<PAGE>
As filed with the Securities and Exchange Commission on November 5, 1996
Reg. No. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
<TABLE>
<S> <C>
BANKAMERICA CAPITAL I
BANKAMERICA CAPITAL II
BANKAMERICA CAPITAL III
BANKAMERICA CAPITAL IV
BANKAMERICA CAPITAL V
BANKAMERICA CAPITAL VI
BANKAMERICA CAPITAL VII
BANKAMERICA CORPORATION BANKAMERICA CAPITAL VIII
(Exact name of registrant (Exact name of each registrant as specified
as specified in its charter) in its Trust Agreements)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of incorporation
incorporation or organization) or organization of each registrant)
94-1681731 EACH TO BE APPLIED FOR
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
C/O BANKAMERICA CORPORATION
555 CALIFORNIA STREET 555 CALIFORNIA STREET
SAN FRANCISCO, CALIFORNIA 94104 SAN FRANCISCO, CALIFORNIA 94104
(415) 622-3530 (415) 622-3530
(Address, including zip code, and telephone (Address, including zip code, and telephone
number, including area code, of number, including area code, of
registrant's principal executive offices) each registrant's principal executive offices)
</TABLE>
---------------
CHERYL SOROKIN
BANKAMERICA CORPORATION
BANK OF AMERICA CENTER
555 CALIFORNIA STREET
SAN FRANCISCO, CA 94104
(415) 622-3530
(Name, address, including zip code, and telephone number,
including area code, of agent for service of each registrant)
With copies to:
<TABLE>
<S> <C> <C>
DANA M. KETCHAM, ESQ. CAROLYN CHEW HAMILTON, ESQ. STANLEY F. FARRAR, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP BANK OF AMERICA NATIONAL TRUST SULLIVAN & CROMWELL
OLD FEDERAL RESERVE BANK BUILDING AND SAVINGS ASSOCIATION 444 SOUTH FLOWER STREET
400 SANSOME STREET 555 CALIFORNIA STREET LOS ANGELES, CALIFORNIA 90071
SAN FRANCISCO, CALIFORNIA 94111 SAN FRANCISCO, CALIFORNIA 94104 TEL: (213) 955-8000
TEL: (415) 392-1122 TEL: (415) 622-0943 FAX: (213) 683-0457
FAX: (415) 773-5759 FAX: (415) 622-6291
</TABLE>
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
---------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
---------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM
OFFERING PROPOSED
TITLE OF EACH CLASS OF AMOUNT PRICE MAXIMUM AMOUNT OF
SECURITIES TO BE TO BE PER AGGREGATE REGISTRATION
REGISTERED REGISTERED UNIT(1) OFFERING PRICE(1) FEE
- ---------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Junior Subordinated
Deferrable Interest
Debentures and Debt
Securities of
BankAmerica
Corporation(2)......... N/A
- ---------------------------------------------------------------------------------
Preferred Securities of
BankAmerica Capital I,
BankAmerica Capital II,
BankAmerica Capital
III,
BankAmerica Capital IV,
BankAmerica Capital V,
BankAmerica Capital VI,
BankAmerica Capital
VII,
BankAmerica Capital
VIII................... N/A
- ---------------------------------------------------------------------------------
BankAmerica Corporation
Guarantees with respect
to Preferred
Securities(3)(4)....... N/A
- ---------------------------------------------------------------------------------
Total(6)................ $1,500,000,000 100% $1,500,000,000(5) $454,545.46
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(o).
(2) The Junior Subordinated Deferrable Interest Debentures will be purchased
by BankAmerica Capital I, II, III, IV, V, VI, VII and VIII with the
proceeds of the sale of the Preferred Securities.
(3) No separate consideration will be received for the BankAmerica Corporation
Guarantee.
(4) This Registration Statement is deemed to cover the Junior Subordinated
Deferrable Interest Debentures of BankAmerica Corporation, the rights of
holders of Junior Subordinated Deferrable Interest Debentures of
BankAmerica Corporation under the Junior Subordinated Indenture, the
rights of holders of Preferred Securities of BankAmerica Capital I,
BankAmerica Capital II, BankAmerica Capital III, BankAmerica Capital IV,
BankAmerica Capital V, BankAmerica Capital VI, BankAmerica Capital VII and
BankAmerica Capital VIII, under each Trust Agreement, the rights of
holders of the Preferred Securities under the Guarantees, the Expense
Agreement entered into by BankAmerica Corporation and certain backup
undertakings as described herein.
(5) Or the equivalent thereof in one or more foreign currencies or composite
currencies, including European Currency Units.
(6) This Registration Statement also registers an indeterminate amount of
securities to be sold by BA Securities, Inc. in market making
transactions, where required.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. NEITHER THIS PROSPECTUS SUPPLEMENT NOR THE PROSPECTUS TO +
+WHICH IT RELATES SHALL CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN +
+OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN +
+WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO +
+REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 5, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1996
PREFERRED SECURITIES
BANKAMERICA CAPITAL I
% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES,
SERIES 1 (QUIPS/SM/)*
(LIQUIDATION AMOUNT $25 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED HEREIN, BY
BANKAMERICA CORPORATION
----------
The % Cumulative Quarterly Income Preferred Securities, Series 1 (the
"Series 1 QUIPS"), offered hereby represent beneficial interests in BankAmerica
Capital I, a trust created under the laws of the State of Delaware (the "Series
1 Issuer Trust"). BankAmerica Corporation, a Delaware corporation (the
"Corporation"), will be the owner of all of the beneficial interests
represented by common securities of the Series 1 Issuer Trust ("Series 1 Common
Securities" and, collectively with the Series 1 QUIPS, the "Series 1
Securities"). Bankers Trust Company is the Property Trustee of the Series 1
Issuer Trust. The Series 1
(Continued on next page)
----------
SEE "RISK FACTORS" BEGINNING ON PAGE S-4 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE SERIES 1 QUIPS.
----------
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND
OR ANY OTHER GOVERNMENTAL AGENCY.
----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS TO WHICH
IT RELATES. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------
<TABLE>
<CAPTION>
PROCEEDS TO
THE SERIES 1
INITIAL PUBLIC UNDERWRITING ISSUER
OFFERING PRICE COMMISSION(1)(3) TRUST(2)(4)
-------------- ---------------- ------------
<S> <C> <C> <C>
Per Preferred Security............. $ (2) $
Total.............................. $ (2) $
</TABLE>
- -----
(1) The Series 1 Issuer Trust and the Corporation have each agreed to indemnify
the several Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended. See "Underwriting."
(2) In view of the fact that the proceeds of the sale of the Series 1 QUIPS
will be invested in the Series 1 Subordinated Debentures, the Corporation
has agreed to pay to the Underwriters as compensation ("Underwriters'
Compensation") for their arranging the investment therein of such proceeds
$. per Series 1 QUIPS (or $ in the aggregate). See
"Underwriting."
(3) The Underwriting Commission will be $ per Series 1 QUIPS with
respect to Series 1 QUIPS that have been initially allocated for sale to
certain institutions. The estimated total Proceeds to the Series 1 Issuer
Trust and Underwriting Commission set forth above reflect that initial
allocation. The actual total Underwriting Commission and Proceeds to the
Series 1 Issuer Trust will depend on the number of Series 1 QUIPS that are
actually sold to institutions, which may be greater or less than the
initial allocation.
(4) Expenses of the offering, which are payable by the Corporation, are
estimated to be $ .
----------
This Prospectus Supplement and the related Prospectus may be used by BA
Securities, Inc., an affiliate of the Corporation and the Series 1 Issuer
Trust, in connection with offers and sales related to secondary market
transactions in the Series 1 QUIPS. BA Securities, Inc. may act as principal or
agent in such transactions. Such sales will be made at prices related to
prevailing market prices at the time of sale or otherwise.
The Series 1 QUIPS offered hereby are offered severally by the Underwriters,
as specified herein, subject to receipt and acceptance by them and subject to
their right to reject any order in whole or in part. It is expected that the
Series 1 QUIPS will be ready for delivery in book-entry form only through the
facilities of The Depository Trust Company in New York, New York, on or about
, 1996, against payment therefor in immediately available funds.
- -----
* "QUIPS" is a service mark of Goldman, Sachs & Co.
GOLDMAN, SACHS & CO.
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS , 1996.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SERIES 1
QUIPS AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
---------------
(cover page continued)
Issuer Trust exists for the sole purpose of issuing the Series 1 Securities
and investing the proceeds thereof in % Junior Subordinated Deferrable
Interest Debentures, Series 1 (the "Series 1 Subordinated Debentures"), to be
issued by the Corporation. The Series 1 Subordinated Debentures will mature on
, 2026, which date may be (i) shortened to a date not earlier than
, 2001 or (ii) extended to a date not later than ,
2045, in each case if certain conditions are met (including, in the case of a
shortening of the Stated Maturity (as defined herein), the Corporation having
received prior approval of the Board of Governors of the Federal Reserve
System (the "Federal Reserve") to do so if then required under applicable
capital guidelines or policies of the Federal Reserve). The Series 1 QUIPS
will have a preference under certain circumstances with respect to cash
distributions and amounts payable on liquidation, redemption or otherwise over
the Series 1 Common Securities. See "Description of Preferred Securities--
Subordination of Common Securities" in the accompanying Prospectus.
Holders of the Series 1 QUIPS will be entitled to receive preferential
cumulative cash distributions accumulating from the date of original issuance
and payable quarterly in arrears on the last day of March, June, September and
December of each year, commencing , 1997, at the annual rate of
% of the Liquidation Amount of $25 per Series 1 QUIPS ("Distributions").
The Corporation has the right to defer payment of interest on the Series 1
Subordinated Debentures at any time or from time to time for a period not
exceeding 20 consecutive quarters with respect to each deferral period (each,
an "Extension Period"), provided that no Extension Period may extend beyond
the Stated Maturity of the Series 1 Subordinated Debentures. Upon the
termination of any such Extension Period and the payment of all amounts then
due, the Corporation may elect to begin a new Extension Period subject to the
requirements set forth herein. If interest payments on the Series 1
Subordinated Debentures are so deferred, Distributions on the Series 1 QUIPS
will also be deferred and the Corporation will not be permitted, subject to
certain exceptions described herein, to declare or pay any cash distributions
with respect to the Corporation's capital stock or debt securities of the
Corporation that rank pari passu in all respects with or junior to the Series
1 Subordinated Debentures. During an Extension Period, interest on the Series
1 Subordinated Debentures will continue to accrue (and the amount of
Distributions to which holders of the Series 1 QUIPS are entitled will
accumulate) at the rate of % per annum, compounded quarterly, and holders
of Series 1 QUIPS will be required to accrue interest income for United States
federal income tax purposes. See "Certain Terms of Series 1 Subordinated
Debentures--Option to Extend Interest Payment Period" and "Certain Federal
Income Tax Consequences--Original Issue Discount."
The Corporation has, through the Series 1 Guarantee, the Trust Agreement,
the Series 1 Subordinated Debentures, the Junior Subordinated Indenture and
the Expense Agreement (each as defined herein), taken together, fully,
irrevocably and unconditionally guaranteed all of the Series 1 Issuer Trust's
obligations under the Series 1 QUIPS. See "Relationship Among the Preferred
Securities, the Corresponding Junior Subordinated Debentures and the
Guarantees--Full and Unconditional Guarantee" in the accompanying Prospectus.
The Series 1 Guarantee of the Corporation guarantees the payment of
Distributions and payments on liquidation or redemption of the Series 1 QUIPS,
but only in each case to the extent of funds held by the Series 1 Issuer
Trust, as described herein (the "Series 1 Guarantee"). See "Description of
Guarantees" in the accompanying Prospectus. If the Corporation does not make
interest payments on the Series 1 Subordinated Debentures held by the Series 1
Issuer Trust, the Series 1 Issuer Trust will have insufficient funds to pay
Distributions on the Series 1 QUIPS. The Series 1 Guarantee does not cover
payment of Distributions when the Series 1 Issuer Trust does not have
sufficient funds to pay such
S-2
<PAGE>
(cover page continued)
Distributions. In such event, a holder of Series 1 QUIPS may institute a legal
proceeding directly against the Corporation to enforce payment of such
Distributions to such holder. See "Description of Junior Subordinated
Debentures--Enforcement of Certain Rights By Holders of Preferred Securities"
in the accompanying Prospectus. The obligations of the Corporation under the
Series 1 Guarantee and the Series 1 QUIPS are subordinate and junior in right
of payment to all Senior Indebtedness (as defined in "Description of Junior
Subordinated Debentures--Subordination" in the accompanying Prospectus) of the
Corporation.
The Series 1 QUIPS are subject to mandatory redemption, in whole or in part,
upon repayment of the Series 1 Subordinated Debentures at maturity or their
earlier redemption. Subject to the Corporation having received prior approval
of the Federal Reserve to do so if then required under applicable capital
guidelines or policies of the Federal Reserve, the Series 1 Subordinated
Debentures are redeemable prior to maturity at the option of the Corporation
(i) on or after , 2001, in whole at any time or in part from
time to time, or (ii) in whole (but not in part) at any time within 90 days
following the occurrence of a Tax Event (as defined herein), in each case at a
redemption price equal to the accrued and unpaid interest on the Series 1
Subordinated Debentures so redeemed to the date fixed for redemption, plus
100% of the principal amount thereof. See "Certain Terms of Series 1 QUIPS--
Redemption."
The Corporation will have the right at any time to terminate the Series 1
Issuer Trust and, after satisfaction of liabilities to creditors of the Series
1 Issuer Trust as required by applicable law, cause the Series 1 Subordinated
Debentures to be distributed to the holders of the Series 1 QUIPS in
liquidation of the Series 1 Issuer Trust, subject to the Corporation having
received prior approval of the Federal Reserve to do so if then required under
applicable capital guidelines or policies of the Federal Reserve. See "Certain
Terms of Series 1 QUIPS--Liquidation of Series 1 Issuer Trust and Distribution
of Series 1 Subordinated Debentures to Holders."
The Series 1 Subordinated Debentures are unsecured and subordinated to all
Senior Indebtedness. See "Risk Factors--Ranking of Subordinated Obligations
Under the Series 1 Guarantee and the Series 1 Subordinated Debentures."
In the event of the termination of the Series 1 Issuer Trust, after
satisfaction of liabilities to creditors of the Series 1 Issuer Trust as
required by applicable law, the holders of the Series 1 QUIPS will be entitled
to receive a Liquidation Amount of $25 per Series 1 QUIPS plus accumulated and
unpaid Distributions thereon to the date of payment, which may be in the form
of a distribution of such amount in Series 1 Subordinated Debentures, subject
to certain exceptions. See "Description of Preferred Securities--Liquidation
Distribution Upon Termination" in the accompanying Prospectus.
Application will be made to list the Series 1 QUIPS on the New York Stock
Exchange under the symbol " ". If the Series 1 Subordinated Debentures
are distributed to the holders of Series 1 QUIPS upon the liquidation of the
Series 1 Issuer Trust, the Corporation will use its best efforts to list the
Series 1 Subordinated Debentures on the New York Stock Exchange or such other
stock exchanges or other automated quotation systems, if any, on which the
Series 1 QUIPS are then listed or traded.
The Series 1 QUIPS will be represented by global certificates registered in
the name of The Depository Trust Company ("DTC") or its nominee. Beneficial
interests in the Series 1 QUIPS will be shown on, and transfers thereof will
be effected only through, records maintained by participants in DTC. Except as
described in the accompanying Prospectus, Series 1 QUIPS in certificated form
will not be issued in exchange for the global certificates. See "Book-Entry
Issuance" in the accompanying Prospectus.
S-3
<PAGE>
The information in this Prospectus Supplement supplements and should be read
in conjunction with the information contained in the accompanying Prospectus.
As used herein, (i) the Junior Subordinated Indenture means the Junior
Subordinated Indenture, as amended and supplemented from time to time, between
the Corporation and Bankers Trust Company, as trustee (the "Debenture
Trustee"), and (ii) the "Trust Agreement" means the Amended and Restated Trust
Agreement relating to the Series 1 Issuer Trust among the Corporation, as
Depositor, Bankers Trust Company, as Property Trustee (the "Property
Trustee"), Bankers Trust (Delaware), as Delaware Trustee (the "Delaware
Trustee"), and the Administrative Trustees named therein (collectively, with
the Property Trustee and Delaware Trustee, the "Issuer Trustees"). Each of the
other capitalized terms used in this Prospectus Supplement and not otherwise
defined in this Prospectus Supplement has the meaning set forth in the
accompanying Prospectus.
RISK FACTORS
Prospective purchasers of the Series 1 QUIPS should carefully review the
information contained elsewhere in this Prospectus Supplement and in the
accompanying Prospectus and should particularly consider the following
matters.
RANKING OF SUBORDINATED OBLIGATIONS UNDER THE SERIES 1 GUARANTEE AND THE
SERIES 1 SUBORDINATED DEBENTURES
The obligations of the Corporation under the Series 1 Guarantee issued by
the Corporation for the benefit of the holders of Series 1 QUIPS and under the
Series 1 Subordinated Debentures are subordinate and junior in right of
payment to all Senior Indebtedness of the Corporation. At September 30, 1996,
the aggregate outstanding Senior Indebtedness of the Corporation was
approximately $ billion. Because the Corporation is a holding company,
the right of the Corporation to participate in any distribution of assets of
any subsidiary, including Bank of America National Trust and Savings
Association, Bank of America Illinois and Bank of America NW, National
Association, upon such subsidiary's liquidation or reorganization or otherwise
(and thus the ability of holders of the Series 1 QUIPS to benefit indirectly
from such distribution), is subject to the prior claims of creditors of that
subsidiary, except to the extent that the Corporation may itself be recognized
as a creditor of that subsidiary. In addition, there are also various legal
limitations on the extent to which the Corporation's depository subsidiaries
may extend credit, pay dividends or otherwise supply funds to the Corporation
or various of its affiliates. Accordingly, the Series 1 Subordinated
Debentures will be effectively subordinated to all existing and future
liabilities of the Corporation's subsidiaries, and holders of Series 1
Subordinated Debentures should look only to the assets of the Corporation for
payments on the Series 1 Subordinated Debentures. See "BankAmerica
Corporation." None of the Junior Subordinated Indenture, the Series 1
Guarantee or the Trust Agreement places any limitation on the amount of
secured or unsecured debt, including Senior Indebtedness, that may be incurred
by the Corporation. See "Description of Guarantees--Status of the Guarantees"
and "Description of Junior Subordinated Debentures--Subordination" in the
accompanying Prospectus.
The ability of the Series 1 Issuer Trust to pay amounts due on the Series 1
QUIPS is solely dependent upon the Corporation making payments on the Series 1
Subordinated Debentures as and when required.
OPTION TO EXTEND INTEREST PAYMENT PERIOD; TAX CONSEQUENCES
So long as no Event of Default under the Junior Subordinated Indenture has
occurred or is continuing, the Corporation has the right under the Junior
Subordinated Indenture to defer the payment of interest on the Series 1
Subordinated Debentures at any time or from time to time for a period not
exceeding 20 consecutive quarters with respect to each Extension Period,
provided that no Extension
S-4
<PAGE>
Period may extend beyond the Stated Maturity of the Series 1 Subordinated
Debentures. As a consequence of any such deferral, quarterly Distributions on
the Series 1 QUIPS by the Series 1 Issuer Trust will be deferred (and the
amount of Distributions to which holders of the Series 1 QUIPS are entitled
will accumulate additional Distributions thereon at the rate of % per
annum, compounded quarterly from the relevant payment date for such
Distributions) during any such Extension Period. During any such Extension
Period, the Corporation may not, and may not permit any subsidiary of the
Corporation to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Corporation's capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including other Junior Subordinated Debentures)
that rank pari passu in all respects with or junior in interest to the Series
1 Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Corporation of the debt securities of any subsidiary of the
Corporation if such guarantee ranks pari passu with or junior in interest to
the Series 1 Subordinated Debentures (other than (a) dividends or
distributions in common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under any
Guarantee and (d) purchases of common stock related to the issuance of common
stock or rights under any of the Corporation's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Corporation may further defer the payment of interest,
provided that no Extension Period may exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the Series 1 Subordinated Debentures. Upon the
termination of any Extension Period and the payment of all interest then
accrued and unpaid (together with interest thereon at the annual rate of %,
compounded quarterly, to the extent permitted by applicable law), the
Corporation may elect to begin a new Extension Period subject to the above
requirements. There is no limitation on the number of times that the
Corporation may elect to begin an Extension Period. See "Certain Terms of
Series 1 QUIPS--Distributions" and "Certain Terms of Series 1 Subordinated
Debentures--Option to Extend Interest Payment Period."
Should an Extension Period occur, a holder of Series 1 QUIPS will continue
to accrue income (in the form of original issue discount) in respect of its
pro rata share of the Series 1 Subordinated Debentures held by the Series 1
Issuer Trust for United States federal income tax purposes. As a result, a
holder of Series 1 QUIPS will include such income in gross income for United
States federal income tax purposes in advance of the receipt of cash, and will
not receive the cash related to such income from the Series 1 Issuer Trust if
the holder disposes of the Series 1 QUIPS prior to the record date for the
payment of Distributions. See "Certain Federal Income Tax Consequences--
Original Issue Discount" and "--Sales or Redemption of Series 1 QUIPS."
The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series 1
Subordinated Debentures. However, should the Corporation elect to exercise
such right in the future, the market price of the Series 1 QUIPS is likely to
be affected. A holder that disposes of its Series 1 QUIPS during an Extension
Period, therefore, might not receive the same return on its investment as a
holder that continues to hold its Series 1 QUIPS. In addition, as a result of
the existence of the Corporation's right to defer interest payments, the
market price of the Series 1 QUIPS (which represent preferred beneficial
interests in the Series 1 Issuer Trust) may be more volatile than the market
prices of other securities on which original issue discount accrues that are
not subject to such deferrals.
TAX EVENT REDEMPTION
Upon the occurrence and during the continuation of a Tax Event, the
Corporation has the right to redeem the Series 1 Subordinated Debentures in
whole (but not in part) within 90 days following the occurrence of such Tax
Event and therefore cause a mandatory redemption of the Series 1 QUIPS
S-5
<PAGE>
before, as well as after, , 2001. The exercise of such right is
subject to the Corporation having received prior approval of the Federal
Reserve to do so if then required under applicable capital guidelines or
policies of the Federal Reserve.
A "Tax Event" means the receipt by the Series 1 Issuer Trust of an opinion
of counsel to the Corporation experienced in such matters to the effect that,
as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, or
as a result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change
is effective or which pronouncement or decision is announced on or after the
date of issuance of the Series 1 QUIPS under the Trust Agreement, there is
more than an insubstantial risk that (i) the Series 1 Issuer Trust is, or will
be within 90 days of the date of such opinion, subject to United States
Federal income tax with respect to income received or accrued on the Series 1
Subordinated Debentures, (ii) interest payable by the Corporation on the
Series 1 Subordinated Debentures is not, or within 90 days of such opinion,
will not be, deductible by the Corporation, in whole or in part, for United
States Federal income tax purposes, or (iii) the Series 1 Issuer Trust is, or
will be within 90 days of the date of the opinion, subject to more than a de
minimis amount of other taxes, duties or other governmental charges.
See "Risk Factors--Possible Tax Law Changes Affecting the Series 1 QUIPS"
for a discussion of certain legislative proposals that, if adopted, could give
rise to a Tax Event, which may permit the Corporation to cause a redemption of
the Series 1 QUIPS prior to , 2001.
EXCHANGE OF SERIES 1 QUIPS FOR SERIES 1 SUBORDINATED DEBENTURES
The Corporation will have the right at any time to terminate the Series 1
Issuer Trust and cause the Series 1 Subordinated Debentures to be distributed
to the holders of the Series 1 QUIPS in liquidation of the Series 1 Issuer
Trust. The exercise of such right is subject to the Corporation having
received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. See "Certain
Terms of Series 1 QUIPS--Liquidation of Series 1 Issuer Trust and Distribution
of Series 1 Subordinated Debentures to Holders."
EXTENSION OF STATED MATURITY OF SERIES 1 SUBORDINATED DEBENTURES
The Corporation will also have the right to extend the maturity of the
Series 1 Subordinated Debentures, whether or not the Series 1 Issuer Trust is
terminated and the Series 1 Subordinated Debentures are distributed to holders
of the Series 1 QUIPS, to a date no later than the 49th anniversary of the
initial issuance of the Series 1 QUIPS, provided that the Corporation can
extend the maturity only if at the time such election is made and at the time
of such extension (i) the Corporation is not in bankruptcy, otherwise
insolvent or in liquidation, (ii) the Corporation is not in default in the
payment of any interest or principal on the Series 1 Subordinated Debentures,
(iii) the Series 1 Issuer Trust is not in arrears on payments of Distributions
on the Series 1 QUIPS and no deferred Distributions are accumulated and (iv)
the Series 1 Subordinated Debentures are rated not less than BBB- by Standard
& Poor's Ratings Services or Baa3 by Moody's Investors Service, Inc. or the
equivalent by any other nationally recognized statistical rating organization.
S-6
<PAGE>
MARKET PRICES
There can be no assurance as to the market prices for Series 1 QUIPS or
Series 1 Subordinated Debentures that may be distributed in exchange for
Series 1 QUIPS if a liquidation of the Series 1 Issuer Trust occurs.
Accordingly, the Series 1 QUIPS that an investor may purchase, whether
pursuant to the offer made hereby or in the secondary market, or the Series 1
Subordinated Debentures that a holder of Series 1 QUIPS may receive on
liquidation of the Series 1 Issuer Trust, may trade at a discount to the price
that the investor paid to purchase the Series 1 QUIPS offered hereby. In
addition, because the Corporation has the right (i) to shorten the Stated
Maturity of the Series 1 Subordinated Debentures (subject to prior approval of
the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve) or (ii) to extend the maturity of the Series
1 Subordinated Debentures (subject to the conditions described above), there
can be no assurance that the Corporation will not exercise its option to
change the maturity of the Series 1 Subordinated Debentures as permitted by
the terms thereof and of the Junior Subordinated Indenture. Because holders of
Series 1 QUIPS may receive Series 1 Subordinated Debentures on termination of
the Series 1 Issuer Trust, prospective purchasers of Series 1 QUIPS are also
making an investment decision with regard to the Series 1 Subordinated
Debentures and should carefully review all the information regarding the
Series 1 Subordinated Debentures contained herein. See "Certain Terms of the
Series 1 Subordinated Debentures" and "Description of Junior Subordinated
Debentures--Corresponding Junior Subordinated Debentures" in the accompanying
Prospectus.
