BANKAMERICA CORPORATION
Medium-Term Notes
Due 9 Months or more from Date of Issue
MASTER UNITED STATES DISTRIBUTION AGREEMENT
November 16, 1998
To the Agents listed on
Exhibit A hereto and to
each additional person
that shall become an Agent
as provided in Section 1(f)
of this Agreement.
Dear Sirs:
BankAmerica Corporation, a Delaware corporation and the
successor by merger to NationsBank Corporation (the
"Corporation"), has authorized and proposes to issue and sell
from time to time in the manner contemplated by this Agreement
its Senior Medium-Term Notes, Series H (the "Senior Notes") and
its Subordinated Medium-Term Notes, Series H (the "Subordinated
Notes," and together with the Senior Notes, the "Notes"). The
Senior Notes are to be issued pursuant to an Indenture dated as
of January 1, 1995 between NationsBank Corporation and U.S. Bank
Trust National Association (the "Senior Trustee"), as successor
trustee to BankAmerica National Trust Company, as supplemented by
a First Supplemental Indenture dated as of September 18, 1998
among NationsBank Corporation, NationsBank (DE) Corporation and
the Senior Trustee (collectively, the "Senior Indenture"). The
Subordinated Notes are to be issued pursuant to an Indenture
dated as of January 1, 1995 between NationsBank Corporation and
The Bank of New York (the "Subordinated Trustee"), as trustee, as
supplemented by a First Supplemental Indenture dated as of August
28, 1998 among NationsBank Corporation, NationsBank (DE)
Corporation and the Subordinated Trustee (collectively, the
"Subordinated Indenture"). The Senior Trustee and the
Subordinated Trustee are collectively referred to herein as the
"Trustees," and the Senior Indenture and the Subordinated
Indenture are collectively referred to herein as the
"Indentures."
The Notes are unsecured debt securities which have been
registered under the Securities Act of 1933, as amended (the
"1933 Act"), on Form S-3 with the Securities and Exchange
Commission (the "SEC") $5,000,000,000 under Registration
No. 333-51367. The registration statement has been declared effective by
the SEC, and the Trustees have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such
registration statement (and any further registration statement
which may be filed by the Corporation 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 relating to the offer and sale of the
Corporation's debt securities constituting a part thereof, as
supplemented by a prospectus supplement dated on or about the
date hereof relating to the Notes, including all documents
incorporated therein by reference, as from time to time amended
or supplemented by the filing of documents pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or
the 1933 Act or otherwise, are referred to collectively herein as
the "Registration Statement" and the "Prospectus," respectively,
except that if any revised prospectus shall be provided to the
Agents by the Corporation for use in connection with the offering
of the Notes which is not required to be filed by the Corporation
pursuant to Rule 424(b) or Rule 434 of the rules and regulations
of the SEC under the 1933 Act (the "1933 Act Regulations"), the
term "Prospectus" shall refer to such revised prospectus from and
after the time it is first provided to the Agent for such use.
The Corporation confirms its agreement with each of you
(individually, an "Agent" and collectively, the "Agents") with
respect to the issue and sale from time to time by the
Corporation of the Notes as follows:
SECTION 1. Appointment of Agents.
(a) Appointment. Subject to the terms and conditions
stated herein, the Corporation hereby appoints each of you as
Agent in connection with the offer and sale of the Notes.
Notwithstanding the foregoing or any other provision herein to
the contrary, the Corporation reserves the right to sell Notes,
at any time, on its own behalf to any unsolicited purchaser,
whether directly to such purchaser or through an agent for such
purchaser. Upon the sale of any Notes to an unsolicited
purchaser, no Agent named herein shall be entitled to any
commission pursuant to this Agreement.
(b) Solicitations as Agent. Subject to the terms and
conditions set forth herein, each Agent agrees, as agent of the
Company, to use its reasonable best efforts when requested by the
Company to solicit offers to purchase the Notes upon the terms
and conditions set forth in the Prospectus and the administrative
procedures with respect to the sale of Notes as may be agreed
upon from time to time between the Agents and the Corporation
(the "Procedures"). Initial Procedures dated November 16, 1998
shall remain in effect until changed in writing signed by the
Agents and the Corporation. The Agents and the Corporation agree
to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
Notwithstanding any provision herein to the contrary, the
Corporation reserves the right, in its sole discretion, to
suspend solicitation of purchases of the Notes through the
Agents, as agent, commencing at any time for any period of time
or permanently. The Corporation will timely deliver notice to
the Agents of its decision to suspend solicitations. Upon
receipt of instructions from the Corporation, the Agents will
forthwith suspend solicitation of purchases of the Notes until
such time as the Corporation has advised the Agents that such
solicitation may be resumed.
Each Agent will communicate to the Corporation, orally, each
offer to purchase Notes solicited by such Agent on an agency
basis, other than those offers rejected by the Agent. The Agent
shall have the right, in its discretion reasonably exercised, to
reject any proposed purchase of Notes by persons solicited by the
Agent, as a whole or in part, and any such rejection shall not be
deemed a breach of the Agent's agreement contained herein. The
Corporation may accept or reject any proposed purchase of the
Notes, in whole or in part, and any such rejection shall not be
deemed a breach of the Corporation's agreement herein.
All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed to by the
Corporation and such Agent. The purchase price, interest rate,
maturity date and other terms of the Notes (as applicable)
specified in Exhibit B hereto shall be agreed upon by the
Corporation and such Agent and set forth in a pricing supplement
to the Prospectus (a "Pricing Supplement") to be prepared
following each acceptance by the Corporation of an offer for the
purchase of Notes.
Such Agent shall make reasonable efforts to assist the
Corporation in obtaining performance by each purchaser whose
offer to purchase Notes has been solicited by such Agent and
accepted by the Corporation. The Agent shall not have any
liability to the Corporation in the event any such agency
purchase is not consummated for any reason other than the gross
negligence of the Agent. If the Corporation shall default on its
obligation to deliver Notes to a purchaser whose offer it has
accepted, the Corporation shall (i) hold the Agent for such
purchase harmless against any loss, claim or damage arising from
or as a result of such default by the Corporation and (ii)
notwithstanding such default, pay to such Agent any commission to
which it would be entitled in connection with such sale.
