SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
February 2, 1999
BANKAMERICA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State of Incorporation)
1-6523
(Commission File Number)
56-0906609
(IRS Employer Identification No.)
100 North Tryon Street
Charlotte, North Carolina
(Address of principal executive offices)
28255
(Zip Code)
(704) 386-5000
(Registrant's telephone number, including area code)
ITEM 5. OTHER EVENTS.
By action dated February 2, 1999, a Committee previously
appointed by the Board of Directors of the Registrant approved
the public offering of an aggregate principal amount of
$1,500,000,000 of the Registrant's 5 7/8% Senior Notes, due 2009
(the "Notes"), to various underwriters (the "Underwriters") and
otherwise established the terms and conditions of the Notes and
the sale thereof. The resolutions of the Committee are included
as Exhibit 99.1 hereto.
On February 2, 1999, the Registrant entered into an
underwriting agreement with the various Underwriters (the
"Underwriting Agreement") for the Notes. The terms of the
offering and the Notes are described in the Registrant's
Prospectus dated May 21, 1998 constituting a part of the
Registration Statement (hereinafter described), as supplemented
by a final Global Prospectus Supplement dated February 2, 1999
for the Notes. The Underwriting Agreement is included as Exhibit
1.1 hereto.
The Notes were issued pursuant to the Registrant's
Registration Statement on Form S-3, Registration No. 333-51367,
as amended ("Registration No. 333-51367"), on a delayed basis
pursuant to Rule 415 under the Securities Act of 1933, as amended
(the "1933 Act"). Registration No. 333-51367 registered up to
$10,000,000,000 aggregate initial offering price of the
Registrant's unsecured debt securities (either senior or
subordinated), warrants, units and shares of its preferred stock,
including depositary shares, and common stock (collectively,
"Securities").
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
The following exhibits are filed herewith:
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1.1 Underwriting Agreement dated February 2, 1999
with respect to the offering of the 5 7/8%
Senior Notes
4.1 Form of 5 7/8% Senior Note
5.1 Form of Opinion of Smith Helms Mulliss &
Moore, L.L.P. regarding legality of the 5 7/8%
Senior Notes
99.1 Resolutions dated February 2, 1999 of a
Committee of the Board of Directors with
respect to the terms of the offering of the
5 7/8% Senior Notes
99.2 News Release disseminated on February 3, 1999
regarding the sale of the 5 7/8% Senior Notes
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
BANKAMERICA CORPORATION
By: /s/ CHARLES M. BERGER
CHARLES M. BERGER
Associate General Counsel
Dated: February 8, 1999
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF EXHIBIT
1.1 Underwriting Agreement dated February 2, 1999
with respect to the offering of the 5 7/8%
Senior Note
4.1 Form of 5 7/8% Senior Note
5.1 Form of Opinion of Smith Helms Mulliss &
Moore, L.L.P. regarding legality of the
5 7/8% Senior Note
99.1 Resolutions dated February 2, 1999 of a
Committee of the Board of Directors with
respect to the terms of the offering of the
5 7/8% Senior Notes
99.2 News Release disseminated on February 3, 1999
regarding the sale of the 5 7/8% Senior Notes
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]<PAGE>
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
<PAGE>
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)
If the registered owner of this Note is The Depository Trust
Company or a nominee thereof, this Note is a Global Security and
the following legends are applicable: THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF
A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR
ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF
THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE
DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the issuer or its agent for registration
of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN
OBLIGATION OF OR GUARANTEED BY ANY BANKING OR NONBANKING
AFFILIATE OF BANKAMERICA CORPORATION AND IS NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
REGISTERED $___________
NUMBER R-__
Common Code No. 9469966 CUSIP 066050 CV5
ISIN US 066050CV5
SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
BANKAMERICA CORPORATION
5 7/8% SENIOR NOTE, DUE 2009
BANKAMERICA CORPORATION, a corporation duly organized and
existing under the laws of the State of Delaware (herein called
the "Corporation," which term includes any successor corporation
under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to CEDE & CO. or registered
assigns, the principal sum of _______________________MILLION
DOLLARS on February 15, 2009, and to pay interest on said
principal sum, semi-annually in arrears on February 15 and August
15 of each year, commencing August 15, 1999, at the rate of 5
7/8% per annum, from the February 15 or August 15, as the case
may be, next preceding the date of this Note to which interest
has been paid, unless the date hereof is a date to which interest
has been paid, in which case from the date of this Note, or
unless no interest has been paid on the Notes, in which case from
February 8, 1999, until payment of such principal sum has been
made or duly provided for. Notwithstanding the foregoing, if the
date hereof is after a record date for the Notes (which shall be
the close of business on the last day of the calendar month next
preceding an interest payment date) and before the next
succeeding interest payment date, this Note shall bear interest
from such interest payment date; provided, however, that if the
Corporation shall default in the payment of interest due on such
interest payment date, then this Note shall bear interest from
the next preceding interest payment date to which interest has
been paid, or, if no interest has been paid on the Notes, from
February 8, 1999. The interest so payable, and punctually paid
or duly provided for, on any interest payment date will, as
provided in such Indenture, be paid to the person in whose name
this Note (or one or more predecessor Notes evidencing all or a
portion of the same debt as this Note) is registered at the close
of business on the record date for such interest payment date.