RIGHTS UNDER THE SERIES 1 GUARANTEE
The Series 1 Guarantee will be qualified as an indenture under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). Bankers Trust
Company will act as the indenture trustee under the Series 1 Guarantee (the
"Guarantee Trustee") for the purposes of compliance with the Trust Indenture
Act and will hold the Series 1 Guarantee for the benefit of the holders of the
Series 1 QUIPS. Bankers Trust Company will also act as Debenture Trustee for
the Series 1 Subordinated Debentures and as Property Trustee and Bankers Trust
(Delaware) will act as Delaware Trustee under the Trust Agreement. The Series
1 Guarantee guarantees to the holders of the Series 1 QUIPS the following
payments, to the extent not paid by the Series 1 Issuer Trust: (i) any accrued
and unpaid Distributions required to be paid on the Series 1 QUIPS, to the
extent that the Series 1 Issuer Trust has funds on hand available therefor at
such time, (ii) the redemption price with respect to any Series 1 QUIPS called
for redemption, to the extent that the Series 1 Issuer Trust has funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
termination, winding-up or liquidation of the Series 1 Issuer Trust (unless
the Series 1 Subordinated Debentures are distributed to holders of the Series
1 QUIPS), the lesser of (a) the aggregate of the Liquidation Amount and all
accrued and unpaid Distributions to the date of payment to the extent that the
Series 1 Issuer Trust has funds on hand available therefor at such time and
(b) the amount of assets of the Series 1 Issuer Trust remaining available for
distribution to holders of the Series 1 QUIPS on liquidation of the Series 1
Issuer Trust. The Series 1 Guarantee is subordinate as described under "--
Ranking of Subordinated Obligations Under the Series 1 Guarantee and the
Series 1 Subordinated Debentures." The holders of not less than a majority in
aggregate liquidation amount of the Series 1 QUIPS have the right to direct
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of the Series 1 Guarantee or to
direct the exercise of any trust power conferred upon the Guarantee Trustee
under the Series 1 Guarantee. Any holder of the Series 1 QUIPS may institute a
legal proceeding directly against the Corporation to enforce its rights under
the Series 1 Guarantee without first instituting a legal proceeding against
the Series 1 Issuer Trust, the Guarantee Trustee or any other person or
entity. If the Corporation were to default on its obligation to pay amounts
payable under the Series 1 Subordinated Debentures, the Series 1 Issuer Trust
would lack funds for the payment of Distributions or amounts payable on
redemption of the Series 1 QUIPS or otherwise, and, in such event, holders of
the Series 1 QUIPS would not be able to rely upon the Series 1 Guarantee for
payment of such amounts. Instead, in the event a Debenture Event of Default
shall have occurred
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and be continuing and such event is attributable to the failure of the
Corporation to pay interest on or principal of the Series 1 Subordinated
Debentures on the payment date on which such payment is due and payable, then
a holder of Series 1 QUIPS may institute a legal proceeding directly against
the Corporation for enforcement of payment to such holder of the principal of
or interest on such Series 1 Subordinated Debentures having a principal amount
equal to the aggregate Liquidation Amount of the Series 1 QUIPS of such holder
(a "Direct Action"). In connection with such Direct Action, the Corporation
will have a right of set-off under the Junior Subordinated Indenture to the
extent of any payment made by the Corporation to such holder of Series 1 QUIPS
in the Direct Action. Except as described herein, holders of Series 1 QUIPS
will not be able to exercise directly any other remedy available to the
holders of the Series 1 Subordinated Debentures or assert directly any other
rights in respect of the Series 1 Subordinated Debentures. See "Description of
Junior Subordinated Debentures--Enforcement of Certain Rights by Holders of
Preferred Securities," "--Debenture Events of Default" and "Description of
Guarantees" in the accompanying Prospectus. The Trust Agreement provides that
each holder of Series 1 QUIPS by acceptance thereof agrees to the provisions
of the Series 1 Guarantee and the Junior Subordinated Indenture.
LIMITED VOTING RIGHTS
Holders of Series 1 QUIPS will generally have limited voting rights relating
only to the modification of the Series 1 QUIPS and the exercise of the Series
1 Issuer Trust's rights as holder of Series 1 Subordinated Debentures and the
Guarantees. Holders of Series 1 QUIPS will not be entitled to vote to appoint,
remove or replace the Property Trustee or the Delaware Trustee, and such
voting rights are vested exclusively in the holder of the Series 1 Common
Securities except upon the occurrence of certain events described herein. The
Property Trustee, the Administrative Trustees and the Corporation may amend
the Trust Agreement without the consent of holders of Series 1 QUIPS to ensure
that the Series 1 Issuer Trust will be classified for United States federal
income tax purposes as a grantor trust even if such action adversely affects
the interests of such holders. See "Description of Preferred Securities--
Voting Rights; Amendment of Each Trust Agreement" and "--Removal of Issuer
Trustees" in the accompanying Prospectus.
TRADING CHARACTERISTICS OF SERIES 1 QUIPS
Application will be made to list the Series 1 QUIPS on the New York Stock
Exchange. The Series 1 QUIPS may trade at prices that do not fully reflect the
value of accrued but unpaid interest with respect to the underlying Series 1
Subordinated Debentures. A holder of Series 1 QUIPS that disposes of its
Series 1 QUIPS could recognize a capital loss even though the total selling
price exceeds the holder's purchase price. Subject to certain limited
exceptions, capital losses cannot be applied to offset ordinary income for
United States federal income tax purposes. See "Certain Federal Income Tax
Consequences--Sales or Redemption of Series 1 QUIPS."
As indicated above, application will be made to list the Series 1 QUIPS on
the New York Stock Exchange. If the Series 1 QUIPS are not listed on a
national securities exchange or the NASDAQ National Market and the
underwriters do not make a market for the securities, the liquidity of the
Series 1 QUIPS could be adversely affected.
POSSIBLE TAX LAW CHANGES AFFECTING THE SERIES 1 QUIPS
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"), the
revenue portion of President Clinton's budget proposal, was released. The Bill
would, among other things, generally deny interest deductions for interest on
an instrument issued by a corporation that has a maximum weighted average
maturity of more than 40 years. The Bill would also generally deny interest
deductions for interest on an instrument, issued by a corporation, that has a
maximum term of more than 20 years and that is not shown as indebtedness on
the separate balance sheet of the issuer or, where the
S-8
<PAGE>
instrument is issued to a related party (other than a corporation), where the
holder or some other related party issues a related instrument that is not
shown as indebtedness on the issuer's consolidated balance sheet. If either
provision were to apply to the Series 1 Subordinated Debentures, the
Corporation would be unable to deduct interest on the Series 1 Subordinated
Debentures. On March 29, 1996, the Chairmen of the Senate Finance and House
Ways and Means Committees issued a joint statement to the effect that it was
their intention that the effective date of the President's legislative
proposals, if adopted, will be no earlier than the date of appropriate
Congressional action. Under current law, the Corporation will be able to
deduct interest on the Series 1 Subordinated Debentures. There can be no
assurance, however, that current or future legislative proposals or final
legislation will not affect the ability of the Corporation to deduct interest
on the Series 1 Subordinated Debentures. Such a change could give rise to a
Tax Event, which may permit the Corporation, upon approval of the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve, to cause a redemption of the Series 1 QUIPS before, as
well as after, , 2001. See "Certain Terms of Series 1 Subordinated
Debentures--Redemption" in this Prospectus Supplement and "Description of
Preferred Securities--Redemption or Exchange--Tax Event Redemption" in the
accompanying Prospectus. See also "Certain Federal Income Tax Consequences--
Possible Tax Law Changes."
BANKAMERICA CAPITAL I
BankAmerica Capital I is a statutory business trust created under Delaware
law pursuant to (i) the Trust Agreement executed by the Corporation, as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust
(Delaware), Delaware Trustee, and the Administrative Trustees named therein,
and (ii) the filing of a certificate of trust with the Delaware Secretary of
State on November 4, 1996. The Series 1 Issuer Trust's business and affairs
are conducted by the Issuer Trustees: Bankers Trust Company, as Property
Trustee, and Bankers Trust (Delaware), Delaware Trustee, and three individual
Administrative Trustees who are employees or officers of or affiliated with
the Corporation. The Series 1 Issuer Trust exists for the exclusive purposes
of (i) issuing and selling the Series 1 Securities, (ii) using the proceeds
from the sale of Series 1 Securities to acquire Series 1 Subordinated
Debentures issued by the Corporation and (iii) engaging in only those other
activities necessary, convenient or incidental thereto (such as registering
the transfer of the Series 1 Securities). Accordingly, the Series 1
Subordinated Debentures and the right to reimbursement of expenses under the
related Expense Agreement will be the sole assets of the Series 1 Issuer
Trust, and payments under the Series 1 Subordinated Debentures and the related
Expense Agreement will be the sole revenue of the Series 1 Issuer Trust. All
of the Series 1 Common Securities will be owned by the Corporation. The Series
1 Common Securities will rank pari passu, and payments will be made thereon
pro rata, with the Series 1 QUIPS, except that upon the occurrence and
continuance of an event of default under the Trust Agreement resulting from an
Event of Default under the Junior Subordinated Indenture, the rights of the
Corporation as holder of the Series 1 Common Securities to payment in respect
of Distributions and payments upon liquidation, redemption or otherwise will
be subordinated to the rights of the holders of the Series 1 QUIPS. See
"Description of Preferred Securities--Subordination of Common Securities" in
the accompanying Prospectus. The Corporation will acquire Series 1 Common
Securities in an aggregate liquidation amount equal to 3% of the total capital
of the Series 1 Issuer Trust. The Series 1 Issuer Trust has a term of 55
years, but may terminate earlier as provided in the Trust Agreement. The
principal executive office of the Series 1 Issuer Trust is 555 California
Street, San Francisco, California 94104, Attention: Secretary, and its
telephone number is (415) 622-3530. See "The Issuer Trusts" in the
accompanying Prospectus.
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<PAGE>
BANKAMERICA CORPORATION
The Corporation is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), and was incorporated in the
State of Delaware in 1968. At September 30, 1996, the Corporation was one of
the three largest bank holding companies in the United States, based on total
assets.
The Corporation's largest subsidiaries, based on total assets, are Bank of
America National Trust and Savings Association ("Bank of America"), Bank of
America Illinois ("BAI"), and Bank of America NW, National Association,
formerly Seattle-First National Bank ("BANW").
Bank of America became a subsidiary of the Corporation in 1969. Bank of
America began business in San Francisco, California, as Bank of Italy in 1904
and adopted its present name in 1930. BAI, headquartered in Chicago, Illinois,
was acquired by the Corporation in 1994. BANW, the largest commercial bank in
Washington based on total assets at September 30, 1996, was acquired by the
Corporation in 1983.
The Corporation, through its network of subsidiaries, provides banking and
other financial services throughout the United States and in selected
international markets to consumers and business customers, including
corporations, governments and other institutions.
The Corporation's principal executive offices are located at 555 California
Street, San Francisco, California 94104 (telephone (415) 622-3530).
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for the Corporation including its
consolidated subsidiaries is computed by dividing earnings by fixed charges.
Earnings consist primarily of income (loss) before income taxes adjusted for
fixed charges. Fixed charges consist primarily of interest expense on short-
and long-term borrowings and one-third (the portion deemed representative of
the interest factor) of net rents under long-term leases.
The following table sets forth the ratio of earnings to fixed charges for
the Corporation and its consolidated subsidiaries for the periods indicated
and reflects the effects of the merger of Continental Bank Corporation with
and into the Corporation subsequent to its consummation on August 31, 1994 and
the effects of the merger of Security Pacific Corporation with and into the
Corporation subsequent to its consummation on April 22, 1992.
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- ------------------------
1996 1995 1995 1994 1993 1992 1991
------ ------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
RATIO OF EARNINGS TO FIXED CHARGES
Excluding interest on deposits.......... 2.72 2.75 2.77 3.26 3.55 3.18 3.25
Including interest on deposits.......... 1.60 1.61 1.61 1.74 1.79 1.53 1.34
</TABLE>
S-10
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Corporation and its subsidiaries as of September 30, 1996 and as adjusted to
give effect to the consummation of the offering of the Series 1 QUIPS. The
following data should be read in conjunction with the consolidated financial
statements and notes thereto of the Corporation and its subsidiaries
incorporated herein by reference.
<TABLE>
<CAPTION>
SEPTEMBER 30,
1996
-----------------
AS
ACTUAL ADJUSTED
------- --------
(DOLLAR AMOUNTS IN MILLIONS)
<S> <C> <C>
Long-Term Debt:
Senior Debt
The Corporation............................................. $ 8,244 $ 8,244
Subsidiary obligations...................................... 415 415
======= =======
8,659 8,659
------- -------
Subordinated Debt
The Corporation............................................. 5,986 5,986
Subsidiary obligations...................................... 454 454
------- -------
6,440 6,440
------- -------
Total Long-Term Debt...................................... 15,099 15,099
------- -------
Subordinated Capital Notes(a)................................. 355 355
------- -------
Corporation Obligated Mandatorily Redeemable Preferred Securi-
ties of Subsidiary Trust Holding Solely Junior Subordinated
Deferrable Interest Debentures of the Corporation............ --
Preferred Stock (authorized: 70,000,000 shares;
issued: 36,538,239 shares)................................... 2,242 2,242
------- -------
Common Stockholders' Equity:
Common stock, par value $1.5625 (authorized: 700,000,000
shares; issued: 387,291,562 shares)........................ 605 605
Additional paid-in capital.................................. 8,458 8,458
Retained earnings........................................... 10,989 10,989
Net unrealized loss on available-for-sale securities........ (27) (27)
Common stock in treasury, at cost (28,465,838 shares)....... (1,755) (1,755)
------- -------
Total Common Stockholders' Equity......................... 18,270 18,270
------- -------
Total Capitalization of the Corporation(b)............... $35,966 $
======= =======
</TABLE>
- --------
(a) Issuances of common and preferred stock of $350 million have been
dedicated to retire or redeem subordinated capital notes.
(b) Subsequent to September 30, 1996, the capitalization of the Corporation
and its consolidated subsidiaries has been affected by various issuances,
redemptions, repurchases and maturities which are not reflected in this
table.
S-11
<PAGE>
ACCOUNTING TREATMENT
For financial reporting purposes, the Series 1 Issuer Trust will be treated
as a subsidiary of the Corporation and, accordingly, the accounts of the
Series 1 Issuer Trust will be included in the consolidated financial
statements of the Corporation. The Series 1 QUIPS will be presented as a
separate line item in the consolidated balance sheets of the Corporation,
entitled "Corporation Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trust Holding Solely Junior Subordinated Deferrable Interest
Debentures of the Corporation" and appropriate disclosures about the Series 1
QUIPS, the Series 1 Guarantee and the Series 1 Subordinated Debentures will be
included in the notes to the consolidated financial statements. For financial
reporting purposes, the Corporation will record Distributions payable on the
Series 1 QUIPS as an expense in the consolidated statements of income.
CERTAIN TERMS OF SERIES 1 QUIPS
GENERAL
The following summary of certain terms and provisions of the Series 1 QUIPS
supplements the description of the terms and provisions of the Preferred
Securities set forth in the accompanying Prospectus under the heading
"Description of Preferred Securities," to which description reference is
hereby made. This summary of certain terms and provisions of the Series 1
QUIPS does not purport to be complete and is subject to, and qualified in its
entirety by reference to, the Trust Agreement. The form of the Trust Agreement
has been filed as an exhibit to the Registration Statement of which this
Prospectus Supplement and accompanying Prospectus form a part.
DISTRIBUTIONS
The Series 1 QUIPS represent beneficial interests in the Series 1 Issuer
Trust, and Distributions on each Series 1 QUIPS will be payable at the annual
rate of % of the stated Liquidation Amount of $25, payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year, to
the holders of the Series 1 QUIPS on the relevant record dates. The record
dates will be, for so long as the Series 1 QUIPS remain in book-entry form,
one Business Day prior to the relevant Distribution payment date and, in the
event the Series 1 QUIPS are not in book-entry form, the 15th day of the month
in which the relevant Distribution payment date occurs. Distributions will
accumulate from the date of original issuance. The first Distribution payment
date for the Series 1 QUIPS will be , 1997. The amount of
Distributions payable for any period less than a full Distribution period will
be computed on the basis of a 360-day year of twelve 30-day months and the
actual days elapsed in a partial month in a period. Distributions payable for
each full Distribution period will be computed by dividing the rate per annum
by four. In the event that any date on which Distributions are payable on the
Series 1 QUIPS is not a Business Day, then payment of the Distributions
payable on such date will be made on the next succeeding day that is a
Business Day (and without any additional Distributions or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable. See "Description of Preferred
Securities--Distributions" in the accompanying Prospectus.
So long as no Event of Default under the Junior Subordinated Indenture has
occurred and is continuing, the Corporation has the right under the Junior
Subordinated Indenture to defer the payment of interest on the Series 1
Subordinated Debentures at any time or from time to time for a period not
exceeding 20 consecutive quarters with respect to each Extension Period,
provided that no Extension Period may extend beyond the Stated Maturity of the
Series 1 Subordinated Debentures. As a consequence of any such election,
quarterly Distributions on the Series 1 QUIPS will be deferred by the Series 1
Issuer Trust during any such Extension Period. Distributions to which holders
of the
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<PAGE>
Series 1 QUIPS are entitled will accumulate additional Distributions thereon
at the rate per annum of % thereof, compounded quarterly from the relevant
payment date for such Distributions, computed on the basis of a 360-day year
of twelve 30-day months and the actual days elapsed in a partial month in a
period. Additional Distributions payable for each full Distribution period
will be computed by dividing the rate per annum by four. The term
"Distributions" as used herein shall include any such additional
Distributions. During any such Extension Period, the Corporation may not, and
may not permit any subsidiary of the Corporation to, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Corporation's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Corporation (including other
Junior Subordinated Debentures) that rank pari passu in all respects with or
junior in interest to the Series 1 Subordinated Debentures or make any
guarantee payments with respect to any guarantee by the Corporation of the
debt securities of any subsidiary of the Corporation if such guarantee ranks
pari passu with or junior in interest to the Series 1 Subordinated Debentures
(other than (a) dividends or distributions in common stock of the Corporation,
(b) any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under any Guarantee and (d) purchases of common stock related to
the issuance of common stock or rights under any of the Corporation's benefit
plans for its directors, officers or employees). Prior to the termination of
any such Extension Period, the Corporation may further defer the payment of
interest, provided that no Extension Period may exceed 20 consecutive quarters
or extend beyond the Stated Maturity of the Series 1 Subordinated Debentures.
Upon the termination of any such Extension Period and the payment of all
amounts then due, the Corporation may elect to begin a new Extension Period.
There is no limitation on the number of times that the Corporation may elect
to begin an Extension Period. See "Certain Terms of Series 1 Subordinated
Debentures--Option to Extend Interest Payment Period" and "Certain Federal
Income Tax Consequences--Original Issue Discount."
The Corporation has no current intention of exercising its right to defer
payments of interest by extending the interest payment period on the Series 1
Subordinated Debentures.
REDEMPTION
Upon the repayment or redemption, in whole or in part, of the Series 1
Subordinated Debentures, whether at Stated Maturity or upon earlier redemption
as provided in the Junior Subordinated Indenture, the proceeds from such
repayment or redemption shall be applied by the Property Trustee to redeem a
Like Amount (as defined in the accompanying Prospectus) of the Series 1
Securities, upon not less than 30 nor more than 60 days notice prior to the
date fixed for repayment or redemption, at a redemption price, with respect to
the Series 1 QUIPS (the "Redemption Price"), equal to the aggregate
Liquidation Amount of such Series 1 QUIPS plus accumulated and unpaid
Distributions thereon to but excluding the date of redemption (the "Redemption
Date"). See "Description of Preferred Securities--Redemption or Exchange" in
the accompanying Prospectus. For a description of the Stated Maturity and
redemption provisions of the Series 1 Subordinated Debentures, see "Certain
Terms of Series 1 Subordinated Debentures--General" and "--Redemption."
LIQUIDATION OF SERIES 1 ISSUER TRUST AND DISTRIBUTION OF SERIES 1 SUBORDINATED
DEBENTURES TO HOLDERS
The Corporation will have the right at any time to terminate the Series 1
Issuer Trust and cause the Series 1 Subordinated Debentures to be distributed
to the holders of the Series 1 QUIPS in liquidation of the Series 1 Issuer
Trust. Such right is subject to the Corporation having received prior approval
of the Federal Reserve if then required under applicable capital guidelines or
policies of the Federal Reserve.
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<PAGE>
Under current United States Federal income tax law and interpretations and
assuming, as expected, the Series 1 Issuer Trust is treated as a grantor
trust, a distribution of the Series 1 Subordinated Debentures should not be a
taxable event to holders of the Series 1 QUIPS. Should there be a change in
law, a change in legal interpretation, a Tax Event or other circumstances,
however, the distribution could be a taxable event to holders of the Series 1
QUIPS. See "Certain Federal Income Tax Consequences--Distribution of Series 1
Subordinated Debentures to Holders of Series 1 QUIPS." If the Corporation
elects neither to redeem the Series 1 Subordinated Debentures prior to
maturity nor to liquidate the Series 1 Issuer Trust and distribute the Series
1 Subordinated Debentures to holders of the Series 1 QUIPS, the Series 1 QUIPS
will remain outstanding until the repayment of the Series 1 Subordinated
Debentures.
If the Corporation elects to liquidate the Series 1 Issuer Trust and thereby
causes the Series 1 Subordinated Debentures to be distributed to holders of
the Series 1 QUIPS in liquidation of the Series 1 Issuer Trust, the
Corporation shall continue to have the right to shorten or extend the maturity
of such Series 1 Subordinated Debentures, subject to certain conditions as
described under "Certain Terms of Series 1 Subordinated Debentures--General."
LIQUIDATION VALUE
The amount payable on the Series 1 QUIPS in the event of any liquidation of
the Series 1 Issuer Trust is $25 per Series 1 QUIPS plus accumulated and
unpaid Distributions, which may be in the form of a distribution of such
amount in Series 1 Subordinated Debentures, subject to certain exceptions. See
"Description of Preferred Securities--Liquidation Distribution Upon
Termination" in the accompanying Prospectus.
REGISTRATION OF SERIES 1 QUIPS
The Series 1 QUIPS will be represented by global certificates registered in
the name of DTC or its nominee. Beneficial interests in the Series 1 QUIPS
will be shown on, and transfers thereof will be effected only through, records
maintained by participants in DTC. Except as described below and in the
accompanying Prospectus, Series 1 QUIPS in certificated form will not be
issued in exchange for the global certificates. See "Book-Entry Issuance" in
the accompanying Prospectus.
A global security shall be exchangeable for Series 1 QUIPS registered in the
names of persons other than DTC or its nominee only if (i) DTC notifies the
Corporation that it is unwilling or unable to continue as a depository for
such global security and no successor depository shall have been appointed, or
if at any time DTC ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, at a time when DTC is required to
be so registered to act as such depository, (ii) the Corporation in its sole
discretion determines that such global security shall be so exchangeable or
(iii) there shall have occurred and be continuing an Event of Default under
the Junior Subordinated Indenture with respect to the Series 1 Subordinated
Debentures. Any global security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for definitive certificates registered in such
names as DTC shall direct. It is expected that such instructions will be based
upon directions received by DTC from its Participants (as defined in the
accompanying Prospectus) with respect to ownership of beneficial interests in
such global security. In the event that Series 1 QUIPS are issued in
definitive form, such Series 1 QUIPS will be in denominations of $25 and
integral multiples thereof and may be transferred or exchanged at the offices
described below.
Payments on Series 1 QUIPS represented by a global security will be made to
DTC, as the depository for the Series 1 QUIPS. In the event Series 1 QUIPS are
issued in definitive form, the Redemption Price and Distributions will be
payable, the transfer of the Series 1 QUIPS will be registrable, and Series 1
QUIPS will be exchangeable for Series 1 QUIPS of other denominations of a like
aggregate principal amount, at the corporate trust office of the Property
Trustee in New York, New York, or at the offices of any paying agent or
transfer agent appointed by the Administrative Trustees,
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<PAGE>
provided that payment of any Distribution may be made at the option of the
Administrative Trustees by check mailed to the address of the persons entitled
thereto or by wire transfer. In addition, if the Series 1 QUIPS are issued in
certificated form, the record dates for payment of Distributions will be the
15th day of the last month of each calendar quarter. For a description of DTC
and the terms of the depository arrangements relating to payments, transfers,
voting rights, redemptions and other notices and other matters, see "Book-
Entry Issuance" in the accompanying Prospectus.
CERTAIN TERMS OF SERIES 1 SUBORDINATED DEBENTURES
GENERAL
The following summary of certain terms and provisions of the Series 1
Subordinated Debentures supplements the description of the terms and
provisions of the Corresponding Junior Subordinated Debentures set forth in
the accompanying Prospectus under the headings "Description of Junior
Subordinated Debentures" and "Description of Junior Subordinated Debentures--
Corresponding Junior Subordinated Debentures", to which description reference
is hereby made. The summary of certain terms and provisions of the Series 1
Subordinated Debentures set forth below does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Junior
Subordinated Indenture. The Junior Subordinated Indenture has been filed as an
exhibit to the Registration Statement of which this Prospectus Supplement and
the accompanying Prospectus form a part.