(c) Commissions. For those offers to purchase Notes
accepted by the Corporation, the Agent shall be paid a
commission. Unless otherwise agreed between the Corporation and
the Agent and, if required by law or otherwise, disclosed in a
Pricing Supplement, such commission shall be an amount equal to
the applicable percentage of the principal amount of each Note
sold by the Corporation as a result of a solicitation made by
such Agent as set forth in Exhibit C hereto.
(d) Purchases as Principal. The Agents shall not have any
obligation to purchase Notes from the Corporation as principal,
but an Agent and the Corporation may expressly agree from time to
time that such Agent shall purchase Notes as principal. In the
event that an Agent and the Corporation shall expressly so agree,
Notes shall be purchased by such Agent as principal. Unless
otherwise agreed between the Corporation and the Agent and, if
required by law or otherwise, disclosed in a Pricing Supplement,
each Note sold to an Agent as principal shall be purchased by
such Agent at a price equal to 100% of the principal amount
thereof less a discount equivalent to the applicable commissions
set forth in Exhibit C hereto and may be resold by such Agent at
prevailing market prices at the time or times of resale as
determined by such Agent. Such purchases as principal shall
otherwise be made in accordance with terms agreed upon by the
Agent and the Corporation (which shall be agreed upon orally,
with written confirmation prepared by the Agent and delivered to
the Corporation within two business days of such oral agreement).
In the absence of a separate written agreement, the Agent's
commitment to purchase Notes as principal shall be deemed to have
been made on the basis of the representations, warranties and
covenants of the Corporation herein contained and shall be
subject to the terms and conditions set forth herein, including
Section 10(b) hereof.
(e) Sub-Agents. An Agent may engage the services of any
other broker or dealer in connection with the resale of any Notes
purchased as principal but no Agent may appoint sub-agents. In
connection with sales by an Agent of Notes purchased by such
Agent as principal to other brokers or dealers, such Agent may
allow any portion of the discount received in connection with
such purchases from the Corporation to such brokers and dealers.
(f) Appointment of Additional Agents. Notwithstanding any
provision herein to the contrary, the Corporation reserves the
right to appoint additional agents for the offer and sale of
Notes, which agency may be on an on-going basis or on a one-time
basis. Any such additional agent shall become a party to this
Agreement and shall thereafter be subject to the provisions
hereof and entitled to the benefits hereunder upon the execution
of a counterpart hereof or other form of acknowledgment of its
appointment hereunder, including the form of letter attached
hereto as Exhibit D, and delivery to the Corporation of addresses
for notice hereunder and under the Procedures. After the time an
Agent is appointed, the Corporation shall deliver to the Agent,
at such Agent's request, copies of the documents delivered to
other Agents under Sections 4(a), 4(b) and 4(c) and, if such
appointment is on an on-going basis, Sections 6(b), 6(c) and 6(d)
hereof. If such appointment is on an on-going basis, the
Corporation will notify the other active Agents of such
appointment.
(g) Reliance. The Corporation and the Agents agree that
any Notes the placement of which an Agent arranges shall be
placed by such Agent in reliance on the representations,
warranties, covenants and agreements of the Corporation contained
herein and on the terms and conditions and in the manner provided
herein or provided in the Procedures.
(h) Sale of Notes. The Corporation shall not sell or
approve the solicitation of purchases of Notes in excess of the
amount which shall be authorized by the Corporation 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 otherwise monitoring
the availability of Notes for sale under the Registration
Statement.
SECTION 2. Representations and Warranties.
(a) The Corporation represents and warrants to the Agents
as of the date hereof, as of the date of each acceptance by the
Corporation of an offer for the purchase of Notes (whether
through an Agent as agent or to an Agent as principal), as of the
date of each delivery of Notes (whether through an Agent as agent
or to an Agent as principal) (the date of each such delivery to
an 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 (other than any Current Report on
Form 8-K relating exclusively to the issuance of debt securities
under the Registration Statement) (each of the times referenced
above being referred to herein as a "Representation Date") as
follows:
(i) The Corporation meets the requirements for use of
Form S-3 under the 1933 Act and has filed with the SEC the
Registration Statement, which has become effective. The
Registration Statement meets the requirements of Rule
415(a)(1) under the 1933 Act and complies in all other
material respects with said Rule.
(ii) As of the date hereof, when the Prospectus as
supplemented with respect to the Notes is first filed
pursuant to Rule 424 under the 1933 Act, when any amendment
to the Registration Statement becomes effective (including
the filing of any document incorporated by reference in the
Registration Statement) and as of the applicable
Representation Date, (a) the Registration Statement, as
amended or supplemented as of any such time, the Prospectus,
when filed, and the applicable Indenture will comply in all
material respects with the applicable requirements of the
1933 Act, the 1939 Act and the 1934 Act and the respective
rules and regulations thereunder, (b) the Registration
Statement, as amended as of any such time, will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading, and (c)
the Prospectus, as amended or supplemented as of any such
time, will not contain any untrue statement of a material
fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the
Corporation makes no representations or warranties as to (x)
that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of
the Trustee (Form T-1) under the 1939 Act of either of the
Trustees or (y) the information contained in or omitted from
the Registration Statement or the Prospectus or any
amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the
Corporation by or on behalf of any Agent specifically for
use in connection with the preparation of the Registration
Statement and the Prospectus.
(iii) The Corporation has complied and will comply
with all the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, 1987, as amended,
and all regulations promulgated thereunder relating to
issuers doing business in Cuba; provided, however, that in
the event that such Section 517.075 shall be repealed, or
amended such that issuers shall no longer be required to
disclose in prospectuses information regarding business
activities in Cuba or that a broker, dealer or agent shall
no longer be required to obtain a statement from issuers
regarding such compliance, then this representation and
agreement shall be of no further force and effect.
