BANKAMERICA CORPORATION
UNDERWRITING AGREEMENT (5 7/8% Senior Notes, due 2009)
New York, New York
February 2, 1999
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
BankAmerica Corporation, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting
as representatives (the "Representatives"), the principal amount
of its securities identified in Schedule I hereto (the
"Securities"), to be issued under an indenture (the "Indenture")
dated as of January 1, 1995 between the Company and U.S. Bank
Trust, National Association (successor to BankAmerica National
Trust Company), as trustee (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, each shall be deemed to refer
to such firm or firms.
1. Representations and Warranties. (a) The Company
represents and warrants to, and agrees with, each Underwriter
that:
(i) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended
(the "Act"), and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
such form (the file number of which is set forth in Schedule
I hereto), which has become effective, for the registration
under the Act of the Securities. Such registration
statement, as amended at the date of this Agreement, meets
the requirements set forth in Rule 415(a)(1) under the Act
and complies in all other material respects with said Rule.
The Company proposes to file with the Commission pursuant to
Rule 424 or Rule 434 under the Act a supplement to the form
of prospectus included in such registration statement
relating to the Securities and the plan of distribution
thereof and has previously advised you of all further
information (financial and other) with respect to the
Company to be set forth therein. Such registration
statement, including the exhibits thereto, as amended at the
date of this Agreement, is hereinafter called the
"Registration Statement;" such prospectus in the form in
which it appears in the Registration Statement is
hereinafter called the "Basic Prospectus;" and such
supplemented form of prospectus, in the form in which it
shall be filed with the Commission pursuant to Rule 424 or
Rule 434 (including the Basic Prospectus as so supplemented)
is hereinafter called the "Final Prospectus." Any
preliminary form of the Final Prospectus which has
heretofore been filed pursuant to Rule 424 hereinafter is
called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on or before the
date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to
the terms "amend," "amendment" or "supplement" with respect
to the Registration Statement, the Basic Prospectus, and the
Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document
under the Exchange Act after the date of this Agreement, or
the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may
be, and deemed to be incorporated therein by reference.
(ii) As of the date hereof, when the Final Prospectus
is first filed pursuant to Rule 424 or Rule 434 under the
Act, when, prior to the Closing Date (as hereinafter
defined), any amendment to the Registration Statement
becomes effective (including the filing of any document
incorporated by reference in the Registration Statement),
when any supplement to the Final Prospectus is filed with
the Commission and at the Closing Date (as hereinafter
defined), (i) the Registration Statement as amended as of
any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture will
comply in all material respects with the applicable
requirements of the Act, the Trust Indenture Act of 1939
(the "Trust Indenture Act") and the Exchange Act and the
respective rules thereunder, (ii) 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
(iii) the Final 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 Company makes no representations or warranties as
to (A) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of
the Trustee (Form T-1) under the Trust Indenture Act of the
Trustee or (B) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any
amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation of the Registration Statement and the Final
Prospectus.
(b) Each Underwriter represents and agrees that:
(i) It has not and will not, directly or indirectly,
offer, sell or deliver any of the Securities or distribute
the Final Prospectus or any other offering materials
relating to the Securities in or from any jurisdiction
except under circumstances that will, to the best of its
knowledge and belief, result in compliance with any
applicable laws and regulations thereof and that, to the
best of its knowledge and belief, will not impose any
obligations on the Company except as set forth herein.
(ii) (A) it has not offered or sold and will not offer
or sell any Securities to persons in the United Kingdom
prior to the expiration of six months from the Closing Date
(as defined herein), except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (whether as principal or agent) for
the purpose of their businesses or otherwise in
circumstances which have not resulted and will not result in
an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulation 1995,
(B) it has complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect
to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom, and (C) it
has only issued or passed on, and will only issue or pass
on, in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who
is of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions)
Order 1996 (as amended) or is a person to whom such document
may otherwise lawfully be issued or passed on.