Concurrently with the issuance of the Series 1 QUIPS, the Series 1 Issuer
Trust will invest the proceeds thereof, together with the consideration paid
by the Corporation for the Series 1 Common Securities, in the Series 1
Subordinated Debentures issued by the Corporation. The Series 1 Subordinated
Debentures will bear interest at the annual rate of % of the principal
amount thereof, payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year (each, an "Interest Payment Date"), commencing
, 1997, to the person in whose name each Series 1 Subordinated
Debenture is registered, subject to certain exceptions, at the close of
business on the Business Day next preceding such Interest Payment Date. It is
anticipated that, until the liquidation, if any, of the Series 1 Issuer Trust,
each Series 1 Subordinated Debentures will be held in the name of the Property
Trustee in trust for the benefit of the holders of the Series 1 QUIPS. The
amount of interest payable for any period less than a full interest period
will be computed on the basis of a 360-day year of twelve 30-day months and
the actual days elapsed in a partial month in a period. The amount of interest
payable for any full interest period will be computed by dividing the rate per
annum by four. In the event that any date on which interest is payable on the
Series 1 Subordinated Debentures is not a Business Day, then payment of the
interest payable on such date will be made on the next succeeding day that is
a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on the
date such payment was originally payable. Accrued interest that is not paid on
the applicable Interest Payment Date will bear additional interest on the
amount thereof (to the extent permitted by law) at the rate per annum of %
thereof, compounded quarterly and computed on the basis of a 360-day year of
twelve 30-day months and the actual days elapsed in a partial month in a
period. The amount of additional interest payable for any full interest period
will be computed by dividing the rate per annum by four. The term "interest"
as used herein shall include quarterly interest payments, interest on
quarterly interest payments not paid on the applicable Interest Payment Date
and Additional Sums (as defined below), as applicable.
The Series 1 Subordinated Debentures will be issued as a series of junior
subordinated debentures under the Junior Subordinated Indenture. The Series 1
Subordinated Debentures will mature on , 2026 (such date, as it may
be shortened or extended as hereinafter described,
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the "Stated Maturity"). Such date may be shortened at any time by the
Corporation to any date not earlier than , 2001, subject to the Corporation
having received prior approval of the Federal Reserve if then required under
applicable capital guidelines or policies of the Federal Reserve. Such date
may also be extended at any time at the election of the Corporation for one or
more periods, but in no event to a date later than , 2045, provided that
at the time such election is made and at the time of extension (i) the
Corporation is not in bankruptcy, otherwise insolvent or in liquidation, (ii)
the Corporation is not in default in the payment of any interest or principal
on the Series 1 Subordinated Debentures, (iii) the Series 1 Issuer Trust is
not in arrears on payments of Distributions on the Series 1 QUIPS and no
deferred Distributions are accumulated and (iv) the Series 1 Subordinated
Debentures are rated not less than BBB- by Standard & Poor's Ratings Services
or Baa3 by Moody's Investors Service, Inc. or the equivalent by any other
nationally recognized statistical rating organization. In the event the
Corporation elects to shorten or extend the Stated Maturity of the Series 1
Subordinated Debentures, it shall give notice to the Debenture Trustee, and
the Debenture Trustee shall give notice of such shortening or extension to the
holders of the Series 1 Subordinated Debentures no more than 60 and no less
than 30 days prior to the effectiveness thereof.
The Series 1 Subordinated Debentures will be unsecured and will rank junior
and be subordinate in right of payment to all Senior Indebtedness of the
Corporation. Because the Corporation is a holding company, the right of the
Corporation to participate in any distribution of assets of any subsidiary,
including Bank of America, BAI and BANW, upon such subsidiary's liquidation or
reorganization or otherwise (and thus the ability of holders of the Series 1
QUIPS to benefit indirectly from such distribution), is subject to the prior
claims of creditors of that subsidiary, except to the extent that the
Corporation may itself be recognized as a creditor of that subsidiary. In
addition, there are also various legal limitations on the extent to which the
Corporation's depository subsidiaries may extend credit, pay dividends or
otherwise supply funds to the Corporation or various of its affiliates.
Accordingly, the Series 1 Subordinated Debentures will be effectively
subordinated to all existing and future liabilities of the Corporation's
subsidiaries, and holders of Series 1 Subordinated Debentures should look only
to the assets of the Corporation for payments on the Series 1 Subordinated
Debentures. See "BankAmerica Corporation". The Junior Subordinated Indenture
does not limit the incurrence or issuance of other secured or unsecured debt
of the Corporation, including Senior Indebtedness, whether under the Junior
Subordinated Indenture or any existing or other indenture that the Corporation
may enter into in the future or otherwise. See "Description of Junior
Subordinated Debentures--Subordination" in the accompanying Prospectus.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Event of Default under the Junior Subordinated Indenture has
occurred and is continuing, the Corporation has the right under the Junior
Subordinated Indenture at any time during the term of the Series 1
Subordinated Debentures to defer the payment of interest at any time or from
time to time for a period not exceeding 20 consecutive quarters with respect
to each Extension Period, provided that no Extension Period may extend beyond
the Stated Maturity of the Series 1 Subordinated Debentures. At the end of
such Extension Period, the Corporation must pay all interest then accrued and
unpaid (together with interest thereon at the annual rate of %, compounded
quarterly and computed on the basis of a 360-day year of twelve 30-day months
and the actual days elapsed in a partial month in a period, to the extent
permitted by applicable law). The amount of additional interest payable for
any full interest period will be computed by dividing the rate per annum by
four. During an Extension Period, interest will continue to accrue and holders
of Series 1 Subordinated Debentures (or holders of Series 1 QUIPS while such
series is outstanding) will be required to accrue interest income for United
States federal income tax purposes. See "Certain Federal Income Tax
Consequences--Original Issue Discount."
During any such Extension Period, the Corporation may not, and may not
permit any subsidiary of the Corporation to, (i) declare or pay any dividends
or distributions on, or redeem, purchase,
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acquire, or make a liquidation payment with respect to, any of the
Corporation's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Corporation (including other Junior Subordinated Debentures) that rank
pari passu in all respects with or junior in interest to the Series 1
Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Corporation of the debt securities of any subsidiary of the
Corporation if such guarantee ranks pari passu with or junior in interest to
the Series 1 Subordinated Debentures (other than (a) dividends or
distributions in common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under any
Guarantee and (d) purchases of common stock related to the issuance of common
stock or rights under any of the Corporation's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Corporation may further defer the payment of interest,
provided that no Extension Period may exceed 20 consecutive quarters or extend
beyond the Stated Maturity of the Series 1 Subordinated Debentures. Upon the
termination of any such Extension Period and the payment of all amounts then
due on any Interest Payment Date, the Corporation may elect to begin a new
Extension Period subject to the above requirements. No interest shall be due
and payable during an Extension Period, except at the end thereof. The
Corporation must give the Property Trustee, the Administrative Trustees and
the Debenture Trustee notice of its election of such Extension Period at least
one Business Day prior to the earlier of (i) the date the Distributions on the
Series 1 QUIPS would have been payable except for the election to begin such
Extension Period or (ii) the date the Administrative Trustees are required to
give notice to the New York Stock Exchange, the Nasdaq National Market or
other applicable self-regulatory organization or to holders of such Series 1
QUIPS of the record date or the date such Distributions are payable, but in
any event not less than one Business Day prior to such record date. The
Property Trustee shall give notice of the Corporation's election to begin a
new Extension Period to the holders of the Series 1 QUIPS. There is no
limitation on the number of times that the Corporation may elect to begin an
Extension Period. See "Description of Junior Subordinated Debentures--Option
to Extend Interest Payment Date" in the accompanying Prospectus.
ADDITIONAL SUMS
If the Series 1 Issuer Trust is required to pay any additional taxes, duties
or other governmental charges as a result of a Tax Event, the Corporation will
pay as additional amounts on the Series 1 Subordinated Debentures such amounts
as shall be required so that the Distributions payable by the Series 1 Issuer
Trust shall not be reduced as a result of any such additional taxes, duties or
other governmental charges.
REDEMPTION
Subject to the Corporation having received prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of
the Federal Reserve, the Series 1 Subordinated Debentures are redeemable prior
to maturity at the option of the Corporation (i) on or after , 2001, in
whole at any time or in part from time to time, or (ii) in whole (but not in
part) at any time within 90 days following the occurrence of a Tax Event, in
each case at a redemption price equal to the accrued and unpaid interest on
the Series 1 Subordinated Debentures so redeemed to but excluding the date
fixed for redemption, plus 100% of the principal amount thereof. See
"Description of Junior Subordinated Debentures--Redemption" in the
accompanying Prospectus.
DISTRIBUTION OF SERIES 1 SUBORDINATED DEBENTURES
As described under "Certain Terms of Series 1 QUIPS--Liquidation of Series 1
Issuer Trust and Distribution of Series 1 Subordinated Debentures to Holders",
under certain circumstances involving the termination of the Series 1 Issuer
Trust, Series 1 Subordinated Debentures may be distributed to
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the holders of the Series 1 QUIPS in liquidation of the Series 1 Issuer Trust
after satisfaction of liabilities to creditors of the Series 1 Issuer Trust as
provided by applicable law. If distributed to holders of Series 1 QUIPS in
liquidation, the Series 1 Subordinated Debentures will initially be issued in
the form of one or more global securities and DTC, or any successor depository
for the Series 1 QUIPS, will act as depository for the Series 1 Subordinated
Debentures. It is anticipated that the depository arrangements for the Series
1 Subordinated Debentures would be substantially identical to those in effect
for the Series 1 QUIPS. If the Series 1 Subordinated Debentures are
distributed to the holders of Series 1 QUIPS upon the liquidation of the
Series 1 Issuer Trust, the Corporation will use its best efforts to list the
Series 1 Subordinated Debentures on the New York Stock Exchange or such other
stock exchanges, if any, on which the Series 1 QUIPS are then listed. There
can be no assurance as to the market price of any Series 1 Subordinated
Debentures that may be distributed to the holders of Series 1 QUIPS.
REGISTRATION OF SERIES 1 SUBORDINATED DEBENTURES
The Series 1 Subordinated Debentures will be represented by global
certificates registered in the name of DTC or its nominee. Beneficial
interests in the Series 1 Subordinated Debentures will be shown on, and
transfers thereof will be effected only through, records maintained by
participants in DTC. Except as described below and in the accompanying
Prospectus, Series 1 Subordinated Debentures in certificated form will not be
issued in exchange for the global certificates. See "Book-Entry Issuance" in
the accompanying Prospectus.
A global security shall be exchangeable for Series 1 Subordinated Debentures
registered in the names of persons other than DTC or its nominee only if (i)
DTC notifies the Corporation that it is unwilling or unable to continue as a
depository for such global security or if at any time DTC ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when DTC is required to be so registered to act as such
depository and no successor depository shall have been appointed, (ii) the
Corporation in its sole discretion determines that such global security shall
be so exchangeable, or (iii) there shall have occurred and be continuing an
Event of Default under the Junior Subordinated Indenture with respect to such
global security. Any global security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for definitive certificates
registered in such names as DTC shall direct. It is expected that such
instructions will be based upon directions received by DTC from its
Participants (as defined in the accompanying Prospectus) with respect to
ownership of beneficial interests in such global security. In the event that
Series 1 Subordinated Debentures are issued in definitive form, such Series 1
Subordinated Debentures will be in denominations of $25 and integral multiples
thereof and may be transferred or exchanged at the offices described below.
Payments on Series 1 Subordinated Debentures represented by a global
security will be made to DTC, as the depository for the Series 1 Subordinated
Debentures. In the event Series 1 Subordinated Debentures are issued in
definitive form, principal and interest will be payable, the transfer of the
Series 1 Subordinated Debentures will be registrable, and Series 1
Subordinated Debentures will be exchangeable for Series 1 Subordinated
Debentures of other denominations of a like aggregate principal amount, at the
corporate trust office of the Debenture Trustee in New York, New York, or at
the offices of any paying agent or transfer agent appointed by the
Corporation, provided that payment of interest may be made at the option of
the Corporation by check mailed to the address of the persons entitled thereto
or by wire transfer. In addition, if the Series 1 Subordinated Debentures are
issued in certificated form, the record dates for payment of interest will be
the 15th day of the last month of each calendar quarter. For a description of
DTC and the terms of the depository arrangements relating to payments,
transfers, voting rights, redemptions and other notices and other matters, see
"Book-Entry Issuance" in the accompanying Prospectus.
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<PAGE>
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following is a summary of the principal United States federal income tax
consequences of the purchase, ownership and disposition of Series 1 QUIPS.
This summary only addresses the tax consequences to a person that acquires
Series 1 QUIPS on their original issue at their original offering price and
that is (i) an individual citizen or resident of the United States, (ii) a
corporation or partnership organized in or under the laws of the United States
or any state thereof or the District of Columbia or (iii) an estate or trust
the income of which is subject to United States federal income tax regardless
of source (a "United States Person"). This summary does not address all tax
consequences that may be applicable to a United States Person that is a
beneficial owner of Series 1 QUIPS, nor does it address the tax consequences
to (i) persons that are not United States Persons, (ii) persons that may be
subject to special treatment under United States federal income tax law, such
as banks, insurance companies, thrift institutions, regulated investment
companies, real estate investment trusts, tax-exempt organizations and dealers
in securities or currencies, (iii) persons that will hold Series 1 QUIPS as
part of a position in a "straddle" or as part of a "hedging," "conversion" or
other integrated investment transaction for federal income tax purposes, (iv)
persons whose functional currency is not the United States dollar or (v)
persons that do not hold Series 1 QUIPS as capital assets.
The statements of law or legal conclusion set forth in this summary
constitute the opinion of Orrick, Herrington & Sutcliffe LLP, counsel to the
Corporation and the Series 1 Issuer Trust. This summary is based upon the
Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations,
Internal Revenue Service rulings and pronouncements and judicial decisions now
in effect, all of which are subject to change at any time. Such changes may be
applied retroactively in a manner that could cause the tax consequences to
vary substantially from the consequences described below, possibly adversely
affecting a beneficial owner of Series 1 QUIPS. In particular, legislation has
been proposed that could adversely affect the Corporation's ability to deduct
interest on the Series 1 Subordinated Debentures, which may in turn permit the
Corporation to cause a redemption of the Series 1 QUIPS. See "--Possible Tax
Law Changes." An opinion of counsel is not binding on the Internal Revenue
Service or the courts, and the authorities on which this summary is based are
subject to various interpretations. It is therefore possible that the federal
income tax treatment of the purchase, ownership and disposition of Series 1
QUIPS may differ from the treatment described below.
PROSPECTIVE INVESTORS ARE ADVISED TO CONSULT WITH THEIR OWN TAX ADVISORS IN
LIGHT OF THEIR OWN PARTICULAR CIRCUMSTANCES AS TO THE FEDERAL TAX CONSEQUENCES
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF SERIES 1 QUIPS, AS WELL AS THE
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
CLASSIFICATION OF THE SERIES 1 ISSUER TRUST
In connection with the issuance of the Series 1 QUIPS, Orrick, Herrington &
Sutcliffe LLP will render its opinion to the effect that, under then current
law and assuming compliance with the terms of the Trust Agreement, and based
on certain facts and assumptions contained in such opinion, the Series 1
Issuer Trust will be classified as a grantor trust and not as an association
taxable as a corporation for United States federal income tax purposes. As a
result, each beneficial owner of Series 1 QUIPS (a "Securityholder") will be
treated as owning an undivided beneficial interest in the Series 1
Subordinated Debentures. Accordingly, each Securityholder will be required to
include in its gross income its pro rata share of the items of income realized
with respect to the Series 1 Subordinated Debentures whether or not cash is
actually distributed to the Securityholders. See "--Original Issue Discount."
No amount included in income with respect to the Series 1 QUIPS will be
eligible for the dividends-received deduction.
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<PAGE>
ORIGINAL ISSUE DISCOUNT
Final Treasury Regulations issued on June 11, 1996 generally provide that
stated interest on a debt instrument is not "qualified stated interest" and,
therefore, will give rise to original issue discount ("OID") unless such
interest is unconditionally payable in cash or in property (other than debt
instruments of the issuer) at least annually at a single fixed rate. Interest
is considered to be unconditionally payable only if reasonable legal remedies
exist to compel timely payment or the debt instrument otherwise provides terms
and conditions that make the likelihood of late payment (other than late
payment that occurs within a reasonable grace period) or non-payment a "remote
contingency."
Under the Junior Subordinated Indenture, the Corporation has the right, at
any time and from time to time during the term of the Series 1 Subordinated
Debentures to defer payments of interest by extending the interest payment
period for a period not exceeding 20 consecutive quarters with respect to each
Extension Period. Unless the likelihood of exercise of such right to defer is
remote, the Series 1 Subordinated Debentures would be issued with OID. During
any Extension Period, (a) the Corporation will not be permitted to declare or
pay any dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of its capital stock, and (b) the
Corporation will not be permitted to make any payment of principal, interest
or premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees) issued by the Corporation that rank pari passu with or
junior to the Series 1 Subordinated Debentures (although these restrictions
will not apply to dividends or distributions in common stock of the
Corporation and in certain other limited situations). See "Certain Terms of
Series 1 Subordinated Debentures--Option to Extend Interest Payment Period."
The Corporation currently believes that the adverse impact that the imposition
of such restrictions would have on the Corporation and the value of the equity
securities of the Corporation makes the likelihood of the Corporation
exercising its right to defer payments of interest on the Series 1
Subordinated Debentures remote. Accordingly, the Corporation believes that the
stated interest on the Series 1 Subordinated Debentures should be considered
unconditionally payable for purposes of the OID provisions of the Code and
that the Series 1 Subordinated Debentures should not be considered to have
been issued with OID. There can be no assurance, however, that the Internal
Revenue Service will agree with such determination.
Moreover, if, notwithstanding the foregoing, the Corporation does exercise
its right to defer payments of interest thereon, the Series 1 Subordinated
Debentures will be considered to be retired and reissued for their adjusted
issue price at such time, and the Series 1 Subordinated Debentures thereafter
will be considered to have been issued with OID. In such case, all the
interest payments thereafter payable will be treated as OID. If the payments
were treated as OID (either because the Corporation exercises the right to
defer interest payments or because the exercise of such right was not remote
at the time of issuance), holders must include that discount in income on an
economic accrual basis before the receipt of cash attributable to the
interest, regardless of their method of tax accounting. The amount of OID that
accrues in any quarter will approximately equal the amount of the interest
that accrues in that quarter at the stated interest rate. In the event that
the interest payment period is extended, holders will continue to accrue OID
approximately equal to the amount of the interest payment due at the end of
the extended interest payment period on an economic accrual basis over the
length of the extended interest period.
DISTRIBUTION OF SERIES 1 SUBORDINATED DEBENTURES TO HOLDERS OF SERIES 1 QUIPS
Under current law, a distribution by the Series 1 Issuer Trust of the Series
1 Subordinated Debentures, as described under the caption "Certain Terms of
Series 1 QUIPS--Liquidation of Series 1 Issuer Trust and Distribution of
Series 1 Subordinated Debentures to Holders," will be non-taxable and will
result in the Securityholder receiving directly his pro rata share of the
Series 1 Subordinated Debentures previously held indirectly through the Series
1 Issuer Trust, with a holding period and aggregate tax basis equal to the
holding period and aggregate tax basis such Securityholder had in its Series 1
QUIPS before such distribution.
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SALES OR REDEMPTION OF SERIES 1 QUIPS
Gain or loss will be recognized by a Securityholder on a sale of Series 1
QUIPS (including a redemption for cash) in an amount equal to the difference
between the amount realized and the Securityholder's adjusted tax basis in the
Series 1 QUIPS sold or so redeemed. A Securityholder's adjusted tax basis in
the Series 1 QUIPS will be increased by any OID accruals and decreased by any
interest payments not treated as "qualified stated interest." See "--Original
Issue Discount." Gain or loss recognized by a Securityholder on Series 1 QUIPS
held for more than one year will generally be taxable as long-term capital
gain or loss.
The Series 1 QUIPS may trade at a price that does not fully reflect the
value of accrued but unpaid interest with respect to the underlying Series 1
Subordinated Debentures. As a result, a Securityholder that disposes of its
Series 1 QUIPS could recognize a capital loss on the disposition of its Series
1 QUIPS even though the total selling price exceeds the Securityholder's
purchase price. Subject to certain limited exceptions, capital losses cannot
be applied to offset ordinary income for federal income tax purposes.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid or OID accrued on the Series 1 QUIPS held of
record by United States Persons (other than corporations and other exempt
Securityholders) will be reported to the Internal Revenue Service. "Backup"
withholding at a rate of 31% will apply to payments of interest to non-exempt
United States Persons unless the Securityholder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
Regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions.
Payment of the proceeds from the disposition of Series 1 QUIPS to or through
the United States office of a broker is subject to information reporting and
backup withholding unless the holder or beneficial owner establishes an
exemption from information reporting and backup withholding.
Any amounts withheld from a Securityholder under the backup withholding
rules will be allowed as a refund or a credit against such Securityholder's
United States federal income tax liability, provided the required information
is furnished to the Internal Revenue Service.
It is anticipated that income on the Series 1 QUIPS will be reported to
holders on Form 1099 and mailed to holders of the Series 1 QUIPS by January 31
following each calendar year.
POSSIBLE TAX LAW CHANGES
On March 19, 1996, the Revenue Reconciliation Bill of 1996 (the "Bill"), the
revenue portion of President Clinton's budget proposal, was released. The Bill
would, among other things, generally deny interest deductions for interest on
an instrument issued by a corporation that has a maximum weighted average
maturity of more than 40 years. The Bill would also generally deny interest
deductions for interest on an instrument issued by a corporation that has a
maximum term of more than 20 years and that is not shown as indebtedness on
the separate balance sheet of the issuer or, where the instrument is issued to
a related party (other than a corporation), where the holder or some other
related party issues a related instrument that is not shown as indebtedness on
the issuer's consolidated balance sheet. For purposes of determining the
weighted average maturity or the term of an instrument, any right to extend
would be treated as exercised. The above-described provisions of the Bill were
proposed to be effective generally for instruments issued on or after December
7, 1995. If either provision were to apply to the Series 1 Subordinated
Debentures, the Corporation would be unable to deduct interest on the Series 1
Subordinated Debentures. However, on March 29, 1996, the Chairmen
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of the Senate Finance and House Ways and Means Committees issued a joint
statement to the effect that it was their intention that the effective date of
the President's legislative proposals, if adopted, will be no earlier than the
date of appropriate Congressional action. Under current law, the Corporation
will be able to deduct interest on the Series 1 Subordinated Debentures. There
can be no assurance, however, that current or future legislative proposals or
final legislation will not affect the ability of the Corporation to deduct
interest on the Series 1 Subordinated Debentures. Such a change could give
rise to a Tax Event, which may permit the Corporation to cause a redemption of
the Series 1 QUIPS, as described more fully in the accompanying Prospectus
under "Description of Preferred Securities--Redemption or Exchange--Tax Event
Redemption" and "--Distribution of Corresponding Junior Subordinated
Debentures."
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UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement,
the Corporation and the Series 1 Issuer Trust have agreed that the Series 1
Issuer Trust will sell to Goldman, Sachs & Co., [insert names of other
Underwriters] (the "Underwriters"), and the Underwriters have agreed to
purchase from the Series 1 Issuer Trust, the respective number of Series 1
QUIPS set forth opposite their names below. In the Underwriting Agreement, the
several Underwriters have agreed, subject to the terms and conditions set
forth therein, to purchase all the Series 1 QUIPS offered hereby if any of the
Series 1 QUIPS are purchased. In the event of default by an Underwriter, the
Underwriting Agreement provides that, in certain circumstances, the purchase
commitments of the nondefaulting Underwriters may be increased or the
Underwriting Agreement may be terminated.
<TABLE>
<CAPTION>
NUMBER
OF SERIES
1 QUIPS
UNDERWRITER ---------
<S> <C>
Goldman, Sachs & Co.............................................
[insert names of other Underwriters]............................
---
Total.......................................................
===
</TABLE>
The Corporation and the Underwriters have agreed that a total of
Series 1 QUIPS will initially be allocated for sale to certain institutional
investors, and that the underwriting commission with respect to such Series 1
QUIPS will be $ per Series 1 QUIPS. The actual total underwriting
commission and total proceeds of this offering will depend on the number of
Series 1 QUIPS actually purchased by such institutional investors, which may
be greater or less than the initial allocation.
The Underwriters propose initially to offer the Series 1 QUIPS to the public
at the public offering price set forth on the cover page of this Prospectus
Supplement and to certain dealers at such price less a concession not in
excess of $. per Series 1 QUIPS. The Underwriters may allow, and such
dealers may reallow, a discount not in excess of $. per Series 1 QUIPS to
certain other dealers. After the initial public offering, the public offering
price, concession and discount may be changed.
In view of the fact that the proceeds from the sale of the Series 1 QUIPS
will be used to purchase the Series 1 Subordinated Debentures issued by the
Corporation, the Underwriting Agreement provides that the Corporation will pay
as Underwriters' Compensation for the Underwriters' arranging the investment
therein of such proceeds an amount of $. per Series 1 QUIPS for the
accounts of the several Underwriters.
The Corporation and the Series 1 Issuer Trust have agreed that, during the
period beginning from the date of the Underwriting Agreement and continuing to
and including the earlier of (i) the termination of trading restrictions on
the Series 1 QUIPS, as determined by the Underwriters, and (ii) days after
the closing date, they will not offer, sell, contract to sell or otherwise
dispose of any Preferred Securities, any other beneficial interests in the
assets of the Series 1 Issuer Trust, or any preferred securities or any other
securities of the Series 1 Issuer Trust or the Corporation which are
substantially similar to the Series 1 QUIPS, including any guarantee of such
securities, or any securities convertible into or exchangeable for or
representing the right to receive securities, preferred securities or any such
substantially similar securities of either the Series 1 Issuer Trust or the
Corporation, without the prior written consent of the Underwriters, except for
the Series 1 QUIPS offered in connection with the offering.
Prior to this offering, there has been no public market for the Series 1
QUIPS. Application will be made to list the Series 1 QUIPS on the New York
Stock Exchange. Trading of the Series 1 QUIPS on the New York Stock Exchange
is expected to commence within a 30-day period after the initial delivery of
the Series 1 QUIPS. The Underwriters have advised the Corporation that they
intend to make a market in the Series 1 QUIPS prior to commencement of trading
on the New York Stock Exchange,
S-23
<PAGE>
but are not obligated to do so and may discontinue market making at any time
without notice. No assurance can be given as to the liquidity of the trading
market for the Series 1 QUIPS.