(b) Additional Certifications. Any certificate signed by
any director or officer of the Corporation and delivered to an
Agent or to counsel for such Agent in connection with an offering
of Notes or the sale of Notes to an Agent as principal shall be
deemed a representation and warranty by the Corporation to such
Agent as to the matters covered thereby on the date of such
certificate and at each Representation Date subsequent thereto.
SECTION 3. Covenants of the Corporation.
The Corporation covenants with the Agents as follows:
(a) Notice of Certain Events. The Corporation will notify
the Agents immediately of (i) the effectiveness of any amendment
to the Registration Statement, (ii) the 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) the receipt of any comments from the SEC with
respect to the Registration Statement or the Prospectus (other
than with respect to a document filed with the SEC pursuant to
the 1934 Act which will be incorporated by reference in the
Registration Statement and the Prospectus), (iv) any request by
the SEC for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional
information relating thereto (other than such a request with
respect to a document filed with the SEC pursuant to the 1934 Act
which will be incorporated by reference in the Registration
Statement and the Prospectus), and (v) 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 Corporation 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 Corporation
will give the Agents notice of its intention to file or prepare
any additional registration statement with respect to the
registration of additional Notes or 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 or maturity dates of
Notes or similar changes or an amendment or supplement effected
by the filing of a document with the SEC pursuant to the 1934
Act) and, upon request, will furnish the Agents with copies of
any such registration statement or amendment or supplement
proposed to be filed or prepared a reasonable time in advance of
such proposed filing or preparation, as the case may be, and will
not file any such registration statement or amendment or
supplement in a form as to which the Agents or their counsel
reasonably object.
(c) Copies of the Registration Statement and the Prospectus
and 1934 Act Filings. The Corporation will deliver to the Agents
as many signed and conformed copies 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) as the
Agents may reasonably request. The Corporation will furnish to
the Agents as many copies of the Prospectus (as amended or
supplemented) as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection
with sales or solicitations of offers to purchase the Notes under
the Act. Upon request, the Corporation will furnish to the
Agents a paper copy of any Annual Report on Form 10-K, Quarterly
Report on Form 10-Q or Current Report on Form 8-K filed by the
Corporation with the Commission pursuant to the 1934 Act as soon
as practicable after the filing thereof.
(d) Preparation of Pricing Supplements. The Corporation
will prepare, with respect to any Notes to be sold through or to
an Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Notes in a form previously approved by the Agents
and will file such Pricing Supplement with the SEC pursuant to
Rule 424(b) under the 1933 Act not later than the close of
business on the second business day after the date on which such
Pricing Supplement is first used.
(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 or counsel for the
Corporation, 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 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, 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, and confirmed in
writing, to the Agents to cease the solicitation of offers to
purchase the Notes in the Agents' capacity as agent and to cease
sales of any Notes any Agent may then own as principal, and the
Corporation will promptly prepare and 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.
(f) Prospectus Revisions -- Periodic Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public interim financial statement information related to
the Corporation 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 Corporation shall furnish
such information to the Agents, confirmed in writing, and
thereafter shall cause the Prospectus to be amended or
supplemented to include or incorporate by reference financial
information with respect thereto, as well as such other
information and explanations as shall be necessary for an
understanding thereof, as may be required by the 1933 Act or the
1934 Act or otherwise.
(g) Prospectus Revisions -- Audited Financial Information.
Except as otherwise provided in subsection (k) of this Section,
on or prior to the date on which there shall be released to the
general public financial information included in or derived from
the audited financial statements of the Corporation for the
preceding fiscal year, the Corporation shall furnish such
information to the Agents and thereafter shall cause the
Registration Statement and the Prospectus to be amended to
include or incorporate by reference such audited financial
statements and the report or reports, and consent or consents to
such inclusion or incorporation by reference, of the independent
accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an
understanding of such financial statements, as may be required by
the 1933 Act or the 1934 Act or otherwise.
(h) Earnings Statements. The Corporation 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 (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 Corporation'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.
(i) Blue Sky Qualification. The Corporation will endeavor,
in cooperation with the Agents, to qualify the Notes for offering
and sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Agents 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 Corporation 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 Corporation 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 Corporation
will promptly advise the Agents of the receipt by the Corporation
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.
(j) 1934 Act Filings. The Corporation, during the period
when the Prospectus is required to be delivered under the 1933
Act, will 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.
(k) Suspension of Certain Obligations. The Corporation
shall not be required to comply with the provisions of
subsections (e), (f) or (g) of this Section or the provisions of
Sections 6(b)(ii), 6(c)(iii) and 6(d)(iii) during any period from
the time (i) the Agents shall have suspended solicitation of
purchases of the Notes in their capacity as agent pursuant to a
request from the Corporation and (ii) the Agents shall not then
hold any Notes as principal purchased from the Corporation, to
the time the Corporation shall determine that solicitation of
purchases of the Notes should be resumed or shall subsequently
agree for the Agents to purchase Notes as principal.
SECTION 4. Conditions of Obligations.
The obligations of an Agent to solicit offers to purchase
the Notes as agent of the Corporation, the obligations of any
purchasers of the Notes sold through any Agent as agent and any
obligation of an Agent to purchase Notes as principal or
otherwise will be subject to the accuracy of the representations
and warranties on the part of the Corporation herein and to the
accuracy of the statements of the Corporation's officers made in
any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Corporation of all its
covenants and agreements herein contained and to the following
additional conditions precedent:
(a) Legal Opinions. On the date hereof, the Agents shall
have received the following legal opinions, dated as of the date
hereof and in form and substance satisfactory to the Agents:
(1) Opinion of Corporation Counsel. The opinion of
Smith Helms Mulliss & Moore, L.L.P., counsel to the
Corporation, to the effect of paragraphs (i) and (iv)
through (x) below, and the opinion of Paul J. Polking,
Executive Vice President and General Counsel to the
Corporation, to the effect of paragraphs (ii) and (iii)
below:
(i) The Corporation is a duly organized and
validly existing corporation in good standing under the
laws of the State of Delaware, has the corporate power
and authority to own its properties and conduct its
business as described in the Prospectus and is duly
registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended; each of (A)
NationsBank, National Association and (B) Bank of
America National Trust and Savings Association (or the
successors to such entities) (collectively, the
"Principal Banking Subsidiaries"), is a national
banking association formed under the laws of the United
States and authorized thereunder to transact business.