2. Purchase and Sale. Subject to the terms and conditions
and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price set forth in Schedule I
hereto, the principal amount of the Securities set forth opposite
such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to
delayed delivery arrangements, the respective principal amounts
of Securities to be purchased by the Underwriters shall be set
forth in Schedule II hereto, less the respective amounts of
Contract Securities determined as provided below. Securities to
be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided
are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery
Contracts"), substantially in the form of Schedule III hereto but
with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay
to the Representatives, for the account of the Underwriters, on
the Closing Date, the percentage set forth in Schedule I hereto
of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to
be with institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment companies
and educational and charitable institutions. The Company will
make Delayed Delivery Contracts in all cases where sales of
Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I hereto
and the aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount set forth in
Schedule I hereto. The Underwriters will not have any
responsibility in respect of the validity or performance of
Delayed Delivery Contracts. The principal amount of Securities
to be purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities
as the principal amount of Securities set forth opposite the name
of such Underwriter bears to the aggregate principal amount set
forth in Schedule II hereto, except to the extent that you
determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided,
however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal
amount set forth in Schedule II hereto, less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the
time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the
Company or as provided in Section 8 hereof (such date and time of
delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall
be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof in the
manner set forth in Schedule I hereto. Unless otherwise agreed,
certificates for the Underwriters' Securities shall be in the
form set forth in Schedule I hereto, and such certificates may be
deposited with The Depository Trust Company ("DTC") or a
custodian of DTC and registered in the name of Cede & Co., as
nominee for DTC.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the
Registration Statement or supplement (including the Final
Prospectus) to the Basic Prospectus unless the Company has
furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus to be
filed with the Commission pursuant to Rule 424 or Rule 434
via the Electronic Data Gathering, Analysis and Retrieval
System. The Company will advise the Representatives
promptly (i) when the Final Prospectus shall have been filed
with the Commission pursuant to Rule 424 or Rule 434, (ii)
when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the
Registration Statement or amendment of or supplement to the
Final Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose. The Company will 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) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, except
with respect to any such delivery requirement imposed upon
an affiliate of the Company in connection with any secondary
market sales, any event occurs as a result of which the
Final Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein in light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend or
supplement the Final Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct
such statement or omission or an amendment which will effect
such compliance.
(c) The Company will make generally available to its
security holders and to the Representatives as soon as
practicable, but not later than 60 days after the close of
the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the regulations
under the Act) covering a twelve month period beginning not
later than the first day of the Company's fiscal quarter
next following the "effective date" (as defined in said Rule
158) of the Registration Statement.
(d) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, copies of
the Registration Statement (including exhibits thereto) and
each amendment thereto which shall become effective on or
prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by
the Act, as many copies of any Preliminary Final Prospectus
and the Final Prospectus and any amendments thereof and
supplements thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing all
documents relating to the offering.
(e) The Company will arrange for the qualification of
the Securities for sale under the laws of such jurisdictions
as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required
for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that
the Company shall not be required to qualify to do business
in any jurisdiction where it is not now so qualified or to
take any action which would subject it to general or
unlimited service of process of any jurisdiction where it is
not now so subject.
(f) Until the business day following the Closing Date,
the Company will not, without the consent of the
Representatives, offer or sell, or announce the offering of,
any securities covered by the Registration Statement or by
any other registration statement filed under the Act;
provided, however, the Company may, at any time, offer or
sell or announce the offering of any securities (A) covered
by a registration statement on Form S-8 or (B) covered by a
registration statement on Form S-3 and (i) pursuant to which
the Company issues securities under one of the Company's
medium-term note programs or (ii) pursuant to which the
Company issues securities for its Dividend Reinvestment
Plan.
(g) The Company will use its best efforts to effect
the listing of the Securities on the Luxembourg Stock
Exchange.
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters'
Securities shall be subject to the accuracy of the
representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement
filed prior to the Closing Date (including the filing of any
document incorporated by reference therein) and as of the Closing
Date, to the accuracy of the statements of the Company made in
any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall
have been instituted or threatened; and the Final Prospectus
shall have been filed or mailed for filing with the
Commission within the time period prescribed by the
Commission.