In order to meet one of the requirements for listing the Series 1 QUIPS on
the New York Stock Exchange, the Underwriters will undertake to sell lots of
100 or more Series 1 QUIPS to a minimum of 400 beneficial holders.
The Corporation and the Series 1 Issuer Trust have agreed to indemnify the
several Underwriters against, or contribute to payments that the Underwriters
may be required to make in respect of, certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
BA Securities, Inc. ("BASI") is a wholly-owned subsidiary of the Corporation
and an affiliate of the Series 1 Issuer Trust. Accordingly, to the extent BASI
is authorized to underwrite the Series 1 QUIPS, any offer and sale of the
Series 1 QUIPS will comply with Rule 2720 of the Rules of Conduct of the
National Association of Securities Dealers, Inc. (the "NASD") regarding
underwriting securities of an affiliate. No NASD member participating in the
offering of the Series 1 QUIPS will execute a transaction in the Series 1
QUIPS in a discretionary account without the prior written specific approval
of the member's customer.
This Prospectus Supplement and the accompanying Prospectus may be used by
BASI in connection with offers and sales related to secondary market
transactions in the Series 1 QUIPS. BASI may act as principal or agent in such
transactions. Such sales will be made at prices related to prevailing market
prices at the time of sale or otherwise.
Certain of the Underwriters or their affiliates have provided from time to
time, and expect to provide in the future, investment or commercial banking
services to the Corporation and its affiliates, for which such Underwriters or
their affiliates have received or will receive customary fees and commissions.
VALIDITY OF SECURITIES
Certain matters of Delaware law relating to the validity of the Series 1
QUIPS, the enforceability of the Trust Agreement and the creation of the
Series 1 Issuer Trust will be passed upon by Richards, Layton & Finger,
special Delaware Counsel to the Corporation and the Series 1 Issuer Trust. The
validity of the Series 1 Guarantee and the Series 1 Subordinated Debentures
will be passed upon for the Corporation by Orrick, Herrington & Sutcliffe LLP,
San Francisco, California and for the Underwriters by Sullivan & Cromwell, Los
Angeles, California. Orrick, Herrington & Sutcliffe LLP and Sullivan &
Cromwell will rely on the opinion of Richards, Layton & Finger as to matters
of Delaware law. Certain matters relating to United States federal income tax
considerations will be passed upon for the Corporation by Orrick, Herrington &
Sutcliffe LLP.
S-24
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED NOVEMBER 5, 1996
$1,500,000,000
BANKAMERICA CORPORATION
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DEBT SECURITIES
BANKAMERICA CAPITAL I
BANKAMERICA CAPITAL II
BANKAMERICA CAPITAL III
BANKAMERICA CAPITAL IV
BANKAMERICA CAPITAL V
BANKAMERICA CAPITAL VI
BANKAMERICA CAPITAL VII
BANKAMERICA CAPITAL VIII
PREFERRED SECURITIES FULLY AND UNCONDITIONALLY
GUARANTEED, TO THE EXTENT DESCRIBED HEREIN, BY
BANKAMERICA CORPORATION
BankAmerica Corporation, a Delaware corporation (the "Corporation"), may from
time to time offer in one or more series or issuances its junior subordinated
deferrable interest debentures (the "Junior Subordinated Debentures"). The
Junior Subordinated Debentures will be unsecured and subordinate and junior in
right of payment to all Senior Indebtedness (as defined in "Description of
Junior Subordinated Debentures--Subordination") of the Corporation. If provided
in an accompanying Prospectus Supplement, the Corporation will have the right
to defer payments of interest on any series of Junior Subordinated Debentures
by extending the interest payment period thereon at any time or from time to
time for such number of consecutive interest payment periods (which shall not
extend beyond the Stated Maturity (as defined herein) of the Junior
Subordinated Debentures) with respect to each deferral period as may be
specified in such Prospectus Supplement (each, an "Extension Period"). See
"Description of Junior Subordinated Debentures--Option to Extend Interest
Payment Date."
(continued on next page)
-----------
THESE SECURITIES ARE NOT SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF ANY
BANK OR NONBANK SUBSIDIARY OF THE CORPORATION AND ARE NOT INSURED BY THE
FEDERAL DEPOSIT INSURANCE CORPORATION, THE BANK INSURANCE FUND OR ANY OTHER
GOVERNMENT AGENCY.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------
The date of this Prospectus is , 1996.
<PAGE>
(cover page continued)
BankAmerica Capital I, BankAmerica Capital II, BankAmerica Capital III,
BankAmerica Capital IV, BankAmerica Capital V, BankAmerica Capital VI,
BankAmerica Capital VII and BankAmerica Capital VIII each a trust created
under the laws of the State of Delaware (each, an "Issuer Trust," and
collectively, the "Issuer Trusts"), may severally offer, from time to time,
preferred securities (the "Preferred Securities") representing preferred
beneficial interests in such Issuer Trust. The Corporation will be the owner
of the common securities (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities") representing common undivided
beneficial interests in such Issuer Trust. The payment of periodic cash
distributions ("Distributions") with respect to the Preferred Securities of
each Issuer Trust and payments on liquidation or redemption with respect to
such Preferred Securities, in each case out of funds held by such Issuer
Trust, are each irrevocably guaranteed by the Corporation to the extent
described herein (each, a "Guarantee"). See "Description of Guarantees." The
obligations of the Corporation under each Guarantee will be subordinate and
junior in right of payment to all Senior Indebtedness of the Corporation.
Concurrently with the issuance by an Issuer Trust of its Preferred Securities,
such Issuer Trust will invest the proceeds thereof and any contributions made
in respect of the Common Securities in a corresponding series of the
Corporation's Junior Subordinated Debentures (the "Corresponding Junior
Subordinated Debentures") with terms corresponding to the terms of that Issuer
Trust's Preferred Securities (the "Related Preferred Securities"). The
Corresponding Junior Subordinated Debentures will be the sole assets of each
Issuer Trust, and payments under the Corresponding Junior Subordinated
Debentures and the related Expense Agreement (as defined herein) will be the
only revenue of each Issuer Trust. If provided in an accompanying Prospectus
Supplement, the Corporation may, upon receipt of approval of the Board of
Governors of the Federal Reserve System (the "Federal Reserve") (if such
approval is then required), redeem the Corresponding Junior Subordinated
Debentures (and cause the redemption of the Trust Securities) or may terminate
each Issuer Trust and, after satisfaction of liabilities to creditors of such
Issuer Trust as required by applicable law, cause the Corresponding Junior
Subordinated Debentures to be distributed to the holders of Preferred
Securities in liquidation of their interests in such Issuer Trust. See
"Description of Preferred Securities--Liquidation Distribution Upon
Termination."
Holders of the Preferred Securities will be entitled to receive preferential
cumulative Distributions accumulating from the date of original issuance and
payable periodically as specified in an accompanying Prospectus Supplement. If
provided in an accompanying Prospectus Supplement, the Corporation will have
the right to defer payments of interest on any series of Corresponding Junior
Subordinated Debentures by extending the interest payment period thereon at
any time or from time to time for one or more Extension Periods (which shall
not extend beyond the Stated Maturity of the Corresponding Junior Subordinated
Debentures). If interest payments are so deferred, Distributions on the
Related Preferred Securities will also be deferred and the Corporation will
not be permitted, subject to certain exceptions set forth herein, to declare
or pay any cash distributions with respect to the Corporation's capital stock
or debt securities that rank pari passu in all respects with or junior to the
Corresponding Junior Subordinated Debentures. During an Extension Period,
Distributions will continue to accumulate (and the Preferred Securities will
accumulate additional Distributions thereon at the rate per annum set forth in
the related Prospectus Supplement). See "Description of Preferred Securities--
Distributions."
Taken together, the Corporation's obligations under each series of Junior
Subordinated Debentures, the Junior Subordinated Indenture, the related Trust
Agreement, the related Expense Agreement and the related Guarantee (each, as
defined herein), in the aggregate, provide a full, irrevocable and
unconditional guarantee of payments of distributions and other amounts due on
the related series of Preferred Securities. See "Relationship Among the
Preferred Securities, the Corresponding Junior Subordinated Debentures and the
Guarantees--Full and Unconditional Guarantee."
2
<PAGE>
(cover page continued)
The Corporation may from time to time also offer in one or more series or
issuances its unsecured debt securities, which may be either senior (the
"Senior Securities") or subordinated (the "Subordinated Securities," the
Senior Securities and the Subordinated Securities being referred to
collectively as the "Debt Securities"). The Senior Securities will rank
equally with all other unsubordinated and unsecured indebtedness of the
Corporation. The Subordinated Securities will be subordinated to all existing
and future Senior Debt (as defined in "Description of Debt Securities--
Subordination") of the Corporation.
The Junior Subordinated Debentures, Preferred Securities and Debt Securities
may be offered in amounts, at prices and on terms to be determined at the time
of offering; provided, however, the aggregate initial public offering price of
all Junior Subordinated Debentures (other than Corresponding Junior
Subordinated Debentures), Preferred Securities (including the Corresponding
Junior Subordinated Debentures), and Debt Securities, issued pursuant to the
Registration Statement of which this Prospectus forms a part, shall not exceed
$1,500,000,000. Certain specific terms of the Junior Subordinated Debentures,
Preferred Securities or Debt Securities, in respect of which this Prospectus
is being delivered, will be described in an accompanying Prospectus
Supplement.
The Prospectus Supplement also will contain information, as applicable,
about certain United States Federal income tax consequences relating to the
Junior Subordinated Debentures, Preferred Securities or Debt Securities.
The Junior Subordinated Debentures, Preferred Securities and Debt Securities
may be sold to or through underwriters, through dealers, remarketing firms or
agents or directly to purchasers. See "Plan of Distribution." The names of any
underwriters, dealers, remarketing firms or agents involved in the sale of
Junior Subordinated Debentures, Preferred Securities or Debt Securities in
respect of which this Prospectus is being delivered and any applicable fee,
commission or discount arrangements with them will be set forth in a
Prospectus Supplement. The Prospectus Supplement will state whether the Junior
Subordinated Debentures, Preferred Securities or Debt Securities will be
listed on any national securities exchange or automated quotation system. If
the Junior Subordinated Debentures, Preferred Securities or Debt Securities
are not listed on any national securities exchange or automated quotation
system, there can be no assurance that there will be a secondary market for
the Junior Subordinated Debentures, Preferred Securities or Debt Securities.
This Prospectus may not be used to consummate sales of Junior Subordinated
Debentures, Preferred Securities or Debt Securities, unless accompanied by a
Prospectus Supplement.
3
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information can be inspected and copied at the
public reference facilities of the Commission at Room 1024, 450 Fifth Street,
N.W., Washington, D.C. 20549 and at the regional offices of the Commission
located at 7 World Trade Center, 13th Floor, Suite 1300, New York, New York
10048 and Suite 1400, Citicorp Center, 14th Floor, 500 West Madison Street,
Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates by writing to the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549. Such material may also be
accessed electronically by means of the Commission's home page on the Internet
at http://www.sec.gov. In addition, such reports, proxy statements and other
information concerning the Corporation can be inspected at the offices of the
New York, Chicago and Pacific Stock Exchanges.
The Corporation and the Issuer Trusts have filed with the Commission a
Registration Statement on Form S-3 (together with all amendments and exhibits
thereto, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the securities offered hereby.
This Prospectus does not contain all the information set forth in the
Registration Statement, certain portions of which have been omitted as
permitted by the rules and regulations of the Commission. For further
information with respect to the Corporation and the securities offered hereby,
reference is made to the Registration Statement and the exhibits and the
financial statements, notes and schedules filed as a part thereof or
incorporated by reference therein, which may be inspected at the public
reference facilities of the Commission, at the addresses set forth above.
Statements made in this Prospectus concerning the contents of any documents
referred to herein are not necessarily complete, and in each instance are
qualified in all respects by reference to the copy of such document filed as
an exhibit to the Registration Statement.
No separate financial statements of any Issuer Trust have been included
herein. The Corporation and the Issuer Trusts do not consider that such
financial statements would be material to holders of the Preferred Securities
because each Issuer Trust is a newly formed special purpose entity, has no
operating history or independent operations and is not engaged in and does not
propose to engage in any activity other than holding as trust assets the
Corresponding Junior Subordinated Debentures of the Corporation and issuing
the Trust Securities. See "The Issuer Trusts," "Description of Preferred
Securities," "Description of Junior Subordinated Debentures--Corresponding
Junior Subordinated Debentures" and "Description of Guarantees." In addition,
the Corporation does not expect that any of the Issuer Trusts will be filing
reports under the Exchange Act with the Commission.
4
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the Commission are
incorporated into this Prospectus by reference:
1. the Corporation's Annual Report on Form 10-K for the year ended
December 31, 1995;
2. the Corporation's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1996, and June 30, 1996; and
3. the Corporation's Current Reports on Form 8-K dated January 17, 1996,
February 5, 1996, March 4, 1996, April 17, 1996, July 17, 1996 and October
16, 1996.
Each document or report filed by the Corporation pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the
termination of any offering of securities made by this Prospectus shall be
deemed to be incorporated by reference into this Prospectus and to be a part
of this Prospectus from the date of filing of such document. Any statement
contained herein, or in a document all or a portion of which is incorporated
or deemed to be incorporated by reference herein, shall be deemed to be
modified or superseded for purposes of the Registration Statement and this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement or this
Prospectus.
The Corporation will provide without charge to any person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference herein
(other than exhibits not specifically incorporated by reference into the texts
of such documents). Requests for such documents should be directed to
BankAmerica Corporation, Corporate Secretary's Office, P.O. Box 37000, San
Francisco, California 94137, telephone number (415) 622-3530.
5
<PAGE>
BANKAMERICA CORPORATION
The Corporation is a bank holding company registered under the Bank Holding
Company Act of 1956, as amended (the "BHC Act"), and was incorporated in the
State of Delaware in 1968. At September 30, 1996, the Corporation was one of
the three largest bank holding companies in the United States, based on total
assets. The Corporation's principal executive offices are located at 555
California Street, San Francisco, California 94104 (telephone (415) 622-3530).
The Corporation's largest subsidiaries, based on total assets, are Bank of
America National Trust and Savings Association ("Bank of America"), Bank of
America Illinois ("BAI"), and Bank of America NW, National Association,
formerly Seattle-First National Bank ("BANW"). Bank of America became a
subsidiary of the Corporation in 1969. Bank of America began business in San
Francisco, California, as Bank of Italy in 1904 and adopted its present name
in 1930. BAI, headquartered in Chicago, Illinois, was acquired by the
Corporation in 1994. BANW, the largest commercial bank in Washington based on
total assets at September 30, 1996, was acquired by the Corporation in 1983.
The Corporation, through its network of subsidiaries, provides banking and
other financial services throughout the United States and in selected
international markets to customers and business customers, including
corporations, governments and other institutions.
Because the Corporation is a holding company, the rights of its creditors,
including the holders of the Junior Subordinated Debentures and Debt
Securities, to participate in the assets of any subsidiary upon the latter's
liquidation or reorganization will be subject to the claims of the
subsidiary's creditors, which will take priority except to the extent that the
Corporation may itself be a creditor with recognized claims against the
subsidiary. There are also various legal limitations on the extent to which
Bank of America, BAI, BANW and certain other bank subsidiaries of the
Corporation may pay dividends, extend credit or otherwise supply funds to the
Corporation or various of its affiliates.
Under the National Bank Act and other federal laws, the Corporation's
national banking subsidiaries are subject to prohibitions on the payment of
dividends in certain circumstances and to restrictions on the amount that each
can pay without the prior approval of the Office of the Comptroller of the
Currency. Without the Comptroller's approval, dividends for a given year
cannot exceed each bank's net income (as defined by national banking laws) for
that year and retained net income from the preceding two years. In addition,
dividends may not be paid in excess of each bank's undivided profits, subject
to other applicable provisions of law. Based upon these laws, Bank of America
could have declared dividends for 1995 of $2,466 million, BANW could have
declared dividends of $338 million, and the Corporation's other national
banking subsidiaries could have declared dividends of $6 million. At December
31, 1995, the unutilized dividends allowed under these laws for Bank of
America, BANW, and other national banking subsidiaries were $866 million, $45
million, and $6 million, respectively.
In addition, state-chartered member and non-member banking subsidiaries are
subject to dividend limitations imposed by applicable federal or state law.
State-chartered member banking subsidiaries could have declared dividends of
$61 million without approval of the Federal Reserve for 1995. State-chartered
nonmember banking subsidiaries could have declared dividends without state
approval of $158 million for 1995. At December 31, 1995, the unutilized
dividends allowed under these laws for the state-chartered member and
nonmember banking subsidiaries were $4 million and $58 million, respectively.
The Corporation's subsidiary, Bank of America, FSB, is subject to regulatory
restrictions by the Office of Thrift Supervision on its payment of dividends.
Under these restrictions, Bank of America, FSB could have declared dividends
without regulatory approval of $101 million for 1995. At December 31, 1995,
the unutilized dividends allowed under these laws were $73 million.
6
<PAGE>
The depository subsidiaries are also subject to certain restrictions of the
Federal Reserve Act on loans each subsidiary may extend to their parent
companies. Among other things, the aggregate of such loans may not exceed 10%
of the sum of such subsidiary's capital stock and surplus. Such loans must be
secured by collateral with a value between 100% and 130% of the loan,
depending on the type of collateral. Under these restrictions, and assuming
the Corporation provided the collateral required, Bank of America, BAI, BANW,
Bank of America National Association and other depository subsidiaries could
have loaned to the Corporation a maximum of $1,198 million, $163 million, $207
million, $95 million, and $308 million, respectively, at December 31, 1995.
The net assets of depository subsidiaries restricted from flowing to the
Corporation by legal limitations were $17,576 million at December 31, 1995.
The Financial Institutions Reform, Recovery and Enforcement Act of 1989
contains a "cross-guarantee" provision which could result in any insured
depository institution owned by the Corporation (i.e., any bank subsidiary)
being assessed for losses incurred by the Federal Deposit Insurance
Corporation ("FDIC") in connection with assistance provided to, or the failure
of, any other depository institution owned by the Corporation. Under Federal
Reserve policy, the Corporation is expected to act as a source of financial
strength and to commit resources to support each subsidiary bank. As a result
of such policy and the legislation described below, the Corporation may be
required to commit resources to its subsidiary banks in circumstances where it
might not do so absent such policy.
The Federal Deposit Insurance Corporation Improvement Act of 1991 ("FDICIA")
provides, among other things, that if a bank does not meet any one of its
capital requirements set by its regulators, the bank must submit a capital
restoration plan for improving its capital. A holding company of a bank must
guarantee that the bank will meet its capital restoration plan, subject to
certain limitations. If such a guarantee were deemed to be a commitment to
maintain capital under the Federal Bankruptcy Code, a claim under such
guarantee in a bankruptcy proceeding involving the holding company would be
entitled to a priority over third party creditors of the holding company. In
addition, FDICIA prohibits a bank from making a capital distribution to its
holding company or otherwise if it fails to meet any capital requirements or
if the payment of such capital distribution would cause it to fail to meet any
capital requirements. Furthermore, under certain circumstances, a holding
company of a bank that fails to meet certain of its capital requirements may
be prohibited from making any capital distributions to its shareholders or
otherwise. At September 30, 1996, the capital ratios of each of the
Corporation's banking subsidiaries exceeded the "well capitalized" threshold
prescribed in the rules of the subsidiary's principal federal regulator. The
categories of capital so prescribed are determined by the regulators solely
for the purposes of meeting their responsibilities under federal law, and the
category in which each subsidiary falls may not necessarily constitute an
accurate representation of its overall financial condition or prospects.
7
<PAGE>
THE ISSUER TRUSTS
Each Issuer Trust is a statutory business trust created under Delaware law
pursuant to (i) a trust agreement executed by the Corporation, as sponsor of
the Issuer Trust, and the Delaware Trustee (as defined herein) of such Issuer
Trust and (ii) the filing of a certificate of trust with the Delaware
Secretary of State. Each trust agreement will be amended and restated in its
entirety (each, as so amended and restated, a "Trust Agreement") substantially
in the form filed as an exhibit to the Registration Statement of which this
Prospectus forms a part. Each Trust Agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Each Issuer Trust exists for the exclusive purposes of (i)
issuing and selling its Trust Securities, (ii) using the proceeds from the
sale of such Trust Securities to acquire a corresponding series of
Corresponding Junior Subordinated Debentures issued by the Corporation and
(iii) engaging in only those other activities necessary, convenient or
incidental thereto. Accordingly, the Corresponding Junior Subordinated
Debentures and the right to reimbursement of expenses under the related
Expense Agreement will be the sole assets of each Issuer Trust, and payments
under the Corresponding Junior Subordinated Debentures and the related Expense
Agreement will be the sole revenue of each Issuer Trust.
All of the Common Securities of each Issuer Trust will be owned by the
Corporation. The Common Securities of an Issuer Trust will rank pari passu,
and payments will be made thereon pro rata, with the Preferred Securities of
such Issuer Trust, except that upon the occurrence and continuance of an event
of default under a Trust Agreement resulting from a Debenture Event of Default
(as defined herein), the rights of the Corporation as holder of the Common
Securities to payment in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of the Preferred Securities of such Issuer Trust. See "Description of
Preferred Securities--Subordination of Common Securities." The Corporation
will acquire Common Securities in an aggregate liquidation amount equal to not
less than 3% of the total capital of each Issuer Trust.
Unless otherwise specified in the applicable Prospectus Supplement, each
Issuer Trust has a term of approximately 55 years, but may terminate earlier
as provided in the applicable Trust Agreement. Each Issuer Trust's business
and affairs are conducted by its trustees, each of which have been appointed
by the Corporation as holder of the Common Securities. The trustees for each
Issuer Trust will be Bankers Trust Company, as the Property Trustee (the
"Property Trustee"), Bankers Trust (Delaware), as the Delaware Trustee (the
"Delaware Trustee"), and three individual trustees (the "Administrative
Trustees") who are employees or officers of or affiliated with the Corporation
(collectively, the "Issuer Trustees"). Bankers Trust Company, as Property
Trustee, will act as sole indenture trustee under each Trust Agreement for
purposes of compliance with the Trust Indenture Act. Bankers Trust Company
will also act as trustee under the Guarantees and the Junior Subordinated
Indenture (each as defined herein). See "Description of Guarantees" and
"Description of Junior Subordinated Debentures." The holder of the Common
Securities of an Issuer Trust, or the holders of a majority in liquidation
preference of the Related Preferred Securities if a Debenture Event of Default
under the Trust Agreement for such Issuer Trust has occurred and is
continuing, will be entitled to appoint, remove or replace the Property
Trustee and/or the Delaware Trustee for such Issuer Trust. In no event will
the holders of the Preferred Securities have the right to vote to appoint,
remove or replace the Administrative Trustees; such voting rights are vested
exclusively in the holder of the Common Securities. The duties and obligations
of each Issuer Trustee are governed by the applicable Trust Agreement. The
Corporation will pay all fees and expenses related to each Issuer Trust and
the offering of the Preferred Securities and will pay, directly or indirectly,
all ongoing costs, expenses and liabilities of each Issuer Trust.
The principal executive office of each Issuer Trust is 555 California
Street, San Francisco, California 94104 and its telephone number is (415) 688-
3530.
8
<PAGE>
USE OF PROCEEDS
All of the proceeds from the sale of the Preferred Securities will be
invested by each Issuer Trust in the Corresponding Junior Subordinated
Debentures. Except as otherwise set forth in the applicable Prospectus
Supplement, the net proceeds from the sale of the Corporation's Junior
Subordinated Debentures (including Corresponding Junior Subordinated
Debentures) and Debt Securities will be used for general corporate purposes,
which may include without limitation funding investments in, or extension of
credit to, the Corporation's subsidiaries, repayment of maturing obligations,
redemption of outstanding indebtedness or preferred stock or other securities
and financing possible future acquisitions. Pending such use, the Corporation
may temporarily invest the net proceeds or may use them to reduce short-term
indebtedness.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures are to be issued in one or more series
under a Junior Subordinated Indenture, as supplemented from time to time (as
so supplemented, the "Junior Subordinated Indenture"), between the Corporation
and Bankers Trust Company, as trustee (the "Debenture Trustee"). This summary
of certain terms and provisions of the Junior Subordinated Debentures,
Corresponding Junior Subordinated Debentures and the Junior Subordinated
Indenture does not purport to be complete and is subject to, and is qualified
in its entirety by reference to, the Junior Subordinated Indenture, the form
of which is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part, and to the Trust Indenture Act. The Junior
Subordinated Indenture is qualified under the Trust Indenture Act. Whenever
particular defined terms of the Junior Subordinated Indenture (as supplemented
or amended from time to time) are referred to herein or in a Prospectus
Supplement, such defined terms are incorporated herein or therein by
reference.
GENERAL
Each series of Junior Subordinated Debentures will rank pari passu with all
other series of Junior Subordinated Debentures and will be unsecured and
subordinate and junior in right of payment to the extent and in the manner set
forth in the Junior Subordinated Indenture to all Senior Indebtedness of the
Corporation. See "--Subordination." Because the Corporation is a holding
company, the right of the Corporation to participate in any distribution of
assets of any subsidiary upon such subsidiary's liquidation or reorganization
or otherwise, is subject to the prior claims of creditors of the subsidiary,
except to the extent the Corporation may itself be recognized as a creditor of
that subsidiary. Accordingly, the Junior Subordinated Debentures will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Junior Subordinated Debentures
should look only to the assets of the Corporation for payments on the Junior
Subordinated Debentures. Except as otherwise provided in the applicable
Prospectus Supplement, the Junior Subordinated Indenture does not limit the
incurrence or issuance of other secured or unsecured debt of the Corporation,
including Senior Indebtedness, whether under the Junior Subordinated
Indenture, any other indenture that the Corporation may enter into in the
future or otherwise. See "--Subordination" and the Prospectus Supplement
relating to any offering of Securities.
The Junior Subordinated Debentures will be issuable in one or more series
pursuant to an indenture supplemental to the Junior Subordinated Indenture or
a resolution of the Corporation's Board of Directors or a committee thereof.