(ii) Except for those jurisdictions specifically
enumerated in such opinion, to the best of such
counsel's knowledge, neither the Corporation nor any of
the Principal Banking Subsidiaries is required to be
qualified or licensed to do business as a foreign
corporation in any jurisdiction.
(iii) All the outstanding shares of capital stock
of each Principal Banking Subsidiary have been duly and
validly authorized and issued and are fully paid and
(except as provided in 12 U.S.C. Section 55, as amended)
nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock
of the Principal Banking Subsidiaries (except
directors' qualifying shares) are owned, directly or
indirectly, by the Corporation free and clear of any
perfected security interest and, to the knowledge of
such counsel, after due inquiry, any other security
interests, claims, liens or encumbrances.
(iv) This Agreement has been duly authorized,
executed and delivered by the Corporation and
constitutes a legal, valid and binding agreement of the
Corporation, enforceable against the Corporation in
accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance or other
similar laws affecting the rights of creditors now or
hereafter in effect, and to equitable principles that
may limit the right to specific enforcement of
remedies, and except insofar as the enforceability of
the indemnity and contribution provisions contained in
this Agreement may be limited by federal and state
securities laws, and further subject to 12 U.S.C.
Section 1818(b)(6)(D) and similar bank regulatory powers and
to the application of principles of public policy
underlying all such laws).
(v) Each of the Indentures has been duly authorized,
executed and delivered by the Corporation, has been
duly qualified under the 1939 Act, as applicable, and
constitutes a legal, valid and binding instrument of
the Corporation enforceable against the Corporation in
accordance with its terms, and the Notes have been duly
authorized and, when the terms of the Notes have been
established and when the Notes have been completed,
executed, authenticated and delivered in accordance
with the provisions of the applicable Indenture, the
applicable Board Resolutions and this Agreement against
payment of the consideration therefor, will constitute
legal, valid and binding obligations of the Corporation
entitled to the benefits of such Indenture, subject
(with respect to each of the Indentures and the Notes)
as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance or other similar laws affecting
the rights of creditors now or hereafter in effect, and
to equitable principles that may limit the right to
specific enforcement of remedies, and further subject
to 12 U.S.C. Section 1818(b)(6)(D) and similar bank regulatory
powers and to the application of principles of public
policy underlying all such laws.
(vi) The forms of Note attached to the Secretary's
Certificate delivered to the Agents conform in all
material respects to the description thereof contained
in the Prospectus, as supplemented or amended.
(vii) The Registration Statement has become
effective under the 1933 Act; to the best knowledge of
such counsel no stop order suspending the effectiveness
of the Registration Statement has been issued and no
proceedings for that purpose have been instituted or
threatened; the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto (other
than the financial statements and other financial and
statistical information contained therein or
incorporated by reference therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the applicable requirements
of the 1933 Act and the 1934 Act and the respective
rules thereunder.
(viii) To the best knowledge of such counsel, except
as disclosed in the Registration Statement or the
Prospectus, there is no pending or threatened action,
suit or proceeding before or by any court or
governmental agency, authority or body or any
arbitrator involving the Corporation or any of the
Principal Banking Subsidiaries, of a character required
to be disclosed in the Registration Statement, which is
not adequately disclosed in the Prospectus, and there
is no franchise, contract or other document of a
character required to be described in the Registration
Statement or the Prospectus, or to be filed as an
exhibit, which is not described or filed as required.
(ix) To the best knowledge of such counsel,
neither the issuance and sale of the Notes, the
consummation of any other of the transactions
contemplated by this Agreement nor the fulfillment of
the terms thereof will conflict with, result in a
breach of, or constitute a default under the
Certificate of Incorporation or the Bylaws of the
Corporation, each as amended to date, or, to the best
of such counsel's knowledge, the terms of any material
indenture or other agreement or instrument known to
such counsel and to which the Corporation or any of the
Principal Banking Subsidiaries is a party or bound, or
any order or regulation known to such counsel to be
applicable to the Corporation or any of the Principal
Banking Subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Corporation or any of the
Principal Banking Subsidiaries.
(x) To the best knowledge of such counsel, no
authorization, order, approval or consent of, or filing
with, any court or governmental authority or agency is
necessary or required on behalf of the Corporation in
connection with the sale of the Notes hereunder, except
such as have been obtained under the 1933 Act or the
1933 Act Regulations and such as may be required under
foreign or state securities or insurance laws in
connection with the distribution of the Notes.
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 Delaware or the United
States, to the extent deemed proper and specified in such
opinion, upon counsel for the Agents or upon the opinion of
other counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Agents; and (B) as
to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Corporation and
the Principal Banking Subsidiaries and public officials.
(1) Opinion of Counsel to the Agents. The opinion of
Stroock & Stroock & Lavan LLP, counsel to the Agents,
covering the matters referred to in subparagraph (1) under
the subheadings (iv) through (vii), inclusive, above.
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 New York or the United
States, to the extent deemed proper and specified in such
opinion, upon counsel for the Corporation or upon the
opinion of other counsel of good standing believed to be
reliable and who are satisfactory to counsel for the
Corporation; and (B) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of
the Corporation and the Principal Banking Subsidiaries and
public officials.