(b) The Company shall have furnished to the
Representatives the opinion of Smith Helms Mulliss & Moore,
L.L.P., counsel for the Company, dated the Closing Date, to
the effect of paragraphs (i), (iv) and (vi) through (xii)
below, and the opinion of Paul J. Polking, General Counsel
to the Company, dated the Closing Date, to the effect of
paragraphs (ii), (iii) and (v) below:
(i) the Company 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 Final Prospectus, and is
duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
NationsBank, National Association and Bank of America,
National Trust and Savings Association (or the
successors to such entities) (collectively, the
"Principal Subsidiary Banks") are national banking
associations formed under the laws of the United States
and authorized thereunder to transact business;
(ii) each of the Company and the Principal
Subsidiary Banks is qualified or licensed to do
business as a foreign corporation in any jurisdiction
in which such counsel has knowledge that the Company or
such Principal Subsidiary Bank, as the case may be, is
required to be so qualified or licensed;
(iii) all the outstanding shares of capital
stock of each Principal Subsidiary Bank 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 Final Prospectus, all outstanding shares of capital
stock of the Principal Subsidiary Banks (except
directors' qualifying shares) are owned, directly or
indirectly, by the Company 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) the Securities conform in all material
respects to the description thereof contained in the
Final Prospectus;
(v) the Company has filed a preliminary listing
application and supporting documents with respect to
the Securities with the Luxembourg Stock Exchange and
such counsel has received no information stating that
the Securities will not be authorized for listing;
(vi) the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument
enforceable against the Company 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 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); and the Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters pursuant
to this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to
Delayed Delivery Contracts, in the case of any Contract
Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of
the Indenture (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 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);
(vii) such counsel is without knowledge that
(1) there is any pending or threatened action, suit or
proceeding before or by any court or governmental
agency, authority or body or any arbitrator involving
the Company or any of its subsidiaries, of a character
required to be disclosed in the Registration Statement
which is not adequately disclosed in the Final
Prospectus, or (2) any franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be
filed as an exhibit to the Registration Statement, is
not so described or filed as required;
(viii) the Registration Statement has become
effective under the Act; such counsel is without
knowledge that any stop order suspending the
effectiveness of the Registration Statement has been
issued or any proceedings for that purpose have been
instituted or threatened; and the Registration
Statement, the Final 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 Act
and the Exchange Act and the respective rules
thereunder;
(ix) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company and each constitutes a legal,
valid and binding agreement of the Company enforceable
against the Company 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);
(x) no consent, approval, authorization or order
of any court or governmental agency or body is required
on behalf of the Company for the consummation of the
transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been obtained
under the Act and such as may be required under the
blue sky or insurance laws of any jurisdiction in
connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained;
(xi) neither the issue and sale of the Securities,
nor the consummation of any other of the transactions
herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contracts will
conflict with, result in a breach of, or constitute a
default under the articles of incorporation or by-laws
of the Company or (1) the terms of any material
indenture or other agreement or instrument known to
such counsel and to which the Company or any of the
Principal Subsidiary Banks is a party or bound, or (2)
any order or regulation known to such counsel to be
applicable to the Company or any of the Principal
Subsidiary Banks of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Company or any of its
affiliates; and
(xii) such counsel is without knowledge of
rights to the registration of securities of the Company
under the Registration Statement which have not been
waived by the holders of such rights or which have not
expired by reason of lapse of time following
notification of the Company's intention to file the
Registration Statement.
In rendering such opinion, but without opining in
connection therewith, such counsel shall also state
that, although it has not independently verified, is
not passing upon and assumes no responsibility for the
accuracy, completeness or fairness of the statements
contained in the Registration Statement, it has no
reason 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 Final Prospectus, as
amended or supplemented, contains any untrue statement
of a material fact or omits to state a material fact
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading.
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, the
State of North Carolina or the United States, to the
extent deemed proper and specified in such opinion,
upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of
fact, to the extent deemed proper, on certificates of
responsible officers of the Company and its
subsidiaries and public officials.
(c) The Representatives shall have received from
Stroock & Stroock & Lavan LLP, counsel for the Underwriters,
such opinion or opinions, dated the Closing Date, with
respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration
Statement, the Final Prospectus and other related matters as
the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the
Chief Executive Officer or a Senior Vice President and the
principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration
Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued
and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent
financial statements included in the Final Prospectus,
there has been no material adverse change in the
condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether
or not arising from transactions in the ordinary course
of business, except as set forth in or contemplated in
the Final Prospectus.
(e) At the Closing Date, PricewaterhouseCoopers LLP
shall have furnished to the Representatives a letter or
letters (which may refer to letters previously delivered to
one or more of the Representatives), dated as of the Closing
Date, in form and substance satisfactory to the
Representatives, confirming that the response, if any, to
Item 10 of the Registration Statement is correct insofar as
it relates to them and stating in effect that:
(i) They are independent accountants within the
meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations
thereunder.