The principal of and interest on this Note are payable in such
coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts, at the office or agency of the Corporation in New York,
New York or such other places that the Corporation shall
designate as provided in such Indenture; provided, however, that
interest may be paid, at the option of the Corporation, by check
mailed to the person entitled thereto at his address last
appearing on the Security Register of the Corporation relating to
the Notes. Any interest not punctually paid or duly provided for
shall be payable as provided in such Indenture.
Reference is made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as
though fully set forth at this place.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee or an authenticating
agent on behalf of the Trustee by manual signature, this Note
shall not be entitled to any benefit under such Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Corporation has caused this
instrument to be duly executed by manual or facsimile signature
under its corporate seal or a facsimile thereof.
BANKAMERICA CORPORATION
Attest:
By:
________________ Secretary Senior Vice President
[CORPORATE SEAL]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
Dated: ___________________ By: THE BANK OF NEW YORK,
as Authenticating Agent
By: _______________________
Authorized Signatory
[Reverse Side of Note]
BANKAMERICA CORPORATION
5 7/8% SENIOR NOTE, DUE 2009
This Note is one of a duly authorized series of Securities of
the Corporation unlimited in aggregate principal amount issued
and to be issued under an Indenture dated as of January 1, 1995
(herein called the "Indenture") between the Corporation and U.S.
Bank Trust National Association, as successor trustee to
BankAmerica National Trust Company (herein called the "Trustee,"
which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights
thereunder of the Corporation, the Trustee and the holders of the
Notes, and the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is also one of the Notes
designated as the Corporation's 5 7/8% Senior Notes, due 2009
(herein called the "Notes"), initially in the principal amount to
$1,500,000,000. The amount of Notes of this series may be
increased by the Corporation in the future. The Bank of New York
initially has been appointed Security Registrar, Authenticating
and Paying Agent in connection with the Notes.
Except in those situations in which the Corporation may
become obligated to pay Additional Amounts (as described herein),
the Notes of this series are not subject to redemption at the
option of the Corporation or repayment at the option of the
holder prior to maturity.
The provisions of Article Fourteen of the Indenture do not
apply to Securities of this series.
The Corporation shall pay as additional interest on this Note
such additional amounts ("Additional Amounts") as may be
necessary in order that the net payment by the Corporation of the
principal of and interest on this Note to a holder who is a
Non-United States Person, after deduction for any present or future
tax, assessment or governmental charge of the United States, or a
political subdivision or authority thereof or therein, imposed by
withholding with respect to the payment, will not be less than
the amount provided for in this Note to be then due and payable;
provided, however, that the foregoing obligation to pay
Additional Amounts shall not apply to:
(i) any tax, assessment or other governmental charge which
would not have been so imposed but for:
(a) the existence of any present or former connection
between such holder (or between a fiduciary, settlor,
beneficiary, member or stockholder of, or a person holding a
power over, such holder, if such holder is an estate, trust,
partnership or corporation) and the United States, including,
without limitation, such holder (or such fiduciary, settlor,
beneficiary, member, stockholder or person holding a power)
being or having been a citizen or resident or treated as a
resident thereof or being or having been engaged in a trade
or business therein or being or having been present therein
or having or having had a permanent establishment therein;
(b) such holder's present or former status as a personal
holding company, foreign personal holding company, passive
foreign investment company, private foundation or other
tax-exempt entity or controlled foreign corporation for United
States tax purposes or a corporation which accumulates
earnings to avoid United States federal income tax; or
(c) such holder's status as a bank extending credit
pursuant to a loan agreement entered into in the ordinary
course of business;
(ii) any tax, assessment or governmental charge that would
not have been imposed or withheld but for the failure of the
holder to comply with certification, identification or
information reporting requirements under United States income tax
laws, without regard to any tax treaty, with respect to the
payment, concerning the nationality, residence, identity or
connection with the United States of the holder or a beneficial
owner of this Note, if such compliance is required by United
States income tax laws, without regard to any tax treaty, as a
precondition to relief or exemption from such tax, assessment or
governmental charge;
(iii) any tax, assessment or governmental charge that would
not have been so imposed or withheld but for the presentation by
the holder of this Note for payment on a date more than 30 days
after the date on which such payment became due and payable or
the date on which payment thereof is duly provided for, whichever
occurs later;
(iv) any estate, inheritance, gift, sales, transfer,
excise, wealth or personal property tax or any similar tax,
assessment or governmental charge;
(v) any tax, assessment or governmental charge which is
payable otherwise than by withholding by the Corporation or the
Trustee from the payment of the principal of or interest on this
Note;
(vi) any tax, assessment or governmental charge required
to be withheld from such payment of principal of or interest on
this Note, if such payment can be made without such withholding