(3) In giving their opinions required by subsections
(a)(1) and (a)(2) of this Section, but without opining in
connection therewith, Smith Helms Mulliss & Moore, L.L.P.
and Stroock & Stroock & Lavan LLP shall each additionally
state that although they have not independently verified,
are not passing upon and assume no responsibility for, the
accuracy, completeness or fairness of the statements
contained in the Registration Statement, such counsel has no
reason to believe that the Registration Statement or any
amendment thereof at the time it became effective, or that
the Prospectus, as amended or supplemented, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(b) Officer's Certificate. On the date hereof, the Agents
shall have received a certificate of the Chief Executive Officer
or a Senior Vice President and the Chief Financial or Chief
Accounting Officer of the Corporation, dated as of the date
hereof, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Prospectus and
this Agreement and that to the best of their knowledge (i) since
the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any
material adverse change in the condition, financial or otherwise,
or in the earnings or business affairs of the Corporation and its
subsidiaries considered as one enterprise, whether or not arising
from transactions in the ordinary course of business, except as
set forth or contemplated in the Prospectus, as supplemented or
amended, (ii) the other representations and warranties of the
Corporation contained in Section 2 hereof are true and correct in
all material respects with the same force and effect as though
expressly made at and as of the date of such certificate, (iii)
the Corporation has performed or complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder 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 instituted or threatened by the SEC.
(c) Comfort Letter. On the date hereof, the Agents shall
have received a letter from PricewaterhouseCoopers LLP
("PricewaterhouseCoopers") dated as of the date hereof and in
form and substance satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with respect to
the Corporation and its subsidiaries within the meaning of
the 1933 Act and the 1933 Act Regulations.
(ii) In their opinion, the consolidated financial
statements of the Corporation and its subsidiaries audited
by them and included or incorporated by reference in the
Registration Statement and Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations
with respect to registration statements on Form S-3 and the
1934 Act and the 1934 Act Regulations.
(iii) On the basis of procedures (but not an audit in
accordance with generally accepted auditing standards)
consisting of:
(a) Reading the minutes of the meetings of the
stockholders, the board of directors, executive
committee and audit committee of the Corporation and
the boards of directors and executive committees of its
subsidiaries as set forth in the minute books through a
specified date not more than five business days prior
to the date of delivery of such letter;
(b) Performing the procedures specified by the
American Institute of Certified Public Accountants for
a review of interim financial information as described
in FAS No. 71, Interim Financial Information, on the
unaudited condensed consolidated interim financial
statements of the Corporation and its consolidated
subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus and reading
the unaudited interim financial data, if any, for the
period from the date of the latest balance sheet
included or incorporated by reference in the
Registration Statement and Prospectus to the date of
the latest available interim financial data; and
(c) Making inquiries of certain officials of the
Corporation who have responsibility for financial and
accounting matters regarding the specific items for
which representations are requested below;
nothing has come to their attention as a result of the
foregoing procedures that caused them to believe that:
(1) the unaudited condensed consolidated interim
financial statements, included or incorporated by
reference in the Registration Statement and Prospectus,
do not comply as to form in all material respects with
the applicable accounting requirements of the 1934 Act
and the published rules and regulations thereunder;
(2) any material modifications should be made to
the unaudited condensed consolidated interim financial
statements, included or incorporated by reference in
the Registration Statement and Prospectus, for them to
be in conformity with generally accepted accounting
principles;
(3) (i) at the date of the latest available
interim financial data and at the specified date not
more than five business days prior to the date of the
delivery of such letter, there was any change in the
capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
stockholders' equity of the Corporation and the
subsidiaries on a consolidated basis as compared with
the amounts shown in the latest balance sheet included
or incorporated by reference in the Registration
Statement and the Prospectus or (ii) for the period
from the date of the latest available financial data to
a specified date not more than five business days prior
to the delivery of such letter, there was any change in
the capital stock or the long-term debt (other than
scheduled repayments of such debt) or any decreases in
stockholders' equity of the Corporation and the
subsidiaries on a consolidated basis, except in all
instances for changes or decreases which the
Registration Statement and Prospectus discloses have
occurred or may occur, or PricewaterhouseCoopers shall
state any specific changes or decreases.
(iv) The letter shall also state that
PricewaterhouseCoopers has carried out certain other
specified procedures, not constituting an audit, with
respect to certain amounts, percentages and financial
information which are included or incorporated by reference
in the Registration Statement and Prospectus and which are
specified by the Agents and agreed to by
PricewaterhouseCoopers, and has found such amounts,
percentages and financial information to be in agreement
with the relevant accounting, financial and other records of
the Corporation and its subsidiaries identified in such
letter.
(d) Other Documents. On the date hereof and on each
Settlement Date with respect to any purchase of Notes by an Agent
as principal, 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, or in order to
evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of the
conditions, contained herein; and all proceedings taken by the
Corporation in connection with the issuance and sale of Notes as
herein contemplated shall be satisfactory in form and substance
to such Agent and to counsel to the Agents.
If any condition specified in this Section 4 shall not have
been fulfilled in all material respects when and as required to
be fulfilled, this Agreement may be terminated by the Agents by
notice to the Corporation 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 3(h) hereof, the provisions
concerning payment of expenses under Section 8 hereof, the
indemnity and contribution agreements set forth in Section 7
hereof, the provisions concerning the representations, warranties
and agreements to survive delivery set forth in Section 9 hereof
and the provisions regarding parties set forth under Section 13
hereof shall remain in effect.
SECTION 5. Delivery of and Payment for Notes Sold through the
Agents.
Delivery of Notes sold through an Agent as agent shall be
made by the Corporation 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 Agent shall promptly notify the Corporation and
deliver the Note to the Corporation, and, if the Agent has
theretofore paid the Corporation for such Note, the Corporation
will promptly return such funds to the Agent. If such failure
occurred for any reason other than default by the Agent in the
performance of its obligations hereunder, the Corporation will
reimburse the Agent on an equitable basis for its loss of the use
of the funds for the period such funds were credited to the
Corporation's account. Unless otherwise agreed between the
Corporation and the Agent, all Notes will be issued in book-entry
only form and will be represented by one or more fully registered
global securities.