(ii) In their opinion, the consolidated financial
statements of the Company and its subsidiaries audited
by them and included or incorporated by reference in
the Registration Statement and Final Prospectus comply
as to form in all material respects with the applicable
accounting requirements of the Act and the regulations
thereunder with respect to registration statements on
Form S-3 and the Exchange Act and the regulations
thereunder.
(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 shareholders, the board of directors,
executive committee and audit committee of the
Company 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 SAS No. 71, Interim
Financial Information, on the unaudited condensed
consolidated interim financial statements of the
Company and its consolidated subsidiaries included
or incorporated by reference in the Registration
Statement and Final 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 Final Prospectus to the
date of the latest available interim financial
data; and
(c) Making inquiries of certain officials of
the Company 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 Final Prospectus, do not comply as
to form in all material respects with the
applicable accounting requirements of the Exchange
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 Final 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 shareholders' equity of the
Company 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
Final 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 shareholders' equity of
the Company 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 LLP shall state any
specific changes or decreases.
(iv) The letter shall also state that
PricewaterhouseCoopers LLP 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 Final Prospectus and which are specified by the
Representatives and agreed to by PricewaterhouseCoopers
LLP, and has found such amounts, percentages and
financial information to be in agreement with the
relevant accounting, financial and other records of the
Company and its subsidiaries identified in such letter.
In addition, at the time this Agreement is executed,
PricewaterhouseCoopers LLP shall have furnished to the
Representatives a letter or letters, dated the date of this
Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in this paragraph
(e) and in Schedule I hereto.
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Final Prospectus, there shall not have been (i) any change
or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or
any development involving a prospective change, in or
affecting the earnings, business or properties of the
Company and its subsidiaries the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the
judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the
offering or the delivery of the Securities as contemplated
by the Registration Statement and the Final Prospectus.
(g) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may
reasonably request.
(h) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities
arranged by the Underwriters have been approved by the
Company.
If any of the conditions specified in this Section 5 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 the Representatives and their counsel, this
Agreement and all obligations of the Underwriters hereunder may
be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to
the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in
Section 5 hereof is not satisfied or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than
by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them
in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each
person who controls any Underwriter within the meaning of either
the 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 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 as originally filed
or in any amendment thereof, or arise out of or are based upon
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
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by or on behalf of any Underwriter through the Representatives
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 Basic Prospectus or any
Preliminary Final 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 Final Prospectus (or
the Final 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 Act and the untrue
statement or omission of a material fact contained in the Basic
Prospectus or any Preliminary Final Prospectus was corrected in
the Final Prospectus (or the Final Prospectus as amended or
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers
who signs the Registration Statement, and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to
written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the
Representatives 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. The Company acknowledges that
the statements set forth in the language on the cover page
required by Item 509 of Regulation S-K and under the heading
"Underwriting" or "Plan of Distribution" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the
foregoing indemnity, and you, as the Representatives, 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 Representatives 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 Company on the grounds of policy or otherwise, the
Company 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 same) to which the Company 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 underwriting discount bears to the sum of
such discount and the purchase price of the Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (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
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 an Underwriter within
the meaning of the Act shall have the same rights to contribution
as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same
rights to contribution as the Company, 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).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth
opposite their names in Schedule II hereto bear to the aggregate
amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase;
provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not
purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set
forth in this Section 8, the Closing Date shall be postponed for
such period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other
documents or arrangements may be effected. Nothing contained in
this Agreement shall relieve any defaulting Underwriter of its
liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by
notice given to the Company 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 limited or minimum prices shall have been
established on such exchange, (ii) a banking moratorium shall
have been declared by Federal 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 financial
markets of the United States is such as to make it, in the
judgment of the Representatives, impracticable to market the
Securities.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company or its officers and of the
Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for
the Securities. The provisions of Section 6 and 7 hereof and
this Section 10 shall survive the termination or cancellation of
this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I hereto,
with a copy to: Stroock & Stroock & Lavan LLP, 180 Maiden Lane,
New York, New York 10038, Attn: James R. Tanenbaum; or, if sent
to the Company, will be mailed, delivered or telegraphed and
confirmed to it at 100 North Tryon Street, Charlotte, North
Carolina 28255, attention of the Secretary, with a copy to each
of: BankAmerica Corporation, 100 North Tryon Street, Legal
Department, NC 1007-20-1, Charlotte, North Carolina 28255, Attn:
Paul J. Polking, General Counsel; and Smith Helms Mulliss &
Moore, L.L.P., 201 North Tryon Street, Charlotte, North Carolina
28202, Attn: Boyd C. Campbell, Jr.
12. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons
referred to in Section 7 hereof, and no other person will have
any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflict of
laws.
[remainder of this page is intentionally blank]
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate
hereof, whereupon this letter and your acceptance shall represent
a binding agreement among the Company and the several Underwriters.
Very truly yours,
BANKAMERICA CORPORATION
By: /S/ JOHN E. MACK
Name: John E. Mack
Title: Senior Vice
President
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By: NATIONSBANC MONTGOMERY SECURITIES LLC
By: /S/ MICHAEL WHEELER
Name: Michael Wheeler
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated February 2, 1999
Registration Statement No. 333-51367
Representatives: NationsBanc Montgomery Securities LLC
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Smith Barney Inc.
Blaylock & Partners, L. P.
Interstate/Johnson Lane Corporation
Utendahl Capital Partners, L. P.
The Williams Capital Group, L. P.
Address of Representatives: c/o NationsBanc Montgomery
Securities LLC
100 North Tryon Street, 7th Floor
Charlotte, North Carolina 28255
Attention: Michael Wheeler, Managing
Director
Title, Purchase Price and Description of Securities:
Title: 5 7/8% Senior Notes, due 2009
Principal amount: $1,500,000,000
Purchase price (include type of funds and accrued interest
or amortization, if applicable): 98.669%; in federal (same
day) funds or wire transfer to an account previously
designated to the Representatives by the Company or, if
agreed to by the Representatives and the Company, by
certified or official bank check or checks.
Sinking fund provisions: none
Redemption provisions: none
Other provisions: none
Closing Date, Time and Location: February 8, 1999, 9:00 a.m. New
York City time, Office of Stroock & Stroock & Lavan LLP
Listing: Application to the Luxembourg Stock Exchange
Delayed Delivery Arrangements: none
Additional items to be covered by the letter from
PricewaterhouseCoopers LLP delivered pursuant
to Section 5(e) at the time this Agreement is executed: none
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
NationsBanc Montgomery Securities LLC $975,000,000
Bear, Stearns & Co. Inc 116,250,000
Lehman Brothers Inc. 116,250,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated 116,250,000
Salomon Smith Barney Inc. 116,250,000
Blaylock & Partners, L. P. 15,000,000
Interstate/Johnson Lane Corporation 15,000,000
Utendahl Capital Partners, L. P. 15,000,000
The Williams Capital Group, L. P. 15,000,000
TOTAL $1,500,000,000
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Sirs:
The undersigned hereby agrees to purchase from BankAmerica
Corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 19 , (the "Delivery
Date"), $ principal amount of the
Company's (the "Securities") offered by
the Company's Final Prospectus dated , 19 , receipt of
a copy of which is hereby acknowledged, at a purchase price of
% of the principal amount thereof, plus accrued interest, if any,
thereon from , 19 , to the date of payment and
delivery, and on the further terms and conditions set forth in
this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M. on the Delivery
Date to or upon the order of the Company in New York Clearing
House (next day) funds, at your office or at such other place as
shall be agreed between the Company and the undersigned upon
delivery to the undersigned of the Securities in definitive fully
registered form and in such authorized denominations and
registered in such names as the undersigned may request by
written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date. If
no request is received, the Securities will be registered in the
name of the undersigned and issued in a denomination equal to the
aggregate principal amount of Securities to be purchased by the
undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Securities on the Delivery Date, and the
obligation of the Company to sell and deliver Securities on the
Delivery Date, shall be subject to the conditions (and neither
party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not
prohibited on the date hereof, shall not on the Delivery Date be
prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to
be sold to them pursuant to the Underwriting Agreement referred
to in the Final Prospectus mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in
connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and
delivered, shall not be affected by the failure of any purchaser
to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without the written
consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and,
without limiting the foregoing, need not be on the first come,
first served basis. If this contract is acceptable to the
Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned, as of the date first above written, when such
counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the internal laws of the State of New York,
without giving effect to principles of conflict of laws.
Very truly yours,
_____________________________
(Name of Purchaser)
BY:____________________________
(Signature and Title of Officer)
________________________________
(Address)
Accepted:
BANKAMERICA CORPORATION
By:____________________________
(Authorized Signature)