or any liability on the part of the Corporation;
(vii) any tax, assessment or other governmental charge
imposed on interest received by a person holding, actually or
constructively, 10% or more of the total combined voting power of
all classes of stock of the Corporation entitled to vote; or
(viii) any combination of items (i), (ii), (iii), (iv), (v),
(vi) or (vii);
nor shall Additional Amounts be paid with respect to any payment
of the principal of or interest on this Note to a person other
than the sole beneficial owner of such payment or that is a
partnership or fiduciary to the extent such beneficial owner,
member of such partnership or beneficiary or settlor with respect
to such fiduciary would not have been entitled to the payment of
Additional Amounts had such beneficial owner, member, beneficiary
or settlor held its interest in this Note directly.
The Notes of this series may be redeemed at the option of the
Corporation in whole, but not in part, at any time, on giving not
less than 30 nor more than 60 days' notice to the Trustee and the
holders of the Notes, if the Corporation has or may become
obliged to pay Additional Amounts as a result of any change in,
or amendment to, the laws or regulations of the United States or
any political subdivision or any authority thereof or therein
having power to tax, or any change in the application or official
interpretation of such laws or regulations after the date of this
Note.
Prior to the publication of any notice of redemption, the
Corporation shall deliver to the Trustee a certificate signed by
the Chief Financial Officer or a Senior Vice President of the
Corporation stating that the Corporation is entitled to effect
such redemption and setting forth a statement of facts showing
the conditions precedent to the right to redeem;
Notes so redeemed will be redeemed at 100% of their principal
amount together with interest accrued to (but excluding) the date
of redemption;
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note may be
registered on the Security Register of the Corporation relating
to the Notes, upon surrender of this Note for registration of
transfer at the office or agency of the Corporation designated by
it pursuant to the Indenture, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the
Corporation and the Trustee or the Security Registrar duly
executed by, the registered holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only as registered Notes without
coupons in the denominations of $1,000 and any integral multiple
in excess thereof. As provided in the Indenture, and subject to
certain limitations therein set forth, the Notes are exchangeable
for a like aggregate principal amount of Notes of different
authorized denominations, as requested by the holder surrendering
the same.
If any interest payment date or maturity date for this Note
falls on a day that is not a Business Day, the interest payment
date or maturity date will be the following day that is a
Business Day and the payment of interest or principal will be
made on such next Business Day as if it were made on the date
such payment was due and no additional interest will accrue on
the amount so payable for the period from and after such interest
payment date or maturity date.
No service charge will be made for any such registration of
transfer or exchange, but the Corporation may require payment of
a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment for registration of transfer of this
Note, the Corporation, the Trustee and any agent of the
Corporation or the Trustee may treat the person in whose name
this Note is registered as the absolute owner hereof for the
purpose of receiving payment as herein provided and for all other
purposes, whether or not this Note be overdue, and neither the
Corporation, the Trustee nor any such agent shall be affected by
notice to the contrary.
If an Event of Default (defined in the Indenture as (i) the
Corporation's failure to pay principal of (or premium, if any,
on) any Notes when due, or to pay interest on the Notes within 30
days after the same becomes due, (ii) the Corporation's breach of
its other covenants contained in this Note or the Indenture,
which breach is not cured within 90 days after written notice by
the Trustee or the holders of at least 25% in outstanding
principal amount of all Securities issued under the Indenture and
affected thereby, and (iii) certain events involving the
bankruptcy, insolvency or liquidation of the Corporation) shall
occur with respect to the Notes, the principal of all the Notes
may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the
rights and obligations of the Corporation and the rights of the
holders of the Notes under the Indenture at any time by the
Corporation with the consent of the holders of not less than
66-2/3% in aggregate principal amount of the Notes then outstanding
and all other Securities then outstanding issued under the
Indenture and affected by such amendment and modification. The
Indenture also contains provisions permitting the holders of a
majority in aggregate principal amount of the Notes then
outstanding and all other Securities then outstanding issued
under the Indenture and affected thereby, on behalf of the
holders of all such Securities, to waive compliance by the
Corporation with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any
such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future
holders of this Note and of any Note issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof
whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of
the Corporation, which is absolute and unconditional, to pay the
principal of and interest on this Note at the times, place and
rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of
or the interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any
incorporator, stockholder, officer or director, as such, past,
present or future, of the Corporation or any predecessor or
successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Notes of this series shall be dated the date of their
authentication.