SECTION 6. Additional Covenants of the Corporation.
The Corporation covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each
delivery of Notes to an Agent pursuant to a sale of Notes to such
Agent as principal, shall be deemed to be an affirmation that the
representations and warranties of the Corporation contained in
this Agreement and in any certificate theretofore delivered to
such Agent pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking
that such representations and warranties will be true and correct
at the time of delivery to the purchaser or his agent, or to such
Agent, of the Note or Notes relating to such acceptance or sale,
as the case may be, as though made at and as of each such time
(and it is understood that such representations and warranties
shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that
(i) there is filed with the SEC any Quarterly Report on Form 10-Q
or Annual Report on Form 10-K that is incorporated by reference
into the Prospectus, or (ii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for interest rates, maturity dates or other terms of Notes
or similar changes or an amendment or supplement which relates
exclusively to an offering of securities other than the Notes)
the Corporation shall furnish or cause to be furnished to the
Agents forthwith a certificate of the Chief Executive Officer or
any Senior Vice President, and the Chief Financial Officer or the
Chief Accounting Officer or Treasurer of the Corporation dated
the date of filing with the SEC of such supplement or document or
the date of effectiveness of such amendment, as the case may be,
in form satisfactory to the Agents to the effect that the
statements contained in the certificate referred to in Section
4(b) hereof which was last furnished to the Agents are true and
correct at the time of such filing, amendment or supplement, 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 4(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.
(c) Subsequent Delivery of Legal Opinions. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed any Quarterly
Report on Form 10-Q, or (iii) if required by the Agents, the
Registration Statement or the Prospectus shall be amended or
supplemented (other than by an amendment or supplement providing
solely for interest rates, maturity dates or other terms of the
Notes or similar changes or solely for the inclusion of
additional financial information or an amendment or supplement
which relates exclusively to an offering of securities other than
the Notes), the Corporation shall furnish or cause to be
furnished forthwith to the Agents and to counsel to the Agents
the written opinions of Smith Helms Mulliss & Moore, L.L.P.,
counsel to the Corporation, and Paul J. Polking, General Counsel
to the Corporation, or other counsel satisfactory to the Agents,
dated the date of filing with the SEC of such supplement or
document or the date of effectiveness of such amendment, as the
case may be, in form and substance satisfactory to the Agents, of
the same tenor as the opinions referred to in Section 4(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 opinions; or, in lieu of such opinions,
counsel last furnishing such opinions to the Agents shall furnish
the Agents with a letter substantially 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).
(d) Subsequent Delivery of Comfort Letters. Each time that
(i) there is filed with the SEC any Annual Report on Form 10-K,
(ii) if required by the Agents, there is filed with the SEC any
Quarterly Report on Form 10-Q or (iii) if required by the Agents,
the Registration Statement or the Prospectus shall be amended or
supplemented to include additional financial information required
to be set forth or incorporated by reference into the Prospectus
under the terms of Item 11 of Form S-3 under the 1933 Act, the
Corporation shall cause PricewaterhouseCoopers forthwith to
furnish the Agents a letter, dated the date of effectiveness of
such amendment, supplement or document filed with the SEC, as the
case may be, in form satisfactory to the Agents, of the same
tenor as the portions of the letter referred to in clauses (i)
and (ii) of Section 4(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general
tenor as the portions of the letter referred to in clauses (iii)
and (iv) of said Section 4(c) with such changes as may be
necessary to reflect changes in the financial statements and
other information derived from the accounting records of the
Corporation; 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,
PricewaterhouseCoopers may limit the scope of such letter to the
unaudited financial statements included in such amendment or
supplement. If any other information included therein is of an
accounting, financial or statistical nature, the Agents may
request procedures be performed with respect to such other
information. If PricewaterhouseCoopers is willing to perform and
report on the requested procedures, such letter should cover such
other information. Any letter required to be provided by
PricewaterhouseCoopers hereunder shall be provided within 10
business days of the filing of the Annual Report on Form 10-K or,
with respect to any letter required by the Agents pursuant to
subparagraph (ii) or (iii) hereof, the request by the Agents.
SECTION 7. Indemnification and Contribution.
(a) The Corporation agrees to indemnify and hold harmless
each Agent and each person who controls any Agent within the
meaning of either the 1933 Act or the 1934 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 1933 Act,
the 1934 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 as originally filed or in any amendment thereof, or
arise out of or are based upon any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus, or any
amendment or supplement thereof, or arise out of or are based
upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, and agrees to reimburse each such
indemnified party for any legal or other expenses reasonably
incurred by them in connection with investigating or defending
any such loss, claim, damage, liability or action; provided,
however, that (i) the Corporation will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written
information furnished to the Corporation by or on behalf of any
Agent specifically for use in connection with the preparation
thereof, or arises out of or is based upon statements in or
omissions from that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification
of the Trustee (Form T-1) under the 1939 Act of either of the
Trustees, and (ii) such indemnity with respect to the Prospectus
shall not inure to the benefit of any Agent (or any person
controlling such Agent) from whom the person asserting any such
loss, claim, damage or liability purchased the Notes which are
the subject thereof if the Agent failed to deliver a copy of the
Prospectus as amended or supplemented to such person in
connection with the sale of such Notes excluding documents
incorporated therein by reference at or prior to the written
confirmation of the sale of such Notes to such person in any case
where such delivery is required by the 1933 Act and the untrue
statement or omission of a material fact contained in the
Prospectus was corrected in the Prospectus as amended or
supplemented. This indemnity agreement will be in addition to
any liability which the Corporation may otherwise have.
(b) Each Agent severally agrees to indemnify and hold
harmless the Corporation, each of its directors, each of its
officers who signs the Registration Statement and each person who
controls the Corporation within the meaning of either the 1933
Act or the 1934 Act, to the same extent as the foregoing
indemnity from the Corporation to each Agent, but only with
reference to written information relating to such Agent furnished
to the Corporation by or on behalf of such Agent 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 Agent may otherwise have.