The applicable Prospectus Supplement or Prospectus Supplements will describe
the following terms of the Junior Subordinated Debentures: (1) the title of
the Junior Subordinated Debentures; (2) any limit upon the aggregate principal
amount of the Junior Subordinated Debentures; (3) the date or dates on which
the principal of the Junior Subordinated Debentures is payable (the "Stated
Maturity") or the method of determination thereof; (4) the rate or rates, if
any, at which the Junior
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Subordinated Debentures shall bear interest, the Interest Payment Dates on
which any such interest shall be payable, the right, if any, of the
Corporation to defer or extend an Interest Payment Date, and the Regular
Record Date for any interest payable on any Interest Payment Date or the
method by which any of the foregoing shall be determined; (5) the place or
places where, subject to the terms of the Junior Subordinated Indenture as
described below under "Payment and Paying Agents", the principal of and
premium, if any, and interest on the Junior Subordinated Debentures will be
payable and where, subject to the terms of the Junior Subordinated Indenture
as described below under "--Denominations, Registration and Transfer," the
Junior Subordinated Debentures may be presented for registration of transfer
or exchange and the place or places where notices and demands to or upon the
Corporation in respect of the Junior Subordinated Debentures and the Junior
Subordinated Indenture may be made ("Place of Payment"); (6) any period or
periods within or date or dates on which, the price or prices at which and the
terms and conditions upon which Junior Subordinated Debentures may be
redeemed, in whole or in part, at the option of the Corporation; (7) the
obligation or the right, if any, of the Corporation or a holder thereof to
redeem, purchase or repay the Junior Subordinated Debentures and the period or
periods within which, the price or prices at which, the currency or currencies
(including currency unit or units) in which and the other terms and conditions
upon which the Junior Subordinated Debentures shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation; (8) the
denominations in which any Junior Subordinated Debentures shall be issuable if
other than denominations of $25 and any integral multiple thereof; (9) if
other than in U.S. Dollars, the currency or currencies (including currency
unit or units) in which the principal of (and premium, if any) and interest,
if any, on the Junior Subordinated Debentures shall be payable, or in which
the Junior Subordinated Debentures shall be denominated; (10) any additions,
modifications or deletions in the Events of Default or covenants of the
Corporation specified in the Junior Subordinated Indenture with respect to the
Junior Subordinated Debentures; (11) if other than the principal amount
thereof, the portion of the principal amount of Junior Subordinated Debentures
that shall be payable upon declaration of acceleration of the maturity
thereof; (12) any additions or changes to the Junior Subordinated Indenture
with respect to a series of Junior Subordinated Debentures as shall be
necessary to permit or facilitate the issuance of such series in bearer form,
registrable or not registrable as to principal, and with or without interest
coupons; (13) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Junior Subordinated Debentures and
the manner in which such amounts will be determined; (14) any terms and
conditions relating to the issuance of a temporary Global Security
representing all of the Junior Subordinated Debentures of such series and the
exchange of such temporary Global Security for definitive Junior Subordinated
Debentures of such series; (15) subject to the terms described under "--Global
Junior Subordinated Debentures," whether the Junior Subordinated Debentures of
the series shall be issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depository for such Global
Securities, which Depository shall be a clearing agency registered under the
Exchange Act; (16) the appointment of any Paying Agent or Agents; (17) the
terms and conditions of any obligation or right of the Corporation or a holder
to convert or exchange the Junior Subordinated Debentures into Preferred
Securities or Debt Securities; (18) the form of Trust Agreement and Guarantee
Agreement, if applicable; (19) the relative degree, if any, to which such
Junior Subordinated Debentures of the series shall be senior to or be
subordinated to other series of such Junior Subordinated Debentures or other
indebtedness of the Corporation in right of payment, whether such other series
of Junior Subordinated Debentures or other indebtedness are outstanding or
not; and (20) any other terms of the Junior Subordinated Debentures not
inconsistent with the provisions of the Junior Subordinated Indenture.
Junior Subordinated Debentures may be sold at a substantial discount below
their stated principal amount, bearing no interest or interest at a rate which
at the time of issuance is below market rates. Certain United States Federal
income tax consequences and special considerations applicable to any such
Junior Subordinated Debentures will be described in the applicable Prospectus
Supplement.
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If the purchase price of any of the Junior Subordinated Debentures is
payable in one or more foreign currencies or currency units or if any Junior
Subordinated Debentures are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or interest, if any,
on any Junior Subordinated Debentures is payable in one or more foreign
currencies or currency units, the restrictions, elections, certain United
States Federal income tax consequences, specific terms and other information
with respect to such issue of Junior Subordinated Debentures and such foreign
currency or currency units will be set forth in the applicable Prospectus
Supplement.
If any index is used to determine the amount of payments of principal of,
premium, if any, or interest on any series of Junior Subordinated Debentures,
special United States Federal income tax, accounting and other considerations
applicable thereto will be described in the applicable Prospectus Supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable Prospectus Supplement, the
Junior Subordinated Debentures will be issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof.
Junior Subordinated Debentures of any series will be exchangeable for other
Junior Subordinated Debentures of the same issue and series, of any authorized
denominations, of a like aggregate principal amount, of the same Original
Issue Date and Stated Maturity and bearing the same interest rate.
Junior Subordinated Debentures may be presented for exchange as provided
above, and may be presented for registration of transfer (with the form of
transfer endorsed thereon, or a satisfactory written instrument of transfer,
duly executed), at the office of the appropriate Securities Registrar or at
the office of any transfer agent designated by the Corporation for such
purpose with respect to any series of Junior Subordinated Debentures and
referred to in the applicable Prospectus Supplement, without service charge
and upon payment of any taxes and other governmental charges as described in
the Junior Subordinated Indenture. The Corporation will appoint the Trustee as
Securities Registrar under the Junior Subordinated Indenture. If the
applicable Prospectus Supplement refers to any transfer agents (in addition to
the Securities Registrar) initially designated by the Corporation with respect
to any series of Junior Subordinated Debentures, the Corporation may at any
time rescind the designation of any such transfer agent or approve a change in
the location through which any such transfer agent acts, provided that the
Corporation maintains a transfer agent in each Place of Payment for such
series. The Corporation may at any time designate additional transfer agents
with respect to any series of Junior Subordinated Debentures.
In the event of any redemption, neither the Corporation nor the Debenture
Trustee shall be required to (i) issue, register the transfer of or exchange
Junior Subordinated Debentures of any series during a period beginning at the
opening of business 15 days before the day of selection for redemption of
Junior Subordinated Debentures of that series and ending at the close of
business on the day of mailing of the relevant notice of redemption or (ii)
transfer or exchange any Junior Subordinated Debentures so selected for
redemption, except, in the case of any Junior Subordinated Debentures being
redeemed in part, any portion thereof not to be redeemed.
GLOBAL JUNIOR SUBORDINATED DEBENTURES
The Junior Subordinated Debentures of a series may be issued in whole or in
part in the form of one or more Global Junior Subordinated Debentures that
will be deposited with, or on behalf of, a depository (the "Depository")
identified in the Prospectus Supplement relating to such series. Global Junior
Subordinated Debentures may be issued only in fully registered form and in
either temporary or permanent form. Unless and until it is exchanged in whole
or in part for the individual Junior Subordinated Debentures represented
thereby, a Global Junior Subordinated Debenture may not be transferred except
as a whole by the Depository for such Global Junior Subordinated Debenture to
a
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nominee of such Depository or by a nominee of such Depository to such
Depository or another nominee of such Depository or by the Depository or any
nominee to a successor Depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a series of
Junior Subordinated Debentures will be described in the Prospectus Supplement
relating to such series. The Corporation anticipates that the following
provisions will generally apply to depository arrangements.
Upon the issuance of a Global Junior Subordinated Debenture, and the deposit
of such Global Junior Subordinated Debenture with or on behalf of the
Depository, the Depository for such Global Junior Subordinated Debenture or
its nominee will credit, on its book-entry registration and transfer system,
the respective principal amounts of the individual Junior Subordinated
Debentures represented by such Global Junior Subordinated Debenture to the
accounts of persons that have accounts with such Depository ("Participants").
Such accounts shall be designated by the dealers, underwriters or agents with
respect to such Junior Subordinated Debentures or by the Corporation if such
Junior Subordinated Debentures are offered and sold directly by the
Corporation. Ownership of beneficial interests in a Global Junior Subordinated
Debenture will be limited to Participants or persons that may hold interests
through Participants. Ownership of beneficial interests in such Global Junior
Subordinated Debenture will be shown on, and the transfer of that ownership
will be effected only through, records maintained by the applicable Depository
or its nominee (with respect to interests of Participants) and the records of
Participants (with respect to interests of persons who hold through
Participants). The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
limits and such laws may impair the ability to transfer beneficial interests
in a Global Junior Subordinated Debenture.
So long as the Depository for a Global Junior Subordinated Debenture, or its
nominee, is the registered owner of such Global Junior Subordinated Debenture,
such Depository or such nominee, as the case may be, will be considered the
sole owner or holder of the Junior Subordinated Debentures represented by such
Global Junior Subordinated Debenture for all purposes under the Junior
Subordinated Indenture governing such Junior Subordinated Debentures. Except
as provided below, owners of beneficial interests in a Global Junior
Subordinated Debenture will not be entitled to have any of the individual
Junior Subordinated Debentures of the series represented by such Global Junior
Subordinated Debenture registered in their names, will not receive or be
entitled to receive physical delivery of any such Junior Subordinated
Debentures of such series in definitive form and will not be considered the
owners or holders thereof under the Junior Subordinated Indenture.
Payments of principal of (and premium, if any) and interest on individual
Junior Subordinated Debentures represented by a Global Junior Subordinated
Debenture registered in the name of a Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner
of the Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures. None of the Corporation, the Debenture Trustee, any
Paying Agent, or the Securities Registrar for such Junior Subordinated
Debentures will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of the Global Junior Subordinated Debenture representing such Junior
Subordinated Debentures or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Corporation expects that the Depository for a series of Junior
Subordinated Debentures or its nominee, upon receipt of any payment of
principal, premium or interest in respect of a permanent Global Junior
Subordinated Debenture representing any of such Junior Subordinated
Debentures, immediately will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interest in the principal
amount of such Global Junior Subordinated Debenture for such Junior
Subordinated Debentures as shown on the records of such Depository or its
nominee. The Corporation also expects that payments by Participants to owners
of beneficial interests in such Global
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Junior Subordinated Debenture held through such Participants will be governed
by standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name." Such payments will be the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depository for a series of Junior Subordinated Debentures is at any time
unwilling, unable or ineligible to continue as depository and a successor
depository is not appointed by the Corporation within 90 days, the Corporation
will issue individual Junior Subordinated Debentures of such series in
exchange for the Global Junior Subordinated Debenture representing such series
of Junior Subordinated Debentures. In addition, the Corporation may at any
time and in its sole discretion, subject to any limitations described in the
Prospectus Supplement relating to such Junior Subordinated Debentures,
determine not to have any Junior Subordinated Debentures of such series
represented by one or more Global Junior Subordinated Debentures and, in such
event, will issue individual Junior Subordinated Debentures of such series in
exchange for the Global Junior Subordinated Debenture or Securities
representing such series of Junior Subordinated Debentures. Further, if the
Corporation so specifies with respect to the Junior Subordinated Debentures of
a series, an owner of a beneficial interest in a Global Junior Subordinated
Debenture representing Junior Subordinated Debentures of such series may, on
terms acceptable to the Corporation, the Debenture Trustee and the Depository
for such Global Junior Subordinated Debenture, receive individual Junior
Subordinated Debentures of such series in exchange for such beneficial
interests, subject to any limitations described in the Prospectus Supplement
relating to such Junior Subordinated Debentures. In any such instance, an
owner of a beneficial interest in a Global Junior Subordinated Debenture will
be entitled to physical delivery of individual Junior Subordinated Debentures
of the series represented by such Global Junior Subordinated Debenture equal
in principal amount to such beneficial interest and to have such Junior
Subordinated Debentures registered in its name. Individual Junior Subordinated
Debentures of such series so issued will be issued in denominations, unless
otherwise specified by the Corporation, of $25 and integral multiples thereof.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of (and premium, if any) and any interest on Junior Subordinated
Debentures will be made at the office of the Debenture Trustee in the City of
New York or at the office of such Paying Agent or Paying Agents as the
Corporation may designate from time to time in the applicable Prospectus
Supplement, except that at the option of the Corporation payment of any
interest may be made (i) except in the case of Global Junior Subordinated
Debentures, by check mailed to the address of the Person entitled thereto as
such address shall appear in the Securities Register or (ii) by transfer to an
account maintained by the Person entitled thereto as specified in the
Securities Register, provided that proper transfer instructions have been
received by the Regular Record Date. Unless otherwise indicated in the
applicable Prospectus Supplement, payment of any interest on Junior
Subordinated Debentures will be made to the Person in whose name such Junior
Subordinated Debenture is registered at the close of business on the Regular
Record Date for such interest, except in the case of Defaulted Interest. The
Corporation may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent; however the Corporation will at all times be
required to maintain a Paying Agent in each Place of Payment for each series
of Junior Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any Paying Agent, or then
held by the Corporation in trust, for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debenture and
remaining unclaimed for two years after such principal (and premium, if any)
or interest has become due and payable shall, at the request of the
Corporation, be repaid to the Corporation and the holder of such Junior
Subordinated Debenture shall thereafter look, as a general unsecured creditor,
only to the Corporation for payment thereof.
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OPTION TO EXTEND INTEREST PAYMENT DATE
If provided in the applicable Prospectus Supplement, the Corporation shall
have the right at any time and from time to time during the term of any series
of Junior Subordinated Debentures to defer payment of interest for such number
of consecutive interest payment periods as may be specified in the applicable
Prospectus Supplement (each, an "Extension Period"), subject to the terms,
conditions and covenants, if any, specified in such Prospectus Supplement,
provided that such Extension Period may not extend beyond the Stated Maturity
of such series of Junior Subordinated Debentures. Certain United States
Federal income tax consequences and special considerations applicable to any
such Junior Subordinated Debentures will be described in the applicable
Prospectus Supplement.
REDEMPTION
Unless otherwise indicated in the applicable Prospectus Supplement, Junior
Subordinated Debentures will not be subject to any sinking fund.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Corporation may, at its option and subject to receipt of prior approval by the
Federal Reserve if then required under applicable capital guidelines or
policies, redeem the Junior Subordinated Debentures of any series in whole at
any time or in part from time to time. If the Junior Subordinated Debentures
of any series are so redeemable only on or after a specified date or upon the
satisfaction of additional conditions, the applicable Prospectus Supplement
will specify such date or describe such conditions. For a description of
redemption rights relating to Corresponding Junior Subordinated Debentures,
see "--Corresponding Junior Subordinated Debentures" and "Description of
Preferred Securities--Redemption or Exchange." Junior Subordinated Debentures
in denominations larger than $25 may be redeemed in part but only in integral
multiples of $25. Except as otherwise specified in the applicable Prospectus
Supplement, the redemption price for any Junior Subordinated Debenture so
redeemed shall equal any accrued and unpaid interest thereon to but excluding
the redemption date, plus the principal amount thereof.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Junior Subordinated
Debentures to be redeemed at its registered address. Unless the Corporation
defaults in payment of the redemption price, on and after the redemption date
interest ceases to accrue on such Junior Subordinated Debentures or portions
thereof called for redemption.
RESTRICTIONS ON CERTAIN PAYMENTS
The Corporation will also covenant, as to each series of Junior Subordinated
Debentures, that it will not, and will not permit any subsidiary of the
Corporation to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any
of the Corporation's capital stock or (ii) make any payment of principal of or
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including other Junior Subordinated Debentures)
that rank pari passu in all respects with or junior in interest to the Junior
Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Corporation of the debt securities of any subsidiary of the
Corporation if such guarantee ranks pari passu with or junior in interest to
the Junior Subordinated Debentures (other than (a) dividends or distributions
in common stock of the Corporation, (b) any declaration of a dividend in
connection with the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under any
Guarantee and (d) purchases of common stock related to the issuance of common
stock or rights under any of the Corporation's benefit plans for its
directors, officers or employees), if at such time (i) there shall have
occurred any event of which the Corporation has actual knowledge that (a) with
the giving of notice or the lapse of time, or both, would constitute an "Event
of Default" under the
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Junior Subordinated Indenture with respect to the Junior Subordinated
Debentures of such series and (b) in respect of which the Corporation shall
not have taken reasonable steps to cure, (ii) if such Junior Subordinated
Debentures are held by an Issuer Trust of a series of Related Preferred
Securities, the Corporation shall be in default with respect to its payment of
any obligations under the Guarantee relating to such Related Preferred
Securities or (iii) the Corporation shall have given notice of its selection
of an Extension Period as provided in the Junior Subordinated Indenture with
respect to the Junior Subordinated Debentures of such series and shall not
have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing.
MODIFICATION OF JUNIOR SUBORDINATED INDENTURE
From time to time the Corporation and the Debenture Trustee may, without the
consent of the holders of any series of Junior Subordinated Debentures, amend,
waive or supplement the Junior Subordinated Indenture for specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies
(provided that any such action does not materially adversely affect the
interest of the holders of any series of Junior Subordinated Debentures or, in
the case of Corresponding Junior Subordinated Debentures, the holders of the
Related Preferred Securities so long as they remain outstanding) and
qualifying, or maintaining the qualification of, the Indenture under the Trust
Indenture Act. The Junior Subordinated Indenture contains provisions
permitting the Corporation and the Debenture Trustee, with the consent of the
holders of not less than a majority in principal amount of each outstanding
series of Junior Subordinated Debentures affected, to modify the Junior
Subordinated Indenture in a manner affecting the rights of the holders of such
series of the Junior Subordinated Debentures; provided, that no such
modification may, without the consent of the holder of each outstanding Junior
Subordinated Debenture so affected, (i) change the Stated Maturity of any
series of Junior Subordinated Debentures (except as otherwise specified in the
applicable Prospectus Supplement), or reduce the principal amount thereof, or
reduce the rate or extend the time of payment of interest thereon or (ii)
reduce the percentage of principal amount of Junior Subordinated Debentures of
any series, the holders of which are required to consent to any such
modification of the Junior Subordinated Indenture, provided that, in the case
of Corresponding Junior Subordinated Debentures, so long as any of the Related
Preferred Securities remain outstanding, no such modification may be made that
adversely affects the holders of such Preferred Securities in any material
respect, and no termination of the Junior Subordinated Indenture may occur,
and no waiver of any Debenture Event of Default or compliance with any
covenant under the Junior Subordinated Indenture may be effective, without the
prior consent of the holders of at least a majority of the aggregate
liquidation preference of such Related Preferred Securities unless and until
the principal of the Corresponding Junior Subordinated Debentures and all
accrued and unpaid interest thereon have been paid in full and certain other
conditions are satisfied.
In addition, the Corporation and the Debenture Trustee may execute, without
the consent of any holder of Junior Subordinated Debentures, any supplemental
Junior Subordinated Indenture for the purpose of creating any new series of
Junior Subordinated Debentures.
DEBENTURE EVENTS OF DEFAULT
The Junior Subordinated Indenture provides that any one or more of the
following described events with respect to a series of Junior Subordinated
Debentures that has occurred and is continuing constitutes a "Debenture Event
of Default" with respect to such series of Junior Subordinated Debentures:
(i) failure for 30 days to pay any interest on such series of the Junior
Subordinated Debentures, when due (subject to the deferral of any due date
in the case of an Extension Period); or
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(ii) failure to pay any principal or premium, if any, on such series of
Junior Subordinated Debentures when due whether at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(iii) failure to observe or perform in any material respect certain other
covenants contained in the Junior Subordinated Indenture for 90 days after
written notice to the Corporation from the Debenture Trustee or the holders
of at least 25% in aggregate outstanding principal amount of such series of
outstanding Junior Subordinated Debentures; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Corporation.
The holders of a majority in aggregate outstanding principal amount of such
series of Junior Subordinated Debentures have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee. The Debenture Trustee or the holders of not less than 25%
in aggregate outstanding principal amount of such series of Junior
Subordinated Debentures may declare the principal due and payable immediately
upon a Debenture Event of Default, and, in the case of Corresponding Junior
Subordinated Debentures, should the Debenture Trustee or such holders of such
Corresponding Junior Subordinated Debentures fail to make such declaration,
the holders of at least 25% in aggregate liquidation preference of the Related
Preferred Securities shall have such right. The holders of a majority in
aggregate outstanding principal amount of such series of Junior Subordinated
Debentures may annul such declaration and waive the default if the default
(other than the non-payment of the principal of such series of Junior
Subordinated Debentures which has become due solely by such acceleration) has
been cured and a sum sufficient to pay all matured installments of interest
and principal due otherwise than by acceleration has been deposited with the
Debenture Trustee. In the case of Corresponding Junior Subordinated
Debentures, should the holders of such Corresponding Junior Subordinated
Debentures fail to annul such declaration and waive such default, the holders
of a majority in aggregate liquidation preference of the Related Preferred
Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debentures affected thereby may, on behalf of the holders
of all the Junior Subordinated Debentures, waive any past default, except a
default in the payment of principal or interest (unless such default has been
cured and a sum sufficient to pay all matured installments of interest and
principal due otherwise than by acceleration has been deposited with the
Debenture Trustee) or a default in respect of a covenant or provision which
under the Junior Subordinated Indenture cannot be modified or amended without
the consent of the holder of each outstanding Junior Subordinated Debenture.
In the case of Corresponding Junior Subordinated Debentures, should the
holders of such Corresponding Junior Subordinated Debentures fail to annul
such declaration and waive such default, the holders of a majority in
aggregate liquidation preference of the Related Preferred Securities shall
have such right. The Corporation is required to file annually with the
Debenture Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Junior Subordinated Indenture.
In case a Debenture Event of Default shall occur and be continuing as to a
series of Corresponding Junior Subordinated Debentures, the Property Trustee
will have the right to declare the principal of and the interest on such
Corresponding Junior Subordinated Debentures, and any other amounts payable
under the Junior Subordinated Indenture, to be forthwith due and payable and
to enforce its other rights as a creditor with respect to such Corresponding
Junior Subordinated Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Corporation to pay interest or
principal on the related Junior Subordinated Debentures
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on the date such interest or principal is otherwise payable, a holder of
Preferred Securities may institute a legal proceeding directly against the
Corporation for enforcement of payment to such holder of the principal of or
interest on such related Junior Subordinated Debentures having a principal
amount equal to the aggregate Liquidation Amount of the related Preferred
Securities of such holder (a "Direct Action"). The Corporation may not amend
the Junior Subordinated Indenture to remove the foregoing right to bring a
Direct Action without the prior written consent of the holders of all of the
Preferred Securities. If the right to bring a Direct Action is removed, the
applicable Issuer Trust may become subject to the reporting obligations under
the Securities Exchange Act of 1934, as amended. The Corporation shall have
the right under the Junior Subordinated Indenture to set-off any payment made
to such holder of Preferred Securities by the Corporation in connection with a
Direct Action.
The holders of the Preferred Securities would not be able to exercise
directly any remedies other than those set forth in the preceding paragraph
available to the holders of the Junior Subordinated Debentures unless there
shall have been an Event of Default under the Trust Agreement. See
"Description of Preferred Securities--Events of Default; Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Junior Subordinated Indenture provides that the Corporation shall not
consolidate with or merge into any other Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, and no
Person shall consolidate with or merge into the Corporation or convey,
transfer or lease its properties and assets substantially as an entirety to
the Corporation, unless (i) in case the Corporation consolidates with or
merges into another Person or conveys or transfers its properties and assets
substantially as an entirety to any Person, the successor Person is organized
under the laws of the United States or any state or the District of Columbia,
and such successor Person expressly assumes the Corporation's obligations on
the Junior Subordinated Debentures issued under the Junior Subordinated
Indenture; (ii) immediately after giving effect thereto, no Debenture Event of
Default, and no event which, after notice or lapse of time or both, would
become a Debenture Event of Default, shall have happened and be continuing;
(iii) in the case of Corresponding Junior Subordinated Debentures, such
transaction is permitted under the related Trust Agreement and Guarantee and
does not give rise to any breach or violation of the related Trust Agreement
or Guarantee; and (iv) certain other conditions as prescribed in the Junior
Subordinated Indenture are met.
The general provisions of the Junior Subordinated Indenture do not afford
holders of the Junior Subordinated Debentures protection in the event of a
highly leveraged or other transaction involving the Corporation that may
adversely affect holders of the Junior Subordinated Debentures.
SATISFACTION AND DISCHARGE
The Junior Subordinated Indenture provides that when, among other things,
all Junior Subordinated Debentures not previously delivered to the Debenture
Trustee for cancellation (i) have become due and payable or (ii) will become
due and payable at their Stated Maturity within one year, and the Corporation
deposits or causes to be deposited with the Debenture Trustee trust funds, in
trust, for the purpose and in an amount in the currency or currencies in which
the Junior Subordinated Debentures are payable sufficient to pay and discharge
the entire indebtedness on the Junior Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation, for the principal (and
premium, if any) and interest to the date of the deposit or to the Stated
Maturity, as the case may be, then the Junior Subordinated Indenture will
cease to be of further effect (except as to the Corporation's obligations to
pay all other sums due pursuant to the Junior Subordinated Indenture and to
provide the officers' certificates and opinions of counsel described therein),
and the Corporation will be deemed to have satisfied and discharged the Junior
Subordinated Indenture.
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CONVERSION OR EXCHANGE
If and to the extent indicated in the applicable Prospectus Supplement, the
Junior Subordinated Debentures of any series may be convertible or
exchangeable into Preferred Securities or Debt Securities. The specific terms
on which Junior Subordinated Debentures of any series may be so converted or
exchanged will be set forth in the applicable Prospectus Supplement. Such
terms may include provisions for conversion or exchange, either mandatory, at
the option of the holder, or at the option of the Corporation, in which case
the number of shares of Preferred Securities or other securities to be
received by the Holders of Junior Subordinated Debentures would be calculated
as of a time and in the manner stated in the applicable Prospectus Supplement.
SUBORDINATION
The Junior Subordinated Debentures shall be subordinate and junior in right
of payment, to the extent set forth in the Junior Subordinated Indenture, to
all Senior Indebtedness (as defined below) of the Corporation. In the event
that the Corporation shall default in the payment of any principal, premium,
if any, or interest, if any, on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, unless and until such default
shall have been cured or waived or shall have ceased to exist or all Senior
Indebtedness shall have been paid, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Junior
Subordinated Debentures, or in respect of any redemption, repayment,
retirement, purchase or other acquisition of any of the Junior Subordinated
Debentures.