All terms used in this Note which are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
The Notes are being issued by means of a book-entry system
with no physical distribution of certificates to be made except
as provided in the Indenture. The book-entry system maintained
by The Depository Trust Company ("DTC") will evidence ownership
of the Notes, with transfers of ownership effected on the records
of DTC and its participants pursuant to rules and procedures
established by DTC and its participants. The Corporation will
recognize Cede & Co., as nominee of DTC, while the registered
owner of the Notes, as the owner of the Notes for all purposes,
including payment of principal and interest, notices and voting.
Transfer of principal and interest to participants of DTC will be
the responsibility of DTC, and transfer of principal and interest
to beneficial owners of the Notes by participants of DTC will be
the responsibility of such participants and other nominees of
such beneficial owners. So long as the book-entry system is in
effect, the selection of any Notes to be redeemed will be
determined by DTC pursuant to rules and procedures established by
DTC and its participants. The Corporation will not be
responsible or liable for such transfers or payments or for
maintaining, supervising or reviewing the records maintained by
DTC, its participants or persons acting through such
participants.
Transfers of Notes outside of the United States may be
effected through the facilities of Cedel Bank, societe anonyme,
and Morgan Guaranty Trust Company of New York, Brussels office,
as operator of the Euroclear system, in accordance with the rules
and procedures established by such depositories.
__________
<PAGE>
The following abbreviations, when used in the inscription on
the face of the within Note, shall be construed as though they
were written out in full according to applicable laws or
regulations:
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not
as tenants in common
UNIF GIFT MIN ACT _________ Custodian _________
(Cust) (Minor)
under Uniform Gifts to Minors
Act __________ (State)
Additional abbreviations may also be used though not in the above
list.
__________
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Name and Address of Assignee, including zip code, must be
printed or typewritten.)
the within
Note, and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
to transfer said Note on the books of the Corporation, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with
the name as it appears upon the face of the within Note in every
particular, without alteration or enlargement or any change
whatever and must be guaranteed.
SMITH HELMS MULLISS & MOORE, L.L.P.
Attorneys at Law
Post Office Box 31247
Charlotte, North Carolina 28231
(Tel) 704-343-2000
(Fax) 704 334-8467
February 8, 1999
BankAmerica Corporation
100 North Tryon Street
Charlotte, North Carolina 28255-0065
Re: Public Offering of $1,500,000,000 Aggregate Principal Amount
of 5 7/8% Senior Notes, due 2009
Ladies and Gentlemen:
We have acted as counsel to BankAmerica Corporation, a
Delaware corporation (the "Corporation"), in connection with (i)
the issuance of $1,500,000,000 in aggregate principal amount of
its 5 7/8% Senior Notes, due 2009 (the "Notes") and (ii) the
Registration Statement on Form S-3, Registration No. 333-51367
(the "Registration Statement"), filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"), with respect to $10,000,000,000
aggregate principal amount of the Corporation's unsecured debt
securities, warrants, units, shares of its preferred stock and
shares of its common stock and the Prospectus dated May 21, 1988
constituting a part thereof, as supplemented by the Global
Prospectus Supplement dated February 2, 1999, filed with the
Commission pursuant to Rule 424(b) under the Act, relating to the
Notes.
As such counsel, we have examined and are familiar with such
original or photocopies or certified copies of such records of
the Corporation and its subsidiaries, certificates of officers of
the Corporation and of public officials and such other documents
as we have deemed relevant or necessary as the basis for the
opinion set forth below. In such examinations, we have assumed
the legal capacity of natural persons, the genuineness of all
signatures on, and the authenticity of, all documents submitted
to us as originals and the conformity to original documents of
all documents submitted to us as certified copies or photocopies
and the authenticity of the originals of such copies. We have
also relied upon statements of fact contained in documents that
we have examined in connection with our representation of the
Corporation.<PAGE>
Based solely upon the foregoing, and in reliance thereon,
and subject to the limitations, qualifications and exceptions set
forth below, we are of the opinion that the Notes, when executed,
issued and delivered by the Corporation to The Bank of New York
for authentication in accordance with the Indenture dated as of
January 1, 1995 between the Corporation and U.S. Bank Trust
National Association, successor to BankAmerica National Trust
Company, as trustee (the "Indenture"), authenticated and
delivered by The Bank of New York, as issuing and paying agent,
in accordance with the Indenture and paid for, all as
contemplated in the Board Resolution or Company Order (as each is
defined in the Indenture), will have been validly authorized and
issued under the Indenture and will constitute valid and legally
binding obligations of the Corporation.