The Corporation acknowledges that the statements set forth in the
last two paragraphs on the cover page and the last paragraph
under the heading "Plan of Distribution" in the Prospectus, as
supplemented or amended, constitute the only information
furnished in writing by or on behalf of the several Agents for
inclusion in the documents referred to in the foregoing
indemnity, and you, as the Agents, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under
this Section 7 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 7, notify
the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and,
to the extent that it 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, that 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 7 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 the Agent in the case of subparagraph (a),
representing the indemnified parties under subparagraph (a) 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) To provide for just and equitable contribution in
circumstances in which the indemnification provided for in
paragraph (a) of this Section 7 is due in accordance with its
terms but is for any reason held by a court to be unavailable
from the Corporation on the grounds of policy or otherwise, the
Corporation and the Agents shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with
investigating or defending same) to which the Corporation and one
or more of the Agents may be subject in such proportion so that
each Agent is responsible for that portion represented by the
percentage that the total commissions and underwriting discounts
received by such Agent bears to the total sales price from the
sale of Notes sold to or through the Agents to the date of such
liability, and the Corporation is responsible for the balance;
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 7, each person who controls any Agent
within the meaning of the 1933 Act shall have the same rights to
contribution as such Agent, and each person who controls the
Corporation within the meaning of either the 1933 Act or the 1934
Act, each officer of the Corporation who shall have signed the
Registration Statement and each director of the Corporation shall
have the same rights to contribution as the Corporation, subject
in each case to the provisions 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).
SECTION 8. Payment of Expenses.
The Corporation 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;
(d) The fees and disbursements of the Corporation's
accountants and counsel, of the Trustees and their counsel, and
of any registrar, transfer agent, paying agent or calculation
agent;
(e) The reasonable fees and disbursements of counsel to the
Agents incurred from time to time in connection with the
transactions contemplated hereby;
(f) The qualification of the Notes under state securities
or insurance 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 Agent 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 the 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, reproduction and delivery to
the Agents 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 incurred in connection with the
listing of the Notes on any securities exchange;
(k) The fees and expenses, if any, incurred with respect to
any filing with the National Association of Securities Dealers,
Inc.;
(l) Any advertising and other out-of-pocket expenses of the
Agents incurred with the approval of the Corporation;
(m) The cost of providing any CUSIP or other identification
numbers for the Notes; and
(n) The fees and expenses of any depository and any
nominees thereof in connection with the Notes.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Corporation
submitted pursuant hereto shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of any Agent or any controlling person of any Agent, or by
or on behalf of the Corporation, and shall survive each delivery
of and payment for any of the Notes.
SECTION 10. Termination.
(a) Termination of this Agreement. This Agreement
(excluding any agreement hereunder by an Agent to purchase Notes
as principal) may be terminated for any reason, with respect to
one or more, or all, of the Agents, at any time by either the
Corporation or one or more of the Agents upon the giving of 30
days' written notice of such termination to the other party
hereto. Any termination by the Corporation of this Agreement
with respect to one or more, but less than all, of the Agents
shall be effective with respect to such designated Agents only,
and the Agreement will remain in force and effect with respect to
any other Agents who remain parties hereto.
(b) Termination of Agreement to Purchase Notes as
Principal. An Agent may terminate any agreement hereunder by
such Agent to purchase Notes as principal, immediately upon
notice to the Corporation at any time prior to the Settlement
Date relating thereto, (i) if there has been, since the date of
such agreement or since the respective dates as of which
information is given in the Registration Statement, any material
adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the
Corporation and its subsidiaries considered as one enterprise, or
(ii) if there shall have occurred, since the date of such
agreement, any outbreak or material escalation of hostilities or
other national or international calamity or crisis the effect of
which is such as to make it, in the sole judgment of such Agent,
impracticable to market the Notes or enforce contracts for the
sale of the Notes, or (iii) if, since the date of such agreement,
trading in securities generally on the New York Stock Exchange
shall have been suspended or limited, or (iv) if, since the date
of such agreement, a banking moratorium shall have been declared
by either Federal or New York authorities.
If, after the date of an agreement hereunder to purchase
Notes as principal and prior to the Settlement Date with respect
to such agreement, the rating assigned by Standard & Poor's
Ratings Services, a division of The McGraw-Hill Companies, or
Moody's Investors Service, Inc., as the case may be, to any debt
securities of the Corporation shall have been lowered or if
either of such rating agencies shall have publicly announced that
it has under surveillance or review, with possible negative
implications, its rating of any debt securities of the
Corporation, then the Corporation and the Agent mutually shall
determine whether the terms of such agreement to purchase Notes
shall need to be renegotiated and, if so, shall so negotiate in
good faith the revised terms of such agreement to purchase Notes.
In the event that the Corporation and the Agent reasonably fail
to agree on any such revised terms, then either the Corporation
or the Agent may terminate such agreement to purchase Notes.
(c) General. In the event of a termination under this
Section 10, or following the Settlement Date in connection with a
sale to or through an Agent appointed on a one-time basis,
neither party will have any liability to the other party hereto,
except that (i) the Agents shall be entitled to any commission
earned in accordance with Section 1(c) hereof, (ii) if at the
time of termination (a) any Agent shall own any Notes purchased
by it as principal with the intention of reselling them or (b) an
offer to purchase any of the Notes has been accepted by the
Corporation 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 3 and 6 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 3(h) hereof,
the provisions of Section 8 hereof, the indemnity and
contribution agreements set forth in Section 7 hereof, and the
provisions of Sections 9, 12 and 13 hereof shall remain in
effect.
SECTION 11. 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.
Notices to the Corporation shall be delivered to it at the
address specified below and notices to any Agent shall be
delivered to it at the address set forth on Exhibit A.