As used herein, "Senior Debt" means any obligation of the Corporation to its
creditors, whether now outstanding or subsequently incurred, other than any
obligation as to which, in the instrument creating or evidencing the
obligation or pursuant to which the obligation is outstanding, it is provided
that such obligation is not Senior Debt. As used herein, "Subordinated Debt"
means any obligation of the Corporation to its creditors, whether now
outstanding or subsequently incurred, where the instrument creating or
evidencing the obligation or pursuant to which the obligation is outstanding,
provides that it is subordinate and junior in right of payment to Senior Debt.
Subordinated Debt includes the Corporation's outstanding subordinated debt
securities and any subordinated debt securities issued in the future with
substantially similar subordination terms and does not include the Junior
Subordinated Debentures or any subordinated debt securities issued in the
future with substantially similar subordination terms. Senior Debt does not
include Subordinated Debt or the Junior Subordinated Debentures.
As used herein, "Senior Indebtedness" shall include (i) Senior Debt (but
excluding trade accounts payable and accrued liabilities arising in the
ordinary course of business) and (ii) the Allocable Amounts of Subordinated
Debt. As of September 30, 1996, the Corporation (the Parent) had approximately
$ billion of Senior Indebtedness outstanding.
As used herein, "Allocable Amounts," when used with respect to any
Subordinated Debt, means the amount necessary to pay all principal of (and
premium, if any) and interest, if any, on such Subordinated Debt in full less,
if applicable, any portion of such amounts which would have been paid to, and
retained by, the holders of such Subordinated Debt (whether as a result of the
receipt of payments by the holders of such Subordinated Debt from the
Corporation or any other obligor thereon or from any holders of, or trustee in
respect of, other indebtedness that is subordinate and junior in right of
payment to such Subordinated Debt pursuant to any provision of such
indebtedness for the payment over of amounts received on account of such
Indebtedness to the holders of such Subordinated Debt) but for the fact that
such Subordinated Debt is subordinate or junior in right of payment to trade
accounts payable or accrued liabilities arising in the ordinary course of
business.
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In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv)
any other marshalling of the assets of the Corporation, all Senior
Indebtedness (including any interest thereon accruing after the commencement
of any such proceedings) shall first be paid in full before any payment or
distribution, whether in cash, securities or other property, shall be made on
account of the principal of or premium, if any, or interest, if any, on the
Junior Subordinated Debentures. In such event, any payment or distribution on
account of the principal of or premium, if any, or interest, if any, on the
Junior Subordinated Debentures, whether in cash, securities or other property
(other than securities of the Corporation or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in the subordination provisions
with respect to the Subordinated Securities, to the payment of all Senior
Indebtedness at the time outstanding, and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for the subordination provisions) be payable or deliverable in
respect of the Junior Subordinated Debentures shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the
priorities then existing among such holders until all Senior Indebtedness
(including any interest thereon accruing after the commencement of any such
proceedings) shall have been paid in full.
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the holders of Junior Subordinated
Debentures, together with the holders of any obligations of the Corporation
ranking on a parity with the Junior Subordinated Debentures, shall be entitled
to be paid from the remaining assets of the Corporation the amounts at the
time due and owing on account of unpaid principal of and premium, if any, and
interest, if any, on the Junior Subordinated Debentures and such other
obligations before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital stock or
obligations of the Corporation ranking junior to the Junior Subordinated
Debentures and such other obligations. If any payment or distribution on
account of the principal of or interest on the Junior Subordinated Debentures
of any character or any security, whether in cash, securities or other
property (other than securities of the Corporation or any other corporation
provided for by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in the subordination
provisions with respect to the Junior Subordinated Debentures, to the payment
of all Senior Indebtedness at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment) shall be received by any holder of any Junior Subordinated
Debentures in contravention of any of the terms hereof and before all the
Senior Indebtedness shall have been paid in full, such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Senior Indebtedness
at the time outstanding in accordance with the priorities then existing among
such holders for application to the payment of all Senior Indebtedness
remaining unpaid to the extent necessary to pay all such Senior Indebtedness
in full. By reason of such subordination, in the event of the insolvency of
the Corporation, holders of Senior Indebtedness may receive more, ratably, and
holders of the Junior Subordinated Debentures having a claim pursuant to such
securities may receive less, ratably, than the other creditors of the
Corporation. Such subordination will not prevent the occurrence of any Event
of Default in respect of the Junior Subordinated Debentures.
The Junior Subordinated Indenture places no limitation on the amount of
additional Senior Indebtedness that may be incurred by the Corporation. The
Corporation expects from time to time to incur additional indebtedness
constituting Senior Indebtedness.
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The Junior Subordinated Indenture provides that the foregoing subordination
provisions, insofar as they relate to any particular issue of Junior
Subordinated Debentures, may be changed prior to such issuance. Any such
change would be described in the applicable Prospectus Supplement.
GOVERNING LAW
The Junior Subordinated Indenture and the Junior Subordinated Debentures
will be governed by and construed in accordance with the laws of the State of
California.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the
Trust Indenture Act. Subject to such provisions, the Debenture Trustee is
under no obligation to exercise any of the powers vested in it by the Junior
Subordinated Indenture at the request of any holder of Junior Subordinated
Debentures, unless offered reasonable indemnity by such holder against the
costs, expenses and liabilities which might be incurred thereby. The Debenture
Trustee is not required to expend or risk its own funds or otherwise incur
personal financial liability in the performance of its duties if the Debenture
Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it.
Bankers Trust Company, the Debenture Trustee, also serves as trustee under
two indentures, one for Senior Debt and one for Subordinated Debt, pursuant to
which certain debentures and notes of the Corporation are outstanding. In
addition, Bank of America and certain of its affiliates maintain deposit
accounts and/or conduct other banking transactions with Bankers Trust Company.
CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
The Corresponding Junior Subordinated Debentures may be issued in one or
more series of Junior Subordinated Debentures under the Junior Subordinated
Indenture with terms corresponding to the terms of a series of Related
Preferred Securities. In that event, concurrently with the issuance of each
Issuer Trust's Preferred Securities, such Issuer Trust will invest the
proceeds thereof and the consideration paid by the Corporation for the Common
Securities in a series of Corresponding Junior Subordinated Debentures issued
by the Corporation to such Issuer Trust. Each series of Corresponding Junior
Subordinated Debentures will be in the principal amount equal to the aggregate
stated Liquidation Amount of the Related Preferred Securities and the Common
Securities of such Issuer Trust and will rank pari passu with all other series
of Junior Subordinated Debentures. Holders of the Related Preferred Securities
for a series of Corresponding Junior Subordinated Debentures will have the
rights in connection with modifications to the Junior Subordinated Indenture
or upon occurrence of Debenture Events of Default described under "--
Modification of Junior Subordinated Indenture" and "--Debenture Events of
Default," unless otherwise provided in the Prospectus Supplement for such
Related Preferred Securities.
Unless otherwise specified in the applicable Prospectus Supplement, if a Tax
Event (as defined in "Description of Preferred Securities--Redemption or
Exchange--Tax Event Redemption") in respect of an Issuer Trust of Related
Preferred Securities shall occur and be continuing, the Corporation may, at
its option and subject to prior approval of the Federal Reserve (if then so
required under applicable capital guidelines or policies), redeem the
Corresponding Junior Subordinated Debentures at any time within 90 days of the
occurrence of such Tax Event, in whole but not in part, subject to the
provisions of the Junior Subordinated Indenture and whether or not such
Corresponding Junior Subordinated Debentures are then otherwise redeemable at
the option of the Corporation. The redemption price for any Corresponding
Junior Subordinated Debentures shall be equal to 100% of the principal amount
of such Corresponding Junior Subordinated Debentures then outstanding plus
accrued and unpaid interest to but excluding the date fixed for redemption.
For so long as the applicable Issuer Trust is
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the holder of all the outstanding series of Corresponding Junior Subordinated
Debentures, the proceeds of any such redemption will be used by the Issuer
Trust to redeem the corresponding Trust Securities in accordance with their
terms. The Corporation may not redeem a series of Corresponding Junior
Subordinated Debentures in part unless all accrued and unpaid interest has
been paid in full on all outstanding Corresponding Junior Subordinated
Debentures of such series for all interest periods terminating on or prior to
the Redemption Date.
The Corporation will covenant in the Junior Subordinated Indenture as to
each series of Corresponding Junior Subordinated Debentures, that if and so
long as (i) the Issuer Trust of the related series of Trust Securities is the
holder of all such Corresponding Junior Subordinated Debentures and (ii) a Tax
Event in respect of such Issuer Trust has occurred and is continuing to pay
Additional Sums (as defined under "Description of Preferred Securities--
Redemption or Exchange") in respect of such Trust Securities, the Corporation
will pay to such Issuer Trust such Additional Sums. The Corporation will also
covenant, as to each series of Corresponding Junior Subordinated Debentures,
(i) to maintain directly or indirectly 100% ownership of the Common Securities
of the Issuer Trust to which Corresponding Junior Subordinated Debentures have
been issued, provided that certain successors which are permitted pursuant to
the Junior Subordinated Indenture may succeed to the Corporation's ownership
of the Common Securities, (ii) not to voluntarily terminate, wind-up or
liquidate any Issuer Trust, except upon prior approval of the Federal Reserve
if then required under applicable capital guidelines or policies of the
Federal Reserve and (a) in connection with a distribution of Corresponding
Junior Subordinated Debentures to the holders of the Preferred Securities in
liquidation of such Issuer Trust or (b) in connection with certain mergers,
consolidations or amalgamations permitted by the related Trust Agreement and
(iii) to use its reasonable efforts, consistent with the terms and provisions
of the related Trust Agreement, to cause such Issuer Trust to remain
classified as a grantor trust and not as an association taxable as a
corporation for United States Federal income tax purposes.
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DESCRIPTION OF PREFERRED SECURITIES
Pursuant to the terms of the Trust Agreement for each Issuer Trust, the
Issuer Trustees on behalf of such Issuer Trust will issue the Preferred
Securities and the Common Securities. The Preferred Securities of a particular
issue will represent preferred beneficial interests in the Issuer Trust and
the holders thereof will be entitled to a preference in certain circumstances
with respect to Distributions and amounts payable on redemption or liquidation
over the Common Securities of such Issuer Trust, as well as other benefits as
described in the corresponding Trust Agreement. This summary of certain
provisions of the Preferred Securities and each Trust Agreement does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all the provisions of each Trust Agreement, including the
definitions therein of certain terms, and the Trust Indenture Act. Wherever
particular defined terms of a Trust Agreement (as amended or supplemented from
time to time) are referred to herein or in a Prospectus Supplement, such
defined terms are incorporated herein or therein by reference. The form of the
Trust Agreement has been filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Each of the Issuer Trusts is a legally
separate entity and the assets of one are not available to satisfy the
obligations of any of the others.
GENERAL
The Preferred Securities of an Issuer Trust will rank pari passu, and
payments will be made thereon pro rata, with the Common Securities of that
Issuer Trust except as described under "--Subordination of Common Securities."
Legal title to the Corresponding Junior Subordinated Debentures will be held
by the Property Trustee in trust for the benefit of the holders of the related
Preferred Securities and Common Securities. Each Guarantee Agreement executed
by the Corporation for the benefit of the holders of an Issuer Trust's
Preferred Securities (the "Guarantee" for such Preferred Securities) will be a
guarantee on a subordinated basis with respect to the related Preferred
Securities but will not guarantee payment of Distributions or amounts payable
on redemption or liquidation of such Preferred Securities when the related
Issuer Trust does not have funds on hand available to make such payments. See
"Description of Guarantees."
DISTRIBUTIONS
Distributions on the Preferred Securities will be cumulative, will
accumulate from the date of original issuance and will be payable on such
dates as specified in the applicable Prospectus Supplement. In the event that
any date on which Distributions are payable on the Preferred Securities is not
a Business Day (as defined below), payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay) except
that, if such Business Day is in the next succeeding calendar year, payment of
such Distribution shall be made on the immediately preceding Business Day, in
each case with the same force and effect as if made on such date (each date on
which Distributions are payable in accordance with the foregoing, a
"Distribution Date"). A "Business Day" shall mean any day other than a
Saturday or a Sunday, or a day on which banking institutions in The City of
New York are authorized or required by law or executive order to remain closed
or a day on which the corporate trust office of the Property Trustee or the
Debenture Trustee is closed for business.
Each Issuer Trust's Preferred Securities represent preferred beneficial
interests in the applicable Issuer Trust, and the Distributions on each
Preferred Security will be payable at a rate specified in the Prospectus
Supplement for such Preferred Securities. The amount of Distributions payable
for any period less than a full Distribution period will be computed on the
basis of a 360-day year of twelve 30-day months and the actual days elapsed in
a partial month in a period unless otherwise specified in the applicable
Prospectus Supplement. The amount of any Distributions payable for any full
Distribution period will be computed by dividing the per annum rate by four.
Distributions to which
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holders of Preferred Securities are entitled will accumulate additional
Distributions at the rate per annum if and as specified in the applicable
Prospectus Supplement. The term "Distributions" as used herein includes any
such additional Distributions unless otherwise stated.
If provided in the applicable Prospectus Supplement, the Corporation has the
right under the Junior Subordinated Indenture, pursuant to which it will issue
the Corresponding Junior Subordinated Debentures, to defer the payment of
interest at any time or from time to time on any series of the Corresponding
Junior Subordinated Debentures for a period which will be specified in such
Prospectus Supplement relating to such series (each, an "Extension Period"),
provided that no Extension Period may extend beyond the Stated Maturity of the
Corresponding Junior Subordinated Debentures. As a consequence of any such
extension, Distributions on the corresponding Preferred Securities would be
deferred (but would continue to accumulate additional Distributions thereon at
the rate per annum set forth in the Prospectus Supplement for such Preferred
Securities) by the Issuer Trust of such Preferred Securities during any such
Extension Period. During such Extension Period the Corporation may not, and
may not permit any subsidiary of the Corporation to, (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Corporation's capital stock or
(ii) make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Corporation that rank pari
passu in all respects with or junior in interest to the Corresponding Junior
Subordinated Debentures or make any guarantee payments with respect to any
guarantee by the Corporation of debt securities of any subsidiary of the
Corporation if such guarantee ranks pari passu with or junior in interest to
the Corresponding Junior Subordinated Debentures (other than (a) dividends or
distributions in common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders' rights plan,
or the issuance of stock under any such plan in the future, or the redemption
or repurchase of any such rights pursuant thereto, (c) payments under any
Guarantee and (d) purchases of common stock related to the issuance of common
stock or rights under any of the Corporation's benefit plans for its
directors, officers or employees).
The revenue of each Issuer Trust available for distribution to holders of
its Preferred Securities will be limited to payments under the Corresponding
Junior Subordinated Debentures in which the Issuer Trust will invest the
proceeds from the issuance and sale of its Trust Securities. See "Description
of Junior Subordinated Debentures--Corresponding Junior Subordinated
Debentures." If the Corporation does not make interest payments on such
Corresponding Junior Subordinated Debentures, the Property Trustee will not
have funds available to pay Distributions on the Related Preferred Securities.
The payment of Distributions (if and to the extent the Issuer Trust has funds
legally available for the payment of such Distributions and cash sufficient to
make such payments) is guaranteed by the Corporation on a limited basis as set
forth herein under "Description of Guarantees."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of such Issuer Trust on the relevant
record dates, which, as long as the Preferred Securities remain in book-entry
form, will be one Business Day prior to the relevant Distribution Date.
Subject to any applicable laws and regulations and the provisions of the
applicable Trust Agreement, each such payment will be made as described under
"Book-Entry Issuance." In the event any Preferred Securities are not in book-
entry form, the relevant record date for such Preferred Securities shall be
the date at least 15 days prior to the relevant Distribution Date, as
specified in the applicable Prospectus Supplement.
REDEMPTION OR EXCHANGE
Mandatory Redemption. Upon the repayment or redemption, in whole or in part,
of any Corresponding Junior Subordinated Debentures, whether at maturity or
upon earlier redemption as provided in the Junior Subordinated Indenture, the
proceeds from such repayment or redemption shall
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be applied by the Property Trustee to redeem a Like Amount (as defined below)
of the Trust Securities, upon not less than 30 nor more than 60 days notice,
at a redemption price (the "Redemption Price") equal to the aggregate
Liquidation Amount of such Trust Securities plus accumulated but unpaid
Distributions thereon to the date of redemption (the "Redemption Date") and
the related amount of the premium, if any, paid by the Corporation upon the
concurrent redemption of such Corresponding Junior Subordinated Debentures.
See "Description of Junior Subordinated Debentures--Redemption." If less than
all of any series of Corresponding Junior Subordinated Debentures are to be
repaid or redeemed on a Redemption Date, then the proceeds from such repayment
or redemption shall be allocated to the redemption pro rata of the related
Preferred Securities and the Common Securities. The amount of premium, if any,
paid by the Corporation upon the redemption of all or any part of any series
of any Corresponding Junior Subordinated Debentures to be repaid or redeemed
on a Redemption Date shall be allocated to the redemption pro rata of the
related Preferred Securities and the Common Securities.
The Corporation will have the right to redeem any series of Corresponding
Junior Subordinated Debentures (i) on or after such date as may be specified
in the applicable Prospectus Supplement, in whole at any time or in part from
time to time, (ii) in whole (but not in part) at any time within 90 days
following the occurrence of a Tax Event (as defined below), or (iii) as may be
otherwise specified in the applicable Prospectus Supplement, in each case
subject to receipt of prior approval by the Federal Reserve if then required
under applicable capital guidelines or policies of the Federal Reserve.
Distribution of Corresponding Junior Subordinated Debentures. Subject to the
Corporation having received prior approval of the Federal Reserve to do so if
then required under applicable capital guidelines or policies of the Federal
Reserve, the Corporation has the right at any time to terminate any Issuer
Trust and, after satisfaction of the liabilities of creditors of such Issuer
Trust as provided by applicable law, cause such Corresponding Junior
Subordinated Debentures in respect of the Preferred Securities and Common
Securities issued by such Issuer Trust to be distributed to the holders of
such Preferred Securities and Common Securities in liquidation of the Issuer
Trust.
Tax Event Redemption. If a Tax Event in respect of a series of Preferred
Securities and Common Securities shall occur and be continuing, the
Corporation has the right to redeem the Corresponding Junior Subordinated
Debentures in whole (but not in part) and thereby cause a mandatory redemption
of such Preferred Securities and Common Securities in whole (but not in part)
at the Redemption Price within 90 days following the occurrence of such Tax
Event. In the event a Tax Event in respect of a series of Preferred Securities
and Common Securities has occurred and is continuing and the Corporation does
not elect to redeem the Corresponding Junior Subordinated Debentures and
thereby cause a mandatory redemption of such Preferred Securities or to
terminate the related Issuer Trust and, after satisfaction of the liabilities
of creditors of such Issuer Trust as required by applicable law, cause the
Corresponding Junior Subordinated Debentures to be distributed to holders of
such Preferred Securities and Common Securities in liquidation of the Issuer
Trust as described above, such Preferred Securities will remain outstanding
and Additional Sums (as defined below) may be payable on the Corresponding
Junior Subordinated Debentures.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by an Issuer Trust on
the outstanding Preferred Securities and Common Securities of the Issuer Trust
shall not be reduced as a result of any additional taxes, duties and other
governmental charges to which such Issuer Trust has become subject as a result
of a Tax Event.
"Like Amount" means (i) with respect to a redemption of any series of Trust
Securities, Trust Securities of such series having a Liquidation Amount (as
defined below) equal to that portion of the principal amount of Corresponding
Junior Subordinated Debentures to be contemporaneously redeemed in accordance
with the Junior Subordinated Indenture, allocated to the Common Securities and
to the Preferred Securities based upon the relative Liquidation Amounts of
such classes and the
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proceeds of which will be used to pay the Redemption Price of such Trust
Securities and (ii) with respect to a distribution of Corresponding Junior
Subordinated Debentures to holders of any series of Trust Securities in
connection with a dissolution or liquidation of the related Issuer Trust,
Corresponding Junior Subordinated Debentures having a principal amount equal
to the Liquidation Amount of the Trust Securities of the holder to whom such
Corresponding Junior Subordinated Debentures are distributed.
"Liquidation Amount" means the stated amount of $25 per Trust Security.
"Tax Event" means the receipt by the Issuer Trust of a series of Preferred
Securities of an opinion of counsel to the Corporation experienced in such
matters to the effect that, as a result of any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or which pronouncement or
decision is announced on or after the date of issuance of such Preferred
Securities under the Trust Agreement, there is more than an insubstantial risk
that (i) such Issuer Trust is, or will be within 90 days of the date of such
opinion, subject to United States Federal income tax with respect to income
received or accrued on the corresponding series of Corresponding Junior
Subordinated Debentures, (ii) interest payable by the Corporation on such
series of Corresponding Junior Subordinated Debentures is not, or within 90
days of the date of such opinion, will not be, deductible by the Corporation,
in whole or in part, for United States Federal income tax purposes or (iii)
such Issuer Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
After the liquidation date fixed for any distribution of Corresponding
Junior Subordinated Debentures for any series of Preferred Securities (i) such
series of Preferred Securities will no longer be deemed to be outstanding,
(ii) The Depository Trust Company ("DTC") or its nominee, as the record holder
of such series of Preferred Securities, will receive a registered global
certificate or certificates representing the Corresponding Junior Subordinated
Debentures to be delivered upon such distribution and (iii) any certificates
representing such series of Preferred Securities not held by DTC or its
nominee will be deemed to represent the Corresponding Junior Subordinated
Debentures having a principal amount equal to the stated liquidation
preference of such series of Preferred Securities and bearing accrued and
unpaid interest in an amount equal to the accrued and unpaid Distributions on
such series of Preferred Securities until such certificates are presented to
the Administrative Trustees or their agent for transfer or reissuance.
There can be no assurance as to the market prices for the Preferred
Securities or the Corresponding Junior Subordinated Debentures that may be
distributed in exchange for Preferred Securities if a dissolution and
liquidation of an Issuer Trust were to occur. Accordingly, the Preferred
Securities that an investor may purchase, or the Corresponding Junior
Subordinated Debentures that the investor may receive on dissolution and
liquidation of an Issuer Trust, may trade at a discount to the price that the
investor paid to purchase the Preferred Securities offered hereby.
REDEMPTION PROCEDURES
Preferred Securities redeemed on each Redemption Date shall be redeemed at
the Redemption Price with the applicable proceeds from the contemporaneous
redemption of the Corresponding Junior Subordinated Debentures. Redemptions of
the Preferred Securities shall be made and the Redemption Price shall be
payable on each Redemption Date only to the extent that the related Issuer
Trust has funds on hand available for the payment of such Redemption Price.
See also "--Subordination of Common Securities."
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If an Issuer Trust gives a notice of redemption in respect of its Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
to the extent funds are available, the Property Trustee will deposit
irrevocably with DTC funds sufficient to pay the applicable Redemption Price
and will give DTC irrevocable instructions and authority to pay the Redemption
Price to the holders of such Preferred Securities. See "Book-Entry Issuance."
If such Preferred Securities are no longer in book-entry form, the Property
Trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for such Preferred Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the Redemption Price to the holders thereof
upon surrender of their certificates evidencing such Preferred Securities.
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Preferred Securities called for redemption shall be
payable to the holders of such Preferred Securities on the relevant record
dates for the related Distribution Dates. If notice of redemption shall have
been given and funds deposited as required, then upon the date of such
deposit, all rights of the holders of such Preferred Securities so called for
redemption will cease, except the right of the holders of such Preferred
Securities to receive the Redemption Price, but without interest on such
Redemption Price, and such Preferred Securities will cease to be outstanding.
In the event that any date fixed for redemption of Preferred Securities is not
a Business Day, then payment of the Redemption Price payable on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day falls in the next calendar year, such payment will be made on the
immediately preceding Business Day. In the event that payment of the
Redemption Price in respect of Preferred Securities called for redemption is
improperly withheld or refused and not paid either by the Issuer Trust or by
the Corporation pursuant to the Guarantee as described under "Description of
Guarantees," Distributions on such Preferred Securities will continue to
accrue at the then applicable rate, from the Redemption Date originally
established by the Issuer Trust for such Preferred Securities to the date such
Redemption Price is actually paid, in which case the actual payment date will
be the date fixed for redemption for purposes of calculating the Redemption
Price.
Subject to applicable law (including, without limitation, United States
Federal securities law), the Corporation or its subsidiaries may at any time
and from time to time purchase outstanding Preferred Securities by tender, in
the open market or by private agreement.
If less than all of the Preferred Securities and Common Securities issued by
an Issuer Trust are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of such Preferred Securities and Common Securities to be
redeemed shall be allocated pro rata to the Preferred Securities and the
Common Securities based upon the relative Liquidation Amounts of such classes.
The particular Preferred Securities to be redeemed shall be selected on a pro
rata basis not more than 60 days prior to the Redemption Date by the Property
Trustee from the outstanding Preferred Securities not previously called for
redemption, by such method as the Property Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to $25 or an integral multiple of $25 in excess thereof) of the
Liquidation Amount of Preferred Securities of a denomination larger than $25.
The Property Trustee shall promptly notify the trust registrar in writing of
the Preferred Securities selected for redemption and, in the case of any
Preferred Securities selected for partial redemption, the Liquidation Amount
thereof to be redeemed. For all purposes of each Trust Agreement, unless the
context otherwise requires, all provisions relating to the redemption of
Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the aggregate
Liquidation Amount of Preferred Securities which has been or is to be
redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Trust Securities to be
redeemed at its registered address. Unless the Corporation defaults in payment
of the Redemption Price on the Corresponding Junior
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Subordinated Debentures, on and after the Redemption Date interest will cease
to accrue on such Junior Subordinated Debentures or portions thereof (and
distributions will cease to accrue on the Related Preferred Securities or
portions thereof) called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer
Trust's Preferred Securities and Common Securities, as applicable, shall be
made pro rata based on the Liquidation Amount of such Preferred Securities and
Common Securities; provided, however, that if on any Distribution Date or
Redemption Date a Debenture Event of Default shall have occurred and be
continuing, no payment of any Distribution on, or Redemption Price of, any of
the Issuer Trust's Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common Securities, shall
be made unless payment in full in cash of all accumulated and unpaid
Distributions on all of the Issuer Trust's outstanding Preferred Securities
for all Distribution periods terminating on or prior thereto, or in the case
of payment of the Redemption Price the full amount of such Redemption Price on
all of the Issuer Trust's outstanding Preferred Securities then called for
redemption, shall have been made or provided for, and all funds available to
the Property Trustee shall first be applied to the payment in full in cash of
all Distributions on, or Redemption Price of, the Issuer Trust's Preferred
Securities then due and payable.