The opinions expressed herein are limited to the laws of the
State of North Carolina and the United States of America and the
General Corporation Law of the State of Delaware and we express
no opinion as to the laws of any other jurisdiction.
We hereby consent to be named in the Registration Statement
as attorneys who passed upon the legality of the Notes and to the
filing of a copy of this opinion as part of the Corporation's
Current Report on Form 8-K to be filed for the purpose of
including this opinion as part of the Registration Statement.
Very truly yours,
/s/ SMITH HELMS MULLISS & MOORE, L.L.P.
WRITTEN CONSENT TO ACTION WITHOUT MEETING OF COMMITTEE
APPOINTED BY THE BOARD OF DIRECTORS OF
BANKAMERICA CORPORATION
February 2, 1999
WHEREAS, the Board of Directors of BankAmerica Corporation
(the "Corporation") previously has authorized and approved the
issuance and sale for cash, at any time or from time to time, of
(i) its unsecured debt securities (the "Debt Securities"), (ii)
shares of its preferred stock, including depositary shares (the
"Preferred Stock") and (iii) shares of its Common Stock (the
"Common Stock"), (iv) warrants ("Warrants"), and (v) units
("Units") in one or more public offerings, $10,000,000,000 of
which securities have been registered with the Securities and
Exchange Commission (the "Commission") pursuant to the
Corporation's registration statement on Form S-3, Registration
No. 333-51367, as amended (the "May 98 Shelf"); and
WHEREAS, the Corporation has issued and sold pursuant to the
May 98 Shelf $450,000,000 of its Debt Securities in underwritten
public offerings and has presently reserved up to $5,000,000,000 of
Debt Securities for a medium-term note program, leaving an
additional $4,550,000,000 in aggregate principal amount of Debt
Securities, Preferred Stock, Common Stock, Warrants and Units
that may be issued and sold under the May 98 Shelf; and
WHEREAS, by resolutions adopted by the Board of Directors
(the "Board") of the Corporation at a meeting duly called and
held on April 22, 1998, this Committee was appointed by the Board
(the "Committee") with full authority to take action in
connection with the issuance of the Corporation's Debt Securities
(either senior or subordinated and including medium-term notes),
and Preferred Stock, Common Stock, Warrants and Units, including
those securities registered by the May 98 Shelf, (collectively,
the "Securities") to be offered at the times and on terms to be
determined by the Committee; and
WHEREAS, no stop order suspending the effectiveness of the
above described Registration Statement has been received by the
Corporation and no proceedings for that purpose have been
instituted or threatened against the Corporation; and
WHEREAS, the Committee has determined that issuing a series
of its senior notes is advisable and in the Corporation's best
interests which series shall initially be in the principal amount
of $1,500,000,000.
AUTHORIZATION OF SENIOR NOTES
NOW, THEREFORE, BE IT RESOLVED, that pursuant to the
resolutions adopted by the Board on April 22, 1998 and the terms
and provisions of the Indenture between the Corporation and U.S.
Bank Trust National Association, as successor trustee to
BankAmerica National Trust Company, as trustee (the "Trustee"),
dated as of January 1, 1995 (the "Indenture"), the Corporation
shall issue a series of its senior unsecured indebtedness in the
form of its 5 7/8% Senior Notes, due 2009, which series of senior
notes shall be designated 5 7/8% Senior Notes, due 2009 (the
"Notes"), and which shall be subject to the terms and entitled to
the benefits of the Indenture;
RESOLVED FURTHER, that the amount of this series of Notes
shall be initially limited to $1,500,000,000 (the "Initial
Series"), but may be increased upon delivery of a supplemental
Officers Certificate setting forth the terms of such additional
amount;
RESOLVED FURTHER, that the Notes shall bear interest at the
rate of 5 7/8% per annum, which interest shall accrue from
February 8, 1999 and be payable semiannually on February 15, and
August 15, commencing August 15, 1999; and the record date for
the interest payable shall be the close of business on the last
day of the calendar month next preceding each interest payment
date;
RESOLVED FURTHER, that the maturity date of the Notes shall
be February 15, 2009.