If to the Corporation:
BankAmerica Corporation
Corp. Treas. Div. NC1-007-23-01
100 North Tryon Street
Charlotte, North Carolina 28255
Attention: John E. Mack,
Senior Vice President
Telecopy: (704) 386-0270
With a copy to:
Paul J. Polking
General Counsel
BankAmerica Corporation
Legal Department, NC1-007-20-01
100 North Tryon Street
Charlotte, North Carolina 28255
Telecopy: (704) 386-6453
Smith Helms Mulliss & Moore, L.L.P.
201 North Tryon Street
Charlotte, North Carolina 28202
Attention: Boyd C. Campbell, Jr.
Telecopy: (704) 334-8467
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 11.
SECTION 12. Governing Law; Counterparts.
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. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding
upon the Agents and the Corporation 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 Section 7 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.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Corporation a
counterpart hereof, whereupon this instrument along with all
counterparts will become a binding agreement between the Agents
and the Corporation in accordance with its terms.
Very truly yours,
BANKAMERICA CORPORATION
By: /S/ JOHN E. MACK
Name: John E. Mack
Title: Senior Vice President
Accepted:
NATIONSBANC MONTGOMERY SECURITIES LLC
By:/s/ LYNN MCCONNELL
Name: Lynn McConnell
Title: Managing Director
BEAR, STEARNS & CO. INC.
By: /s/ TIMOTHY O'NEILL
Name: Timothy O'Neill
Title: Senior Managing Director
LEHMAN BROTHERS INC.
By: /s/ KYLE MILLER
Name: Kyle Miller
Title: Senior Vice President
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ SCOTT G. PRIMROSE
Name: Scott G. Primrose
Title: Authorized Signatory
SALOMON SMITH BARNEY INC.
By: /S/ MARTHA D. BAILEY
Name: Martha D. Bailey
Title: First Vice President
EXHIBIT A
AGENTS
NationsBanc Montgomery Securities LLC
100 North Tryon Street
7th Floor, NC1-007-07-01
Charlotte, North Carolina 28255-0065
Telecopy: (704) 388-9982
Telephone: (704) 388-8856
With a copy to:
Stroock & Stroock & Lavan LLP
180 Maiden Lane
New York, New York 10038-4982
Attention: James R. Tanenbaum
Telecopy: (212) 806-6006
Bear, Stearns & Co. Inc.
245 Park Avenue
4th Floor
New York, New York 10167
Attention: Maurice F. Beshlian
Telecopy: (212) 272-9879
Telephone: (212) 272-2000
Lehman Brothers
Lehman Brothers Inc.
3 World Financial Center
12th Floor
New York, New York 10285-1200
Attention: Medium-Term Note Department
Telecopy: (212) 528-1718
Telephone: (212) 526-2040
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy: (212) 449-2234
Salomon Smith Barney Inc.
32nd Floor
Seven World Trade Center
New York, New York 10048
Attention: MTN Group
Telecopy: (212) 783-2274
EXHIBIT B
The following terms, if applicable, shall be agreed to by an
Agent and the Corporation in connection with each sale of Notes:
Principal Amount: $__________
(or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Spread or Spread Multiplier, if any:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Index Maturity for Initial Interest Rate
(if different):
Index Maturity:
Index Maturity for Final Interest Payment
Period (if different):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
If Indexed Note:
Applicable Index for Principal and/or Interest:
Base Rate:
Initial Interest Rate:
Initial Interest Reset Date:
Valuation Date:
Reference Price:
Principal Repayment Amount:
Interest Rate Reset Month(s):
Interest Payment Month(s):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Rate Reset Period:
Interest Payment Period:
Interest Payment Date:
Calculation Agent:
Other Terms:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Original Issue Date:
Date of Maturity:
Purchase Price: _____%
Settlement Date and Time:
Additional Terms:
EXHIBIT C
As compensation for the services of an Agent hereunder, the
Corporation shall pay it, on a discount basis, a commission for the
sale of each Note by such Agent which, unless otherwise agreed
between the Corporation and Agent, shall be equal to the principal
amount of such Note multiplied by the appropriate percentage set
forth below:
PERCENT OF
MATURITY PRINCIPAL
RANGES 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 6 years. . . . . . . . . . . . .500
From 6 years to less than 7 years. . . . . . . . . . . . .550
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
The commission for Notes with a maturity more than 30 years or
sold to one or more Agents as principal also is subject to
negotiation between the Corporation and the Agent at the time of
sale.
EXHIBIT D
[Date]
[Name and Address of Agent]
Re: Issuance of $_________________ Medium Term
Senior/Subordinated Notes, Series H, by BankAmerica
Corporation
Dear __________:
The Master United States Distribution Agreement dated November
__, 1998 (the "Agreement"), among BankAmerica Corporation
("BankAmerica") and the Agents named therein, provides for the
issue and sale by BankAmerica of its Medium Term Notes, Series H.
Subject to and in accordance with the terms of the Agreement and
accompanying Administrative Procedures, NationsBank hereby
appoints you as Agent (as such term is defined in the Agreement)
in connection with the purchase of the notes as described in the
accompanying Pricing Supplement No. ___, dated ___________,
199__, (the "Notes") but only for this one reverse inquiry
transaction. Your appointment is made subject to the terms and
conditions applicable to Agents under the Agreement and
terminates upon payment for the Notes or other termination of
this transaction. Accompanying this letter is a copy of the
Agreement, the provisions of which are incorporated herein by
reference. Copies of the officer's certificate, opinions of
counsel, and auditors' letter described in the Agreement are not
enclosed but are available upon your request.
This letter agreement, like the Agreement, is governed by and
construed in accordance with the laws of the State of New York.
If the above is in accordance with your understanding of our
agreement, please sign and return this letter to us on or before
settlement date. This action will confirm your appointment and
your acceptance and agreement to act as Agent in connection with
the issue and sale of the above described Notes under the terms
and conditions of the Agreement.
Very truly yours,
AGREED AND ACCEPTED
BANKAMERICA CORPORATION [Name of Agent]
By:____________________ By:_____________________
Name:__________________ Name:___________________
Title:_________________ Title:__________________