In the case of any Event of Default (as defined below) resulting from a
Debenture Event of Default, the Corporation as holder of such Issuer Trust's
Common Securities will be deemed to have waived any right to act with respect
to any such Event of Default under the applicable Trust Agreement until the
effect of all such Events of Default with respect to such Preferred Securities
have been cured, waived or otherwise eliminated. Until any such Events of
Default under the applicable Trust Agreement with respect to the Preferred
Securities have been so cured, waived or otherwise eliminated, the Property
Trustee shall act solely on behalf of the holders of such Preferred Securities
and not on behalf of the Corporation as holder of the Issuer Trust's Common
Securities, and only the holders of such Preferred Securities will have the
right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON TERMINATION
Pursuant to each Trust Agreement, each Issuer Trust shall automatically
terminate upon expiration of its term and shall terminate on the first to
occur of: (i) certain events of bankruptcy, dissolution or liquidation of the
Corporation; (ii) the distribution of a Like Amount of the Corresponding
Junior Subordinated Debentures to the holders of its Trust Securities, if the
Corporation, as Depositor, has given written direction to the Property Trustee
to terminate such Issuer Trust (which direction is optional and wholly within
the discretion of the Corporation, as Depositor); (iii) redemption of all of
the Issuer Trust's Preferred Securities as described under "Description of
Preferred Securities--Redemption or Exchange--Mandatory Redemption;" and (iv)
the entry of an order for the dissolution of the Issuer Trust by a court of
competent jurisdiction.
If an early termination occurs as described in clause (i), (ii) or (iv)
above, the Issuer Trust shall be liquidated by the Issuer Trustees as
expeditiously as the Issuer Trustees determine to be possible by distributing,
after satisfaction of liabilities to creditors of such Issuer Trust as
provided by applicable law, to the holders of such Trust Securities a Like
Amount of the Corresponding Junior Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be practical, in
which event such holders will be entitled to receive out of the assets of the
Issuer Trust available for distribution to holders, after satisfaction of
liabilities to creditors of such Issuer Trust as provided by applicable law,
an amount equal to, in the case of holders of Preferred Securities, the
aggregate of the Liquidation Amount plus accrued and unpaid Distributions
thereon to the date of payment (such amount being the "Liquidation
Distribution"). If such Liquidation Distribution can be paid only in part
because such Issuer Trust has insufficient assets available to pay in full the
aggregate Liquidation
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Distribution, then the amounts payable directly by such Issuer Trust on its
Preferred Securities shall be paid on a pro rata basis. The holder(s) of such
Issuer Trust's Common Securities will be entitled to receive distributions
upon any such liquidation pro rata with the holders of its Preferred
Securities, except that if a Debenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities. A supplemental Junior Subordinated Indenture may provide that if
an early termination occurs as described in clause (iv) above, the
Corresponding Junior Subordinated Debentures may be subject to optional
redemption in whole (but not in part).
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under each
Trust Agreement (an "Event of Default") with respect to the Preferred
Securities issued thereunder (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(i) the occurrence of a Debenture Event of Default under the Junior
Subordinated Indenture (see "Description of Junior Subordinated
Debentures--Debenture Events of Default"); or
(ii) default by the Property Trustee in the payment of any Distribution
when it becomes due and payable, and continuation of such default for a
period of 30 days; or
(iii) default by the Property Trustee in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Issuer Trustees in such Trust Agreement
(other than a covenant or warranty a default in the performance of which or
the breach of which is dealt with in clause (ii) or (iii) above), and
continuation of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the defaulting Issuer
Trustee or Trustees by the holders of at least 25% in aggregate liquidation
preference of the outstanding Preferred Securities of the applicable Issuer
Trust, a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" under
such Trust Agreement; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Corporation to
appoint a successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of such Issuer Trust's
Preferred Securities, the Administrative Trustees and the Corporation, as
Depositor, unless such Event of Default shall have been cured or waived. The
Corporation, as Depositor, and the Administrative Trustees are required to
file annually with the Property Trustee a certificate as to whether or not
they are in compliance with all the conditions and covenants applicable to
them under each Trust Agreement.
If a Debenture Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities upon
termination of each Issuer Trust as described above. See "--Liquidation
Distribution Upon Termination." The existence of an Event of Default does not
entitle the holders of Preferred Securities to accelerate the maturity
thereof.
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default
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has occurred and is continuing, the Property Trustee and the Delaware Trustee
may be removed at such time by the holders of a majority in Liquidation Amount
of the outstanding Preferred Securities. In no event will the holders of the
Preferred Securities have the right to vote to appoint, remove or replace the
Administrative Trustees, which voting rights are vested exclusively in the
Corporation as the holder of the Common Securities. No resignation or removal
of an Issuer Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor trustee in
accordance with the provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless an Event of Default shall have occurred and be continuing, at any
time or times, for the purpose of meeting the legal requirements of the Trust
Indenture Act or of any jurisdiction in which any part of the Trust Property
may at the time be located, the Corporation, as the holder of the Common
Securities, and the Administrative Trustees shall have power to appoint one or
more persons either to act as a co-trustee, jointly with the Property Trustee,
of all or any part of such Trust Property, or to act as separate trustee of
any such property, in either case with such powers as may be provided in the
instrument of appointment, and to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. In case a
Debenture Event of Default has occurred and is continuing, the Property
Trustee alone shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity into which the Property Trustee, the Delaware Trustee or any
Administrative Trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Trustee shall be a party, or any
entity succeeding to all or substantially all the corporate trust business of
such Trustee, shall be the successor of such Trustee under each Trust
Agreement, provided such entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUER TRUSTS
An Issuer Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any entity, except as described below or as
otherwise set forth in the Trust Agreement. An Issuer Trust may, at the
request of the Corporation, with the consent of the Administrative Trustees
and without the consent of the holders of the Preferred Securities, merge with
or into, consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any State; provided, that (i) such
successor entity either (a) expressly assumes all of the obligations of such
Issuer Trust with respect to the Preferred Securities or (b) substitutes for
the Preferred Securities other securities having substantially the same terms
as the Preferred Securities (the "Successor Securities") so long as the
Successor Securities rank the same as the Preferred Securities rank in
priority with respect to distributions and payments upon liquidation,
redemption and otherwise, (ii) the Corporation expressly appoints a trustee of
such successor entity possessing the same powers and duties as the Property
Trustee as the holder of the Corresponding Junior Subordinated Debentures,
(iii) the Successor Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national securities exchange or
other organization on which the Preferred Securities are then listed, if any,
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized
statistical rating organization, (v) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the
rights, preferences and privileges of the holders of the Preferred Securities
(including any Successor Securities) in any material respect, (vi) such
successor entity has a purpose
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substantially identical to that of the Issuer Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease, the Corporation has received an opinion from independent counsel to the
Issuer Trust experienced in such matters to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the holders of
the Preferred Securities (including any Successor Securities) in any material
respect and (b) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither the Issuer Trust nor such
successor entity will be required to register as an investment company under
the Investment Company Act of 1940, as amended (the "Investment Company Act"),
and (viii) the Corporation or any permitted successor or assignee owns all of
the common securities of such successor entity and guarantees the obligations
of such successor entity under the Successor Securities at least to the extent
provided by the Guarantee. Notwithstanding the foregoing, an Issuer Trust
shall not, except with the consent of holders of 100% in Liquidation Amount of
the Preferred Securities, consolidate, amalgamate, merge with or into, or be
replaced by or convey, transfer or lease its properties and assets
substantially as an entirety to any other entity or permit any other entity to
consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or
lease would cause the Issuer Trust or the successor entity to be classified as
other than a grantor trust for United States Federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF EACH TRUST AGREEMENT
Except as provided below and under "Description of Guarantees--Amendments
and Assignment" and as otherwise required by law and the applicable Trust
Agreement, the holders of the Preferred Securities will have no voting rights.
Each Trust Agreement may be amended from time to time by the Corporation,
the Property Trustee and the Administrative Trustees, without the consent of
the holders of the Preferred Securities (i) to cure any ambiguity, correct or
supplement any provisions in such Trust Agreement that may be inconsistent
with any other provision, or to make any other provisions with respect to
matters or questions arising under such Trust Agreement, which shall not be
inconsistent with the other provisions of such Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of such Trust Agreement to such
extent as shall be necessary to ensure that the Issuer Trust will be
classified for United States Federal income tax purposes as a grantor trust at
all times that any Trust Securities are outstanding or to ensure that the
Issuer Trust will not be required to register as an "investment company" under
the Investment Company Act; provided, however, that in the case of clause (i),
such action shall not adversely affect in any material respect the interests
of any holder of Trust Securities, and any amendments of such Trust Agreement
shall become effective when notice thereof is given to the holders of Trust
Securities. Each Trust Agreement may be amended by the Issuer Trustees and the
Corporation with (i) the consent of holders representing not less than a
majority (based upon Liquidation Amounts) of the outstanding Trust Securities
and (ii) receipt by the Issuer Trustees of an opinion of counsel to the effect
that such amendment or the exercise of any power granted to the Issuer
Trustees in accordance with such amendment will not affect the Issuer Trust's
status as a grantor trust for United States Federal income tax purposes or the
Issuer Trust's exemption from status as an "investment company" under the
Investment Company Act, provided that without the consent of each holder of
Trust Securities, such Trust Agreement may not be amended to (i) change the
amount or timing of any Distribution on the Trust Securities or otherwise
adversely affect the amount of any Distribution required to be made in respect
of the Trust Securities as of a specified date or (ii) restrict the right of a
holder of Trust Securities to institute suit for the enforcement of any such
payment on or after such date.
So long as any Corresponding Junior Subordinated Debentures are held by the
Property Trustee, the Issuer Trustees shall not (i) direct the time, method
and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Property
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Trustee with respect to such Corresponding Junior Subordinated Debentures,
(ii) waive any past default that is waivable under Section 513 of the Junior
Subordinated Indenture, (iii) exercise any right to rescind or annul a
declaration that the principal of all the Junior Subordinated Debentures shall
be due and payable or (iv) consent to any amendment, modification or
termination of the Indenture or such Corresponding Junior Subordinated
Debentures, where such consent shall be required, without, in each case,
obtaining the prior approval of the holders of a majority in aggregate
Liquidation Amount of all outstanding Preferred Securities; provided, however,
that where a consent under the Junior Subordinated Indenture would require the
consent of each holder of Corresponding Junior Subordinated Debentures
affected thereby, no such consent shall be given by the Property Trustee
without the prior consent of each holder of the corresponding Preferred
Securities. The Issuer Trustees shall not revoke any action previously
authorized or approved by a vote of the holders of the Preferred Securities
except by subsequent vote of the holders of the Preferred Securities. The
Property Trustee shall notify each holder of Preferred Securities of any
notice of default with respect to the Corresponding Junior Subordinated
Debentures. In addition to obtaining the foregoing approvals of the holders of
the Preferred Securities, prior to taking any of the foregoing actions, the
Issuer Trustees shall obtain an opinion of counsel experienced in such matters
to the effect that the Issuer Trust will not be classified as an association
taxable as a corporation for United States Federal income tax purposes on
account of such action.
Any required approval of holders of Preferred Securities may be given at a
meeting of holders of Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such holders is to be
taken, to be given to each holder of record of Preferred Securities in the
manner set forth in each Trust Agreement.
No vote or consent of the holders of Preferred Securities will be required
for an Issuer Trust to redeem and cancel its Preferred Securities in
accordance with the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned by the Corporation, the Issuer Trustees or any
affiliate of the Corporation or any Issuer Trustees, shall, for purposes of
such vote or consent, be treated as if they were not outstanding.
GLOBAL PREFERRED SECURITIES
The Preferred Securities of a series may be issued in whole or in part in
the form of one or more Global Preferred Securities that will be deposited
with, or on behalf of, the Depository identified in the Prospectus Supplement
relating to such series. Unless otherwise indicated in the applicable
Prospectus Supplement for such series, the Depository will be DTC. Global
Preferred Securities may be issued only in fully registered form and in either
temporary or permanent form. Unless and until it is exchanged in whole or in
part for the individual Preferred Securities represented thereby, a Global
Preferred Security may not be transferred except as a whole by the Depository
for such Global Preferred Security to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository or by the Depository or any nominee to a successor Depository or
any nominee of such successor.
The specific terms of the depositary arrangement with respect to a series of
Preferred Securities will be described in the Prospectus Supplement relating
to such series. The Corporation anticipates that the following provisions will
generally apply to depositary arrangements.
Upon the issuance of a Global Preferred Security, and the deposit of such
Global Preferred Security with or on behalf of the Depositary, the Depositary
for such Global Preferred Security or its nominee will credit, on its book-
entry registration and transfer system, the respective aggregate
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Liquidation Amounts of the individual Preferred Securities represented by such
Global Preferred Securities to the accounts of Participants. Such accounts
shall be designated by the dealers, underwriters or agents with respect to
such Preferred Securities or by the Corporation if such Preferred Securities
are offered and sold directly by the Corporation. Ownership of beneficial
interests in a Global Preferred Security will be limited to Participants or
persons that may hold interests through Participants. Ownership of beneficial
interests in such Global Preferred Security will be shown on, and the transfer
of that ownership will be effected only through, records maintained by the
applicable Depositary or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to interests of
persons who hold through Participants). The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to transfer
beneficial interests in a Global Preferred Security.
So long as the Depositary for a Global Preferred Security, or its nominee,
is the registered owner of such Global Preferred Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder
of the Preferred Securities represented by such Global Preferred Security for
all purposes under the Junior Subordinated Indenture governing such Preferred
Securities. Except as provided below, owners of beneficial interests in a
Global Preferred Security will not be entitled to have any of the individual
Preferred Securities of the series represented by such Global Preferred
Security registered in their names, will not receive or be entitled to receive
physical delivery of any such Preferred Securities of such series in
definitive form and will not be considered the owners or holders thereof under
the Junior Subordinated Indenture.
Payments of principal of (and premium, if any) and interest on individual
Preferred Securities represented by a Global Preferred Security registered in
the name of a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Preferred
Security representing such Preferred Securities. None of the Corporation, the
Property Trustee, any Paying Agent, or the Securities Registrar for such
Preferred Securities will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial ownership
interests of the Global Preferred Security representing such Preferred
Securities or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
The Corporation expects that the Depositary for a series of Preferred
Securities or its nominee, upon receipt of any payment of Liquidation Amount,
premium or Distributions in respect of a permanent Global Preferred Security
representing any of such Preferred Securities, immediately will credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interest in the aggregate Liquidation Amount of such
Global Preferred Security for such Preferred Securities as shown on the
records of such Depositary or its nominee. The Corporation also expects that
payments by Participants to owners of beneficial interests in such Global
Preferred Security held through such Participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name."
Such payments will be the responsibility of such Participants.
Unless otherwise specified in the applicable Prospectus Supplement, if a
Depositary for a series of Preferred Securities is at any time unwilling,
unable or ineligible to continue as depositary and a successor depositary is
not appointed by the Corporation within 90 days, the Corporation will issue
individual Preferred Securities of such series in exchange for the Global
Preferred Security representing such series of Preferred Securities. In
addition, the Corporation may at any time and in its sole discretion, subject
to any limitations described in the Prospectus Supplement relating to such
Preferred Securities, determine not to have any Preferred Securities of such
series represented by one or more Global Preferred Securities and, in such
event, will issue individual Preferred Securities of such series in exchange
for the Global Preferred Security or Securities representing such series of
Preferred Securities. Further, if the Corporation so specifies with respect to
the Preferred Securities of a series, an owner of a beneficial interest in a
Global Preferred Security representing Preferred
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Securities of such series may, on terms acceptable to the Corporation, the
Property Trustee and the Depository for such Global Preferred Security,
receive individual Preferred Securities of such series in exchange for such
beneficial interests, subject to any limitations described in the Prospectus
Supplement relating to such Preferred Securities. In any such instance, an
owner of a beneficial interest in a Global Preferred Security will be entitled
to physical delivery of individual Preferred Securities of the series
represented by such Global Preferred Security equal in principal amount to
such beneficial interest and to have such Preferred Securities registered in
its name. Individual Preferred Securities of such series so issued will be
issued in denominations, unless otherwise specified by the Corporation, of $25
and integral multiples thereof.
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to the
Depository, which shall credit the relevant accounts at the Depository on the
applicable Distribution Dates or, if any Issuer Trust's Preferred Securities
are not held by the Depository, such payments shall be made by check mailed to
the address of the holder entitled thereto as such address shall appear on the
Register. Unless otherwise specified in the applicable Prospectus Supplement,
the paying agent (the "Paying Agent") shall initially be the Property Trustee
and any co-paying agent chosen by the Property Trustee and acceptable to the
Administrative Trustees and the Corporation. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Corporation. In the event that the Property Trustee
shall no longer be the Paying Agent, the Administrative Trustees shall appoint
a successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Corporation) to act as Paying Agent.
REGISTRAR AND TRANSFER AGENT
Unless otherwise specified in the applicable Prospectus Supplement, the
Property Trustee will act as registrar and transfer agent for the Preferred
Securities.
Registration of transfers of Preferred Securities will be effected without
charge by or on behalf of each Issuer Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Issuer Trusts will not be required to register or cause to be
registered the transfer of their Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of an
Event of Default, undertakes to perform only such duties as are specifically
set forth in each Trust Agreement and, after such Event of Default, must
exercise the same degree of care and skill as a prudent person would exercise
or use in the conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of the powers
vested in it by the applicable Trust Agreement at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
the applicable Trust Agreement or is unsure of the application of any
provision of the applicable Trust Agreement, and the matter is not one on
which holders of Preferred Securities are entitled under such Trust Agreement
to vote, then the Property Trustee shall take such action as is directed by
the Corporation and if not so directed, shall take such action as it deems
advisable and in the best interests of the holders of the Trust Securities and
will have no liability except for its own bad faith, negligence or willful
misconduct.
For information concerning the relationships between Bankers Trust Company,
the Property Trustee, and the Corporation, see "Description of Junior
Subordinated Debentures--Information Concerning the Debenture Trustee."
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MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuer Trusts in such a way that no Issuer Trust
will be deemed to be an "investment company" required to be registered under
the Investment Company Act or classified as an association taxable as a
corporation for United States Federal income tax purposes and so that the
Corresponding Junior Subordinated Debentures will be treated as indebtedness
of the Corporation for United States Federal income tax purposes. In this
connection, the Corporation and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of
trust of each Issuer Trust or each Trust Agreement, that the Corporation and
the Administrative Trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related Preferred
Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Issuer Trust may borrow money or issue debt or mortgage or pledge any of
its assets.
DESCRIPTION OF GUARANTEES
A Guarantee will be executed and delivered by the Corporation concurrently
with the issuance by each Issuer Trust of its Preferred Securities for the
benefit of the holders from time to time of such Preferred Securities. Bankers
Trust Company will act as indenture trustee ("Guarantee Trustee") under each
Guarantee for the purposes of compliance with the Trust Indenture Act and each
Guarantee will be qualified as an indenture under the Trust Indenture Act.
This summary of certain provisions of the Guarantees does not purport to be
complete and is subject to, and qualified in its entirety by reference to, all
of the provisions of each Guarantee Agreement, including the definitions
therein of certain terms, and the Trust Indenture Act. The form of the
Guarantee has been filed as an exhibit to the Registration Statement of which
this Prospectus forms a part. Reference in this summary to Preferred
Securities means that Issuer Trust's Preferred Securities to which a Guarantee
relates. The Guarantee Trustee will hold each Guarantee for the benefit of the
holders of the related Issuer Trust's Preferred Securities.
GENERAL
The Corporation will irrevocably agree to pay in full on a subordinated
basis, to the extent set forth herein, the Guarantee Payments (as defined
below) to the holders of the Preferred Securities, as and when due, regardless
of any defense, right of set-off or counterclaim that such Issuer Trust may
have or assert other than the defense of payment. The following payments with
respect to the Preferred Securities, to the extent not paid by or on behalf of
the related Issuer Trust (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accrued and unpaid Distributions required to be paid on
such Preferred Securities, to the extent that such Issuer Trust has funds on
hand available therefor at such time, (ii) the Redemption Price with respect
to any Preferred Securities called for redemption to the extent that such
Issuer Trust has funds on hand available therefor at such time or (iii) upon a
voluntary or involuntary termination, winding up or liquidation of such Issuer
Trust (unless the Corresponding Junior Subordinated Debentures are distributed
to holders of such Preferred Securities), the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of such Issuer Trust remaining
available for distribution to holders of Preferred Securities on liquidation
of such Issuer Trust. The Corporation's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the Corporation
to the holders of the applicable Preferred Securities or by causing the Issuer
Trust to pay such amounts to such holders.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the related Issuer Trust's obligations under the Preferred Securities, but
will apply only to the extent that such related Issuer Trust has funds
sufficient to make such payments, and is not a guarantee of collection.
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If the Corporation does not make interest payments on the Corresponding
Junior Subordinated Debentures held by the Issuer Trust, the Issuer Trust will
not be able to pay Distributions on the Preferred Securities and will not have
funds legally available therefor. Each Guarantee will rank subordinate and
junior in right of payment to all Senior Indebtedness of the Corporation. See
"Status of the Guarantees". Because the Corporation is a holding company, the
right of the Corporation to participate in any distribution of assets of any
subsidiary upon such subsidiary's liquidation or reorganization or otherwise,
is subject to the prior claims of creditors of that subsidiary, except to the
extent the Corporation may itself be recognized as a creditor of that
subsidiary. Accordingly, the Corporation's obligations under the Guarantees
will be effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and claimants should look only to the assets of
the Corporation for payments thereunder. See "BankAmerica Corporation." Except
as otherwise provided in the applicable Prospectus Supplement, the Guarantees
do not limit the incurrence or issuance of other secured or unsecured debt of
the Corporation, including Senior Indebtedness, whether under the Junior
Subordinated Indenture, any other indenture that the Corporation may enter
into in the future or otherwise. See the Prospectus Supplement relating to any
offering of Preferred Securities.
The Corporation has, through the applicable Guarantee, the applicable Trust
Agreement, the Junior Subordinated Debentures, the Junior Subordinated
Indenture and the Expense Agreement, taken together, fully, irrevocably and
unconditionally guaranteed all of the Issuer Trust's obligations under the
Preferred Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Issuer Trust's obligations under the Preferred Securities. See "Relationship
Among the Preferred Securities, the Corresponding Junior Subordinated
Debentures and the Guarantee."
STATUS OF THE GUARANTEES
Each Guarantee will constitute an unsecured obligation of the Corporation
and will rank subordinate and junior in right of payment to all Senior
Indebtedness of the Corporation in the same manner as Junior Subordinated
Debentures.
Each Guarantee will rank pari passu with all other Guarantees issued by the
Corporation. Each Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding
directly against the Guarantor to enforce its rights under the Guarantee
without first instituting a legal proceeding against any other person or
entity). Each Guarantee will be held for the benefit of the holders of the
related Preferred Securities. Each Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid by the Issuer
Trust or upon distribution to the holders of the Preferred Securities of the
Corresponding Junior Subordinated Debentures. None of the Guarantees places a
limitation on the amount of additional Senior Indebtedness that may be
incurred by the Corporation. The Corporation expects from time to time to
incur additional indebtedness constituting Senior Indebtedness.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the related Preferred Securities (in which case no
vote will be required), no Guarantee may be amended without the prior approval
of the holders of not less than a majority of the aggregate Liquidation Amount
of such outstanding Preferred Securities. The manner of obtaining any such
approval will be as set forth under "Description of the Preferred Securities--
Voting Rights; Amendment of Each Trust Agreement." All guarantees and
agreements contained in each Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Corporation and shall inure to
the benefit of the holders of the related Preferred Securities then
outstanding.
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EVENTS OF DEFAULT
An event of default under each Guarantee will occur upon the failure of the
Corporation to perform any of its payment or other obligations thereunder. The
holders of not less than a majority in aggregate Liquidation Amount of the
related Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Guarantee
Trustee in respect of such Guarantee or to direct the exercise of any trust or
power conferred upon the Guarantee Trustee under such Guarantee.
Any holder of the Preferred Securities may institute a legal proceeding
directly against the Corporation to enforce its rights under such Guarantee
without first instituting a legal proceeding against the Issuer Trust, the
Guarantee Trustee or any other person or entity.
The Corporation, as guarantor, is required to file annually with the
Guarantee Trustee a certificate as to whether or not the Corporation is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of a
default by the Corporation in performance of any Guarantee, undertakes to
perform only such duties as are specifically set forth in each Guarantee and,
after default with respect to any Guarantee, must exercise the same degree of
care and skill as a prudent person would exercise or use in the conduct of his
or her own affairs. Subject to this provision, the Guarantee Trustee is under
no obligation to exercise any of the powers vested in it by any Guarantee at
the request of any holder of any Preferred Securities unless it is offered
reasonable indemnity against the costs, expenses and liabilities that might be
incurred thereby.
For information concerning the relationship between Bankers Trust Company,
the Property Trustee, and the Corporation, see "Description of Junior
Subordinated Debentures--Information Concerning the Debenture Trustee."
TERMINATION OF THE GUARANTEES
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price of the related Preferred Securities, upon
full payment of the amounts payable upon liquidation of the related Issuer
Trust or upon distribution of Corresponding Junior Subordinated Debentures to
the holders of the related Preferred Securities. Each Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of the related Preferred Securities must restore payment of any sums
paid under such Preferred Securities or such Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the laws
of the State of California.