RESOLVED FURTHER, that, with respect to the Notes, a
"Business Day" shall mean any day, other than a Saturday or
Sunday or a legal holiday in New York, New York or Charlotte,
North Carolina, that is not a day on which banking institutions
in New York, New York, or Charlotte, North Carolina are
authorized or required by law or regulation to be closed;
RESOLVED FURTHER, that the Initial Series of Notes shall be
sold to NationsBanc Montgomery Securities LLC and the other
Underwriters (as named in the Underwriting Agreement hereinafter
described) (the "Underwriters"), pursuant to the terms of the
Underwriting Agreement, who the Committee understands will
reoffer the Notes for sale in a public offering;
RESOLVED FURTHER, that except in those situations in which
the Corporation may become obligated to pay Additional Amounts
(as described herein), the Notes shall not be eligible for
redemption or entitled to any sinking fund and shall not be
subject to the provisions of Sections 14.02 and 14.03 of the
Indenture;
RESOLVED FURTHER, that the Initial Series of Notes shall be
sold to the Underwriters on February 8, 1999, at a price of
98.669% of the principal amount, and initially offered to the
public at a price of 99.319% of the principal amount;
RESOLVED FURTHER, that the Committee was advised by the
Underwriters that they will initially offer the Initial Series of
Notes to certain dealers at the initial public offering price,
less a concession not in excess of .40% of the principal amount
of the Notes, and that the Underwriters may allow, and such
dealers may reallow, a concession not in excess of .25% of such
principal amount on sales to other dealers;
RESOLVED FURTHER, that the Notes shall be issued as
Registered Securities (as defined in the Indenture) initially in
book-entry only form, represented by one or more global notes
registered in the name of The Depository Trust Company, or its
nominee, and eligible to trade through the facilities of Cedel
Bank, societe anonyme and Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear System, in
the manner requested by the Representatives (as defined in the
Underwriting Agreement), in denominations of $1,000 or integral
multiples thereof, and shall be dated the date of authentication
and delivery of the Initial Series of Notes, which date shall
occur on or about February 8, 1999 and the form of registered
note presented to this Committee and attached to the minutes
hereof as Exhibit A, together with such modifications as are
appropriate to reflect the determinations of the Committee, is
hereby in all respects approved;
RESOLVED FURTHER, that the Notes shall be executed in the
name of and on behalf of the Corporation by the Chief Executive
Officer, or any Senior or other Vice President, the corporate
seal thereon shall be attested by the Secretary or any Assistant
Secretary, and the signatures of the Chief Executive Officer, any
Vice President, the Secretary and any Assistant Secretary may be
in the form of facsimile signatures of the present or any future
Chief Executive Officer, Vice President, Secretary or Assistant
Secretary, and should any officer of the Corporation who signs,
or whose facsimile signature appears upon, any of the Notes,
cease to be such an officer prior to the issuance of such Notes,
the Notes so signed or bearing such facsimile signature shall,
nevertheless, be valid, and, without prejudice to the use of the
facsimile signatures of any other officer as hereinbefore
authorized, the facsimile signatures of Hugh L. McColl, Jr.,
Chief Executive Officer of the Corporation, John E. Mack, Senior
Vice President, James W. Kiser, Secretary of the Corporation, and
Allison Gilliam, Assistant Secretary, are hereby expressly
approved and accepted;
RESOLVED FURTHER, that pursuant to the provisions of the
Indenture, the Chief Executive Officer, the Chief Financial
Officer, any Senior Vice President or any Associate General
Counsel of the Corporation (each, an "Authorized Officer") be,
and each of them is, hereby authorized and empowered to cause the
Notes, upon execution thereof, to be delivered to the Trustee
under the Indenture, or to any agent designated by the Trustee,
for authentication and delivery by it and to deliver to said
Trustee or agent thereof, as the case may be, the written order
of the Corporation for the authentication and delivery of the
Notes and to negotiate, execute and deliver any and all
agreements and other documents and certificates necessary in
connection with the issuance, sale and delivery of the Notes;
RESOLVED FURTHER, that, unless and until otherwise
determined by an Authorized Officer, The Bank of New York hereby
initially is appointed the agent for the Corporation for the
registration, transfer, exchange and payment of the Notes (the
"Paying Agent"), and authorized to be appointed by the Trustee as
authenticating agent, and that the corporate trust office of the
Paying Agent located at 101 Barclay Street, New York, New York
10286, hereby is designated, pursuant to the provisions of the
Indenture, as the office or agency of the Corporation where the
Notes may be presented for registration, transfer, exchange and
payment, and any Authorized Officer or other proper officer of
the Corporation is hereby authorized and empowered to execute and
deliver any documents required by the Trustee under the
Indenture, or by the Paying Agent, with respect to such
appointment of The Bank of New York, or any other person as any
Authorized Officer shall determine, as Paying Agent for the
Corporation;
RESOLVED FURTHER, that whenever the Trustee or Paying Agent,
in its capacity as such, shall deem it expedient, it may apply to
counsel for the Corporation for advice or instructions, and, for
its actions and good faith in such capacity, including, but not
