Trust
of the Subordinated Debentures and the consummation of the transactions
herein and therein contemplated do not violate (A) the Trust Agreement or the
Certificate of Trust of the Trust, or (B) any applicable Delaware law, rule
or regulation;
(viii) No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is required to be
obtained by the Trust in connection with the issuance and sale of the
Securities and the Common Securities; and
(ix) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities
(other than having a Delaware trustee as required by the Delaware Business
Trust Act and filing documents with the Delaware Secretary of State) or
employees in the State of Delaware and that the Trust is treated as a grantor
trust for federal income tax purposes, the Securityholders (other than those
holders of the Securities who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust, and the
Trust will not be liable for any income tax imposed by the State of Delaware.
(h) Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, tax counsel for the Guarantor
and the Trust, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance satisfactory to you, to the effect
that such firm confirms its opinion set forth in the Prospectus Supplement
under the caption "Certain Federal Income Tax Consequences."
(i) Prior to the Time of Delivery, the Guarantor and the Trust shall
have furnished to you such further information, certificates and documents as
you may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and your counsel, this Agreement and all obligations of you
hereunder may
12
be cancelled at, or at any time prior to, the Time of Delivery by you. Notice
of such cancellation shall be given to the Guarantor and the Trust in writing or
by telephone or telegraph confirmed in writing.
7A. This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Guarantor and the Trust prior to delivery of
and payment for the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, (ii) a commercial banking moratorium shall have been declared by either
Federal or New York or California State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the United States or international markets is
such as to make it, in your reasonable judgment, impracticable to market the
Securities or enforce contracts for the sale of the Securities.
[7B. The obligations of the Guarantor to sell the Securities to the
Underwriters shall be subject to the condition that you, on behalf of the
several Underwriters, shall have delivered to the New York Stock Exchange such
letter as the New York Stock Exchange may require in connection with the listing
of the Securities to the effect that the Underwriter will sell lots of 100 or
more Securities to a minimum of 400 beneficial holders.]
8. (a) The Guarantor and the Trust jointly and severally agree to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
-------- -------
(i) neither the Guarantor nor the Trust will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Guarantor or the Trust by or on behalf of any
Underwriter through you specifically for use in connection with the preparation
thereof, or the Statements of Eligibility and Qualification (Forms T-1) under
the Trust Indenture Act of any of the trustees named therein, and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof, if such person did not receive a
copy of the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Guarantor or the Trust
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Guarantor and the Trust, each of its directors or administrative trustees, as
the case may be, each of the Guarantor's officers who signs the Registration
Statement, and each person who controls the Guarantor or the Trust within the
meaning of either the Securities Act or the Exchange Act, to the
13
same extent as the foregoing indemnity from the Guarantor and the Trust to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Guarantor or the Trust by or on behalf of such
Underwriter through you specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided,
--------
however, if the defendants in any such action include both the indemnified party
-------
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by you in the case of subparagraph (a), representing
the indemnified parties who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Guarantor and the Trust and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) to which the Guarantor or the Trust
and one or more of the Underwriters may be subject in such proportion so that
the Underwriters are responsible for that portion represented by the percentage
that the aggregate underwriting discount or commission appearing on the cover
page of the Prospectus Supplement bears to the aggregate public offering price
appearing thereon and the Guarantor and the Trust are jointly and severally
responsible for the balance; provided, however, that
-------- -------
14
(y) in no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of the Securities Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Guarantor or the Trust within the meaning of either the
Securities Act or the Exchange Act, each officer of the Guarantor who shall have
signed the Registration Statement and each director of the Guarantor or each
Administrative Trustee of the Trust shall have the same rights to contribution
as the Guarantor and the Trust, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d). This notice requirement shall be deemed satisfied by the
delivery of the notice contemplated by the first sentence of subparagraph (c) of
this Section 8.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Securities, then the
Guarantor and the Trust shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Guarantor or the Trust that you
have so arranged for the purchase of such Securities, or the Guarantor and the
Trust notify you that they have so arranged for the purchase of such Securities,
you or the Guarantor and the Trust shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Guarantor and the
Trust jointly and severally agree to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriters" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor
and the Trust as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-tenth of the aggregate
number of all the Securities, then the Guarantor and the Trust shall have the
right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based
on the number of Securities which such Underwriter agreed to purchase hereunder)
of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
15
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor
and the Trust as provided in subsection (a) above, the aggregate number of
Securities which remains unpurchased exceeds one-tenth of the aggregate number
of all the Securities, or if the Guarantor and the Trust shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Guarantor and the Trust, except for the expenses
to be borne by the Guarantor and the Trust and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Guarantor and the Trust and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Guarantor and the Trust, or any officer or director or controlling person of the
Guarantor or the Trust, and shall survive delivery of and payment for the
Securities.
11. If the sale of the Securities provided for in this Agreement is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 or 7A hereof is not satisfied or because of any refusal,
inability or failure on the part of the Guarantor or the Trust to perform any
agreement in this Agreement or comply with any provision in this Agreement other
than by reason of a default by any of the Underwriters, the Guarantor and the
Trust will jointly and severally reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with the proposed purchase and sale of the Securities and shall have
no further obligations to the Underwriters with respect thereto. In no event
shall the Guarantor or the Trust be liable to the Underwriters for loss of
anticipated profits from the transactions contemplated by this Agreement.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ____________________ on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of
____________________, ______________________________________, Attention:
_______________________; and if to the Guarantor or the Trust shall be delivered
or sent by mail or facsimile transmission to the address of the Guarantor set
forth in the Prospectus, Attention: Secretary or Administrative Trustee,
respectively; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such
16
Questionnaire, which address will be supplied to the Guarantor and the Trust by
you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Guarantor and the Trust and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Guarantor, the
administrative trustees of the Trust and each person who controls the Guarantor
or the Trust or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
17
If the foregoing is in accordance with your understanding, please sign and
return to us ___ counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the
Guarantor and the Trust. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Guarantor for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
BankAmerica Capital
-------
By: BankAmerica Corporation, as Depositor
By:
-------------------------------
Name:
Title:
BankAmerica Corporation
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
--------------------------------
( )
---------------------
On behalf of each of the Underwriters
18
SCHEDULE I
Number
of
Securities
to be
Underwriter Purchased
---------------- ---------
Total.......................................
19