limited to, action in reliance on such advice or instructions or
on advice of its own counsel, the Corporation shall fully protect
and hold harmless that agent from and against any liability;
RESOLVED FURTHER, that any Authorized Officer is hereby
authorized and empowered to execute and deliver, and this
Committee hereby approves, the underwriting agreement (the
"Underwriting Agreement"), dated as of February 2, 1999 among the
Corporation and the Representatives (as defined therein), in the
form presented to the Committee and attached to the minutes
hereof as Exhibit B, relating, among other things, to the sale of
the Initial Series of Notes and to the indemnification of and
contribution to the Underwriters, and such Underwriting Agreement
shall be, and it hereby is, in all respects authorized and
approved, the execution thereof being conclusive evidence of such
approval;
RESOLVED FURTHER, that the listing of the Notes on the
Luxembourg Stock Exchange (the "LSE") is hereby authorized (but
shall not be required) and the appointment of Banque Generale du
Luxembourg as listing agent for such listing purposes is hereby
ratified, confirmed and approved;
RESOLVED FURTHER, that the officers of the Corporation,
including John E. Mack, Senior Vice President, and Melanie S.
Hood, Vice President, or any other Authorized Officer be, and
they hereby are authorized to take any and all steps necessary or
desirable to accomplish the LSE listing (or to withdraw such
application), including the preparation and filing of all
requisite applications, fee agreements and documents and the
payment of all applicable fees and expenses;
RESOLVED FURTHER, that the Corporation shall pay as
additional interest on the Notes such additional amounts
("Additional Amounts") as may be necessary in order that the net
payment by the Corporation of the principal of and interest on
the Notes to a holder who is a Non-United States Person (as
hereinafter defined), after deduction for any present or future
tax, assessment or governmental charge of the United States, or
a political subdivision or authority thereof or therein, imposed
by withholding with respect to the payment, will not be less than
the amount provided for in such Note to be then due and payable;
provided, however, that the foregoing obligation to pay
Additional Amounts shall not apply to:
(i) any tax, assessment or other governmental charge which
would not have been so imposed but for:
(a) the existence of any present or former connection
between such holder (or between a fiduciary, settlor,
beneficiary, member or stockholder of, or a person holding a
power over, such holder, if such holder is an estate, trust,
partnership or corporation) and the United States,
including, without limitation, such holder (or such
fiduciary, settlor, beneficiary, member, stockholder or
person holding a power) being or having been a citizen or
resident or treated as a resident thereof or being or having
been engaged in a trade or business therein or being or
having been present therein or having or having had a
permanent establishment therein;
(b) such holder's present or former status as a
personal holding company, foreign personal holding company,
passive foreign investment company, private foundation or
other tax-exempt entity or controlled foreign corporation
for United States tax purposes or a corporation which
accumulates earnings to avoid United States federal income
tax; or
(c) such holder's status as a bank extending credit
pursuant to a loan agreement entered into in the ordinary
course of business;
(ii) any tax, assessment or governmental charge that would
not have been imposed or withheld but for the failure of the
holder to comply with certification, identification or
information reporting requirements under United States income tax
laws, without regard to any tax treaty, with respect to the
payment, concerning the nationality, residence, identity or
connection with the United States of the holder or a beneficial
owner of such Note, if such compliance is required by United
States income tax laws, without regard to any tax treaty, as a
precondition to relief or exemption from such tax, assessment or
governmental charge;
(iii) any tax, assessment or governmental charge that
would not have been so imposed or withheld but for the
presentation by the holder of such Note for payment on a date
more than 30 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided
for, whichever occurs later;
(iv) any estate, inheritance, gift, sales, transfer, excise,
wealth or personal property tax or any similar tax, assessment or
governmental charge;
(v) any tax, assessment or governmental charge which is
payable otherwise than by withholding by the Corporation or the
Trustee from the payment of the principal of or interest on any
Note;
(vi) any tax, assessment or governmental charge required to
be withheld from such payment of principal of or interest on any
Note, if such payment can be made without such withholding or any
liability on the part of the Corporation;
(vii) any tax, assessment or other governmental charge
imposed on interest received by a person holding, actually or
constructively, 10% or more of the total combined voting power of
all classes of stock of the Corporation entitled to vote; or
(viii) any combination of items (i), (ii), (iii), (iv),
(v), (vi) or (vii);
nor shall Additional Amounts be paid with respect to any payment
of the principal of or interest on any Note to a person other
than the sole beneficial owner of such payment or that is a
partnership or fiduciary to the extent such beneficial owner,
member of such partnership or beneficiary or settlor with respect
to such fiduciary would not have been entitled to the payment of
Additional Amounts had such beneficial owner, member, beneficiary
or settlor held its interest in the Note directly.
"Non-United States Person" means any holder of the notes
other than a United States person. A "United States Person"
means a citizen or resident of the United States, a corporation
or a partnership (or other entity treated as a corporation or
partnership for federal income tax purposes, including certain
limited liability companies) created or organized under the laws
of the United States, an estate the income of which is subject to
United States federal income tax regardless of its source, or a
trust for which one or more United States persons have the
authority to control all substantial decisions and for which a
court of the United States can exercise primary supervision over
the trust's administration.
RESOLVED FURTHER, that the Notes may be redeemed at the
option of the Corporation in whole, but not in part, at any time,
on giving not less than 30 nor more than 60 days' notice to the
Trustee and the holders of the Notes, if the Corporation has or
may become obliged to pay Additional Amounts as a result of any
change in, or amendment to, the laws or regulations of the United
States or any political subdivision or any authority thereof or
therein having power to tax, or any change in the application or
official interpretation of such laws or regulations after the
date of the Global Prospectus Supplement;
Prior to the publication of any notice of redemption, the
Corporation shall deliver to the Trustee a certificate signed by
the Chief Financial Officer or a Senior Vice President of the
Corporation stating that the Corporation is entitled to effect
such redemption and setting forth a statement of facts showing
the conditions precedent to the right to redeem;
Notes so redeemed will be redeemed at 100% of their
principal amount together with interest accrued to (but
excluding) the date of redemption;
RESOLVED FURTHER, that any Authorized Officer is hereby
authorized and empowered to take all steps deemed necessary by
such officer to issue and sell the Initial Series and to increase
the amount of issued and outstanding Notes of this series, such
actions to include delivery of appropriate Officers Certificates
and Company Orders; the execution and delivery of additional
Notes; the selection of one or more underwriters and the
negotiation, execution and delivery of an appropriate
Underwriting Agreement; the preparation of necessary amendments
or supplements to the Prospectus Supplement for the Notes; and
the execution and delivery of necessary closing documents; and
RESOLVED FURTHER, that each of the officers of the
Corporation hereby is authorized and directed to do any and all
things necessary, appropriate or convenient to carry into effect
the foregoing resolutions.
BANK OF AMERICA
[LOGO]
NEWS RELEASE Bank of America Corporation
Investor Relations
100 North Tryon Street
NC1-007-56-01
Charlotte, NC 28255
FOR IMMEDIATE RELEASE
February 3, 1999
Contact: Bob Stickler 704-386-8465
BANKAMERICA OFFERS $1.5 BILLION IN 10-YEARS NOTES
Charlotte, February 3, 1999 -- BankAmerica Corporation has priced
a global offering of $1.5 billion in fixed-rate notes for sales
in the United States and abroad.
The ten-year senior notes will have a coupon of 5 7/8 per cent
per annum, payable semi-annually. The notes mature on February
15, 2009. Closing is scheduled for February 8, 1999.
The offering will be sold through underwriters led by NationsBanc
Montgomery Securities, LLC, and including Bear, Stearns & Co.
Inc., Lehman Brothers, Merrill Lynch & Co., and Salomon Smith
Barney. Junior co-managers of the offering are Blaylock &
Partners L.P., Interstate Johnson Lane Corporation, Utendahl
Capital Partners L.P and The Williams Capital Group, L.P.
The debt issue is part of a shelf registration for corporate debt
and other securities previously declared effective by the
Securities and Exchange Commission. Application has been made to
list the notes on the Luxembourg Stock Exchange.
Proceeds from the issue will be used for general corporate
purposes.
BankAmerica Corporation, with $618 billion in total assets, is
the largest bank in the United States. It has full service
operations in 22 states and the District of Columbia and provides
financial products and services to 30 million households and 2
million businesses, as well as providing international corporate
financial services for business transactions in 190 countries.
BankAmerica Corporation stock (ticker: BAC) is listed on the New
York, Pacific and London stock exchanges and certain shares are
listed on the Tokyo Stock Exchange.
www.bankamerica.com
www.nationsbank.com