THE EXPENSE AGREEMENT
Pursuant to the Expense Agreement entered into by the Corporation under each
Trust Agreement (the "Expense Agreement"), the Corporation will irrevocably
and unconditionally guarantee to each person or entity to whom the Issuer
Trust becomes indebted or liable, the full payment of any costs, expenses or
liabilities of the Issuer Trust, other than obligations of the Issuer Trust to
pay to the holders of any Preferred Securities or other similar interests in
the Issuer Trust of the amounts due such holders pursuant to the terms of the
Preferred Securities or such other similar interests, as the
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case may be. The Expense Agreement will constitute an unsecured obligation of
the Corporation and will rank subordinate and junior in right of payment to
all Senior Indebtedness of the Corporation in the same manner as Junior
Subordinated Debentures.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE CORRESPONDING JUNIOR SUBORDINATED DEBENTURES
AND THE GUARANTEES
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Preferred Securities
(to the extent the Issuer Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Corporation as and to the
extent set forth under "Description of Guarantees." Taken together, the
Corporation's obligations under each series of Junior Subordinated Debentures,
the Junior Subordinated Indenture, the related Trust Agreement, the related
Expense Agreement, and the related Guarantee provide, in the aggregate, a
full, irrevocable and unconditional guarantee of payments of distributions and
other amounts due on the related series of Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation
of these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer Trust's obligations under the Preferred
Securities. If and to the extent that the Corporation does not make payments
on any series of Corresponding Junior Subordinated Debentures, such Issuer
Trust will not pay Distributions or other amounts due on its Preferred
Securities. The Guarantees do not cover payment of Distributions when the
related Issuer Trust does not have sufficient funds to pay such Distributions.
In such event, the remedy of a holder of a series of Preferred Securities is
to institute a legal proceeding directly against the Corporation for
enforcement of payment of such Distributions to such holder. The obligations
of the Corporation under each Guarantee are subordinate and junior in right of
payment to all Senior Indebtedness.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on each
series of Corresponding Junior Subordinated Debentures, such payments will be
sufficient to cover Distributions and other payments due on the related
Preferred Securities, primarily because (i) the aggregate principal amount of
each series of Corresponding Junior Subordinated Debentures will be equal to
the sum of the aggregate stated Liquidation Amount of the Related Preferred
Securities and related Common Securities; (ii) the interest rate and interest
and other payment dates on each series of Corresponding Junior Subordinated
Debentures will match the Distribution rate and Distribution and other payment
dates for the related Preferred Securities; (iii) the Corporation shall pay
for all and any costs, expenses and liabilities of such Issuer Trust except
the Issuer Trust's obligations to holders of its Preferred Securities under
such Preferred Securities; and (iv) each Trust Agreement further provides that
the Issuer Trust will not engage in any activity that is not consistent with
the limited purposes of such Issuer Trust.
Notwithstanding anything to the contrary in the Junior Subordinated
Indenture, the Corporation has the right to set-off any payment it is
otherwise required to make thereunder with and to the extent the Corporation
has theretofore made, or is concurrently on the date of such payment making, a
payment under the related Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any related Preferred Security may institute a legal proceeding
directly against the Corporation to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer Trust or any other person or entity.
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A default or event of default under any Senior Indebtedness of the
Corporation would not constitute a default or Event of Default. However, in
the event of payment defaults under, or acceleration of, Senior Indebtedness
of the Corporation, the subordination provisions of the Junior Subordinated
Indenture provide that no payments may be made in respect of the Corresponding
Junior Subordinated Debentures until such Senior Indebtedness has been paid in
full or any payment default thereunder has been cured or waived. Failure to
make required payments on any series of Corresponding Junior Subordinated
Debentures would constitute an Event of Default.
LIMITED PURPOSE OF ISSUER TRUSTS
Each Issuer Trust's Preferred Securities evidence a beneficial interest in
such Issuer Trust, and each Issuer Trust exists for the sole purpose of
issuing its Preferred Securities and Common Securities and investing the
proceeds thereof in Corresponding Junior Subordinated Debentures. A principal
difference between the rights of a holder of a Preferred Security and a holder
of a Corresponding Junior Subordinated Debenture is that a holder of a
Corresponding Junior Subordinated Debenture is entitled to receive from the
Corporation the principal amount of and interest accrued on Corresponding
Junior Subordinated Debentures held, while a holder of Preferred Securities is
entitled to receive Distributions from such Issuer Trust (or from the
Corporation under the applicable Guarantee) if and to the extent such Issuer
Trust has funds available for the payment of such Distributions.
RIGHTS UPON TERMINATION
Upon any voluntary or involuntary termination, winding-up or liquidation of
any Issuer Trust involving the liquidation of the Corresponding Junior
Subordinated Debentures, after satisfaction of the liabilities of creditors of
such Issuer Trust as required by applicable law, the holders of the related
Preferred Securities will be entitled to receive, out of assets held by such
Issuer Trust, the Liquidation Distribution in cash. See "Description of
Preferred Securities--Liquidation Distribution Upon Termination." Upon any
voluntary or involuntary liquidation or bankruptcy of the Corporation, the
Property Trustee, as holder of the Corresponding Junior Subordinated
Debentures, would be a subordinated creditor of the Corporation, subordinated
in right of payment to all Senior Indebtedness as set forth in the Junior
Subordinated Indenture, but entitled to receive payment in full of principal
and interest, before any stockholders of the Corporation receive payments or
distributions. Since the Corporation is the guarantor under each Guarantee and
has agreed to pay for all costs, expenses and liabilities of each Issuer Trust
(other than the Issuer Trust's obligations to the holders of its Preferred
Securities), the positions of a holder of such Preferred Securities and a
holder of such Corresponding Junior Subordinated Debentures relative to other
creditors and to stockholders of the Corporation in the event of liquidation
or bankruptcy of the Corporation are expected to be substantially the same.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement and the extent, if any, to which such
general provisions may apply to the Debt Securities so offered will be
described in the Prospectus Supplement relating to such Debt Securities.
The Senior Securities are to be issued under an Indenture dated as of
November 1, 1991, as amended by a First Supplemental Indenture dated as of
August 1, 1994 (as so amended, the "Senior Indenture"), between the
Corporation and First Trust of California, National Association, as successor
trustee (the "Senior Trustee"). The Subordinated Securities are to be issued
under an Indenture dated as of November 1, 1991, as amended by a First
Supplemental Indenture dated as of September 8, 1992 (as so amended, the
"Subordinated Indenture"), between the Corporation and Chemical Trust
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Company of California, as trustee (the "Subordinated Trustee", and together
with the Senior Trustee, the "Trustees"). The Senior Indenture and the
Subordinated Indenture (collectively, the "Indentures") are exhibits to the
Registration Statement. The following summaries of certain provisions of the
Indentures do not purport to be complete and are qualified in their entirety
by reference to the provisions of the Indentures. Numerical references in
parentheses below are to sections of the Indentures. Wherever particular
sections or defined terms of the Indentures are referred to, it is intended
that such sections or defined terms shall be incorporated herein by reference.
Unless otherwise indicated, capitalized terms shall have the meanings ascribed
to them in the Indentures.
GENERAL
The amount of Debt Securities offered by this Prospectus will be limited to
the amount described on the cover of this Prospectus. Each Indenture provides
that Debt Securities in an unlimited amount may be issued thereunder from time
to time in one or more series. (Section 301)
The Senior Securities will be unsecured and will rank pari passu with other
unsecured Senior Debt of the Corporation. The Subordinated Securities will be
unsecured and will rank pari passu with other debt of the Corporation that has
substantially similar subordination provisions ("Subordinated Debt") and,
together with such other Subordinated Debt, will be subordinate and junior in
right of payment to the prior payment in full of the Senior Debt of the
Corporation as described below under "Subordination." Because the Corporation
is a holding company, the right of the Corporation to participate in any
distribution of assets of any subsidiary upon such subsidiary's liquidation or
reorganization or otherwise, is subject to the prior claims of creditors of
the subsidiary, except to the extent the Corporation may itself be recognized
as a creditor of that subsidiary. Accordingly, the Debt Securities will be
effectively subordinated to all existing and future liabilities of the
Corporation's subsidiaries, and holders of Debt Securities should look only to
the assets of the Corporation for payments on the Debt Securities. Except as
otherwise provided in the applicable Prospectus Supplement, the Indentures do
not limit the incurrence or issuance of other secured or unsecured debt of the
Corporation, including Senior Debt, whether under the Subordinated Indenture,
any other indenture that the Corporation may enter into in the future or
otherwise. See "--Subordination" and the Prospectus Supplement relating to any
offering of Securities.
Reference is hereby made to the Prospectus Supplement relating to the
particular series of Debt Securities for the terms of such Debt Securities,
including, where applicable: (i) the designation and any limit on the
aggregate principal amount of such Debt Securities; (ii) the price (expressed
as a percentage of the aggregate principal amount thereof) at which such Debt
Securities will be issued; (iii) the date or dates on which such Debt
Securities will mature or method by which such dates can be determined; (iv)
the currency or currencies in which such Debt Securities are being sold and
are denominated and the circumstances, if any, under which any Debt Securities
may be payable in a currency other than the currency in which such Debt
Securities are denominated, and if so, the exchange rate, the exchange rate
agent and, if the Holder of any such Debt Securities may elect the currency in
which payments thereon are to be made, the manner of such election; (v) the
denominations in which any Debt Securities which are Registered Securities
will be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Debt
Securities which are Bearer Securities will be issuable, if other than the
denomination of $5,000; (vi) the rate or rates (which may be fixed or
variable) at which such Debt Securities will bear interest, which rate may be
zero in the case of certain Debt Securities issued at an issue price
representing a discount from the principal amount payable at maturity; (vii)
the date from which interest on such Debt Securities will accrue, the dates on
which such interest will be payable or method by which such dates can be
determined, the date on which payment of such interest will commence and the
circumstances, if any, in which the Corporation may defer interest payments;
(viii) the dates on which, and the price or prices at which, such Debt
Securities will, pursuant to any
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mandatory sinking fund provision, or may, pursuant to any optional redemption
or required repayment provisions, be redeemed or repaid and the other terms
and provisions of any such optional redemption or required repayment; (ix)
whether such Debt Securities are to be issuable as Bearer Securities and/or
Registered Securities and, if issuable as Bearer Securities, the terms upon
which any Bearer Securities may be exchanged for Registered Securities; (x)
whether such Debt Securities are to be issued in the form of one or more
temporary or permanent Global Securities and, if so, the identity of the
depository for such Global Security or Securities; (xi) if a temporary global
Debt Security is to be issued with respect to such series, the extent to
which, and the manner in which, any interest thereon payable on an interest
payment date prior to the issuance of a permanent Global Security or
definitive Bearer Securities will be credited to the accounts of the persons
entitled thereto on such interest payment date; (xii) if a temporary Global
Security is to be issued with respect to such series, the terms upon which
interests in such temporary Global Security may be exchanged for interests in
a permanent Global Security or for definitive Debt Securities of the series
and the terms upon which interests in a permanent Global Security, if any, may
be exchanged for definitive Debt Securities of the series; (xiii) any
additional restrictive covenants included for the benefit of Holders of such
Debt Securities; (xiv) any additional Events of Default provided with respect
to such Debt Securities; (xv) information with respect to book-entry
procedures, if any; (xvi) whether the Debt Securities will be repayable at the
option of the Holder in the event of a change in control of the Corporation;
(xvii) any other material terms of the Debt Securities not inconsistent with
the provisions of the applicable Indenture; and (xviii) the material terms of
any securities being offered together with or separately from the Debt
Securities. Such Prospectus Supplement will also describe any special
provisions for the payment of additional amounts with respect to the Debt
Securities and certain United States federal income tax consequences and other
special considerations applicable to such series of Debt Securities. If a Debt
Security is denominated in a foreign currency, such Debt Security may not
trade on a U.S. national securities exchange unless and until the Commission
has approved appropriate rule changes pursuant to the Securities Act to
accommodate the trading of such Debt Security.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities other than Bearer Securities in temporary or
permanent global form will have interest coupons attached. (Section 201) Each
Indenture also provides that Bearer Securities or Registered Securities of a
series may be issuable in permanent global form. (Section 203) See "Permanent
Global Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of authorized denominations and of a
like aggregate principal amount, tenor and terms. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in
default) of such series will be exchangeable into Registered Securities of the
same series of any authorized denominations and of a like aggregate principal
amount, tenor and terms. Bearer Securities surrendered in exchange for
Registered Securities between the close of business on a Regular Record Date
or a Special Record Date and the relevant date for payment of interest shall
be surrendered without the coupon relating to such date for payment of
interest, and interest will not be payable in respect of the Registered
Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the terms of the
applicable Indenture. Bearer Securities will not be issued in exchange for
Registered Securities. (Section 305) Each Bearer Security, other than a
temporary global Bearer Security, and each interest coupon will bear the
following legend: "Any United States Person who holds this obligation will be
subject to limitations under the United States federal income tax laws
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
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Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (duly
endorsed or accompanied by a satisfactory written instrument of transfer), at
the office of the Security Registrar or at the office of any transfer agent
designated by the Corporation for such purpose with respect to such series of
Debt Securities, without service charge and upon payment of any taxes and
other governmental charges. (Section 305) If the applicable Prospectus
Supplement refers to any transfer agent (in addition to the Security
Registrar) initially designated by the Corporation with respect to any series
of Debt Securities, the Corporation may at any time rescind the designation of
any such transfer agent or approve a change in the location through which any
such transfer agent (or Security Registrar) acts, except that, if Debt
Securities of a series are issuable solely as Registered Securities, the
Corporation will be required to maintain a transfer agent in each Place of
Payment for such series and, if Debt Securities of a series are issuable as
Bearer Securities, the Corporation will be required to maintain (in addition
to the Security Registrar) a transfer agent in a Place of Payment for such
series located outside the United States. The Corporation may at any time
designate additional transfer agents with respect to any series of Debt
Securities. (Section 1002)
The Corporation shall not be required (i) to issue, register the transfer of
or exchange Debt Securities of any particular series to be redeemed for a
period of 15 days preceding the first publication of the relevant notice of
redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption, (ii) to
register the transfer of any Registered Security so selected for redemption in
whole or in part, except the unredeemed portion of any Registered Security
being redeemed in part or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for a
Registered Security of like tenor and terms of that series, provided that such
Registered Security shall be surrendered for redemption. (Section 305)
Additional information regarding restrictions on the issuance, exchange and
transfer of, and special United States federal income tax considerations
relating to, Bearer Securities will be set forth in the applicable Prospectus
Supplement.
TEMPORARY GLOBAL SECURITIES
If so specified in the applicable Prospectus Supplement, all or any portion
of the Debt Securities of a series which are issuable as Bearer Securities
will initially be represented by one or more temporary Global Securities,
without interest coupons, to be deposited with a common depository in London
for Morgan Guaranty Trust Company of New York, Brussels Office, as operator of
the Euroclear System ("Euroclear") and Cedel Bank, societe anonyme ("Cedel")
for credit to designated accounts. On and after the date determined as
provided in any such temporary Global Security and described in the applicable
Prospectus Supplement, but within a reasonable time, each such temporary
Global Security will be exchangeable for definitive Bearer Securities,
definitive Registered Securities or all or a portion of a permanent global
Bearer Security, or any combination thereof, as specified in such Prospectus
Supplement. No definitive Bearer Security or permanent global Bearer Security
delivered in exchange for a portion of a temporary Global Security shall be
mailed or otherwise delivered to any location in the United States in
connection with such exchange.
Additional information regarding restrictions on and special United States
federal income tax consequences relating to temporary Global Securities will
be set forth in the Prospectus Supplement relating thereto.
PERMANENT GLOBAL SECURITIES
If any Debt Securities of a series are issuable in permanent global form,
the applicable Prospectus Supplement will describe the circumstances, if any,
under which beneficial owners of interests in any such permanent Global
Security may exchange such interests for Debt Securities of such series and
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of like tenor and principal amount of any authorized form and denomination.
Principal of and any premium and interest on a permanent Global Security will
be payable in the manner described in the Prospectus Supplement relating
thereto.
PAYMENTS AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payments
of principal of and premium, if any, and interest, if any, on Bearer
Securities will be payable in the currency designated in the Prospectus
Supplement, subject to any applicable laws and regulations, at such paying
agencies outside the United States as the Corporation may appoint from time to
time. Unless otherwise provided in the Prospectus Supplement, such payments
may be made, at the option of the Holder, by a check in the designated
currency or by transfer to an account in the designated currency maintained by
the payee with a bank located outside the United States. Unless otherwise
indicated in the applicable Prospectus Supplement, payment of interest on
Bearer Securities on any Interest Payment Date will be made only against
surrender of the coupon relating to such Interest Payment Date to a paying
agent outside the United States. (Section 1001) No payment with respect to any
Bearer Security will be made at any office or paying agency maintained by the
Corporation in the United States nor will any such payment be made by transfer
to an account, or by mail to an address, in the United States. Notwithstanding
the foregoing, payments of principal of and premium, if any, and interest, if
any, on Bearer Securities denominated and payable in U.S. dollars will be made
in U.S. dollars at an office or agency of, and designated by, the Corporation
located in the United States, if payment of the full amount thereof in U.S.
dollars at all paying agencies outside the United States is illegal or
effectively precluded by exchange controls or other similar restrictions, and
the Trustee receives an opinion of counsel that such payment within the United
States is legal. (Section 1002) As used in this Prospectus, "United States"
means the United States of America (including the States and the District of
Columbia) and its possessions including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Marianas Islands.
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal of and premium, if any, and interest, if any, on a Registered
Security will be payable in the currency designated in the Prospectus
Supplement, and interest will be payable at the office of such paying agent or
paying agents as the Corporation may appoint from time to time, except that at
the option of the Corporation payment of any interest may be made by a check
in such currency mailed to the Holder at such Holder's registered address or
by wire transfer to an account in such currency designated by such Holder in
writing not less than ten days prior to the date of such payment. Unless
otherwise indicated in the applicable Prospectus Supplement, payment of any
installment of interest on a Registered Security will be made to the Person in
whose name such Registered Security is registered at the close of business on
the Regular Record Date for such payments. (Section 307) Unless otherwise
indicated in the applicable Prospectus Supplement, principal payable at
maturity will be paid to the registered holder upon surrender of the
Registered Security at the office of a duly appointed paying agent.
The paying agents outside the United States initially appointed by the
Corporation for a series of Debt Securities will be named in the applicable
Prospectus Supplement. The Corporation may terminate the appointment of any of
the paying agents from time to time, except that the Corporation will maintain
at least one paying agent outside the United States so long as any Bearer
Securities are outstanding where Bearer Securities may be presented for
payment and may be surrendered for exchange, provided that so long as any
series of Debt Securities is listed on The Stock Exchange of the United
Kingdom and the Republic of Ireland or the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Corporation will maintain a paying agent in London or
Luxembourg or any other required city located outside the United States, as
the case may be, for such series of Debt Securities. (Section 1002)
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All moneys paid by the Corporation to a paying agent for the payment of
principal of or premium, if any, or interest, if any, on any Debt Security
that remains unclaimed at the end of two years after such principal, premium
or interest shall have become due and payable will, at request of the
Corporation, be repaid to the Corporation, and the Holder of such Debt
Security or any coupon appertaining thereto will thereafter look only to the
Corporation for payment thereof. (Section 1003)
COVENANTS CONTAINED IN INDENTURES
The Senior Indenture provides that the Corporation (a) will not sell,
transfer, or otherwise dispose of any shares of Voting Stock of Bank of
America or permit Bank of America to issue, sell, or otherwise dispose of any
shares of its Voting Stock unless, after giving effect to any such
transaction, Bank of America remains a Controlled Subsidiary, and (b) will not
permit Bank of America to (i) merge or consolidate unless the surviving
corporation is a Controlled Subsidiary or (ii) convey or transfer its
properties and assets substantially as an entirety to any person, except to a
Controlled Subsidiary. (Section 1005 of the Senior Indenture) "Controlled
Subsidiary" means any corporation more than 80% of the outstanding shares of
"Voting Stock" (except for directors' qualifying shares) of which is at the
time owned directly by the Corporation. With the consent of the Holders of at
least a majority in principal amount of the outstanding Senior Securities of
each series issued under the Senior Indenture, such definition in the Senior
Indenture may be modified so as to reduce the required percentage of ownership
from 80% to a majority. (Section 902 of the Senior Indenture) The term "Voting
Stock" of Bank of America refers to stock of any class or classes, however
designated, having ordinary voting power for the election of a majority of the
Board of Directors of Bank of America, other than stock having such power only
by reason of the happening of a contingency. (Section 101 of the Senior
Indenture)
The Senior Indenture also prohibits the Corporation from creating, assuming,
incurring or suffering to exist, as security for indebtedness for borrowed
money, any mortgage, pledge, encumbrance or lien or charge of any kind upon
the Voting Stock of Bank of America (other than directors' qualifying shares)
without effectively providing that the Senior Securities shall be secured
equally and ratably with (or prior to) such indebtedness; provided, however,
that the Corporation may create, assume, incur or suffer to exist any such
mortgage, pledge, encumbrance or lien or charge without regard to the
foregoing provisions so long as after giving effect thereto, the Corporation
will own at least 80% of the Voting Stock of Bank of America then issued and
outstanding, free and clear of any such mortgage, pledge, encumbrance or lien
or charge. (Section 1004 of the Senior Indenture)
The Subordinated Indenture does not contain any of the foregoing covenants.
The Corporation is not restricted by the Indentures from incurring, assuming
or becoming liable for any type of debt or other obligations, from creating
liens on its property (other than, in the case of the Senior Indenture, the
Voting Stock of Bank of America as described above) for any purposes or from
paying dividends or making distributions on its capital stock or purchasing or
redeeming its capital stock. The Indentures do not require the maintenance of
any financial ratios or specified levels of net worth or liquidity. In
addition, the Indentures do not contain any provision which would require the
Corporation to repurchase or redeem or otherwise modify the terms of any of
its Debt Securities upon a change in control or other events involving the
Corporation which may adversely affect the creditworthiness of the Debt
Securities.
MODIFICATION AND WAIVER
Except as to the definition of Controlled Subsidiary in the Senior Indenture
and certain other modifications and amendments not adverse to Holders of Debt
Securities, modifications and amendments of and waivers of compliance with
certain restrictive provisions under each Indenture may be made only with the
consent of the Holders of not less than 66 2/3% in principal amount of the
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Outstanding Debt Securities of each series thereunder affected by such
modification, amendment or waiver; provided that no such modification or
amendment may, without the consent of the Holder of each Outstanding Debt
Security or coupon affected thereby: (i) change the Stated Maturity of the
principal or any installment of principal or any installment of interest, if
any; (ii) reduce the amount of principal or interest, if any, thereon, or any
premium payable upon redemption or repayment thereof or in the case of an
Original Issue Discount Security the amount of principal payable upon
acceleration of the Maturity thereof; (iii) change the place of payment or the
currency in which principal or interest, if any, is payable; (iv) impair the
right to institute suit for the enforcement of any payment of the principal,
premium, if any, and interest, if any, or adversely affect the right of
repayment, if any, at the option of the Holder; (v) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the applicable
Indenture or for waiver of compliance with certain provisions of the
applicable Indenture or for waiver of certain defaults; (vi) reduce the
requirements contained in the applicable Indenture for quorum or voting; or
(vii) modify any of the above provisions. (Section 902)
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series issued thereunder if Debt Securities of that
series are issuable in whole or in part as Bearer Securities. (Section 1401 of
the Senior Indenture, Section 1601 of the Subordinated Indenture) A meeting
may be called at any time by the Trustee for such Debt Securities, or upon the
request of the Corporation or the Holders of at least 10% in principal amount
of the Outstanding Debt Securities of such series, in any such case upon
notice given in accordance with the Indenture with respect thereto. (Section
1402 of the Senior Indenture, Section 1602 of the Subordinated Indenture)
Except as limited by the proviso in the preceding paragraph, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may
be adopted by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series; provided, however,
that any resolution with respect to any consent or waiver which may be given
by the Holders of not less than 66 2/3% in principal amount of the Outstanding
Debt Securities of a series issued under an Indenture may be adopted at a
meeting or an adjourned meeting at which a quorum is present only by the
affirmative vote of the Holders of not less than 66 2/3% in principal amount
of such Outstanding Debt Securities of that series; and provided further, that
any resolution with respect to any demand, consent, waiver or other action
which may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding Debt
Securities of a series issued under an Indenture may be adopted at a meeting
or adjourned meeting at which a quorum is present by the affirmative vote of
the Holders of such specified percentage in principal amount of the
Outstanding Debt Securities of that series. (Section 1404 of the Senior
Indenture, Section 1604 of the Subordinated Indenture)
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with the applicable Indenture
with respect thereto will be binding on all Holders of Debt Securities of that
series and the related coupons issued under that Indenture. The quorum at any
meeting of Holders of a series of Debt Securities called to adopt a
resolution, and at any reconvened meeting, will be persons holding or
representing a majority in principal amount of the Outstanding Debt Securities
of such series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the Holders
of not less than 66 2/3% in principal amount of the Outstanding Debt
Securities of a series, the Persons holding or representing 66 2/3% in
principal amount of the Outstanding Debt Securities of such series issued
under that Indenture will constitute a quorum. (Section 1404 of the Senior
Indenture, Section 1604 of the Subordinated Indenture)
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EVENTS OF DEFAULT
Unless otherwise provided in the applicable Prospectus Supplement, any
series of Senior Securities issued under the Senior Indenture will provide
that the following shall constitute Events of Default with respect to such
series: (i) default in payment of principal of or premium, if any, on any
Senior Security of such series when due; (ii) default for 30 days in payment
of interest, if any, on any Senior Security of such series or related coupon,
if any, when due; (iii) default in the deposit of any sinking fund payment on
any Senior Security of such series when due; (iv) default in the performance
or breach of any other covenant in such Indenture for the benefit of such
series, continued for 90 days after written notice thereof by the Trustee
thereunder or the Holders of at least 25% in principal amount of the
Outstanding Senior Securities of such series issued under that Indenture; and
(v) certain events of bankruptcy, insolvency or reorganization of the
Corporation or Bank of America. Unless otherwise provided in the applicable
Prospectus Supplement, an Event of Default will not be triggered with respect
to any series of Senior Securities issued under the Senior Indenture as a
result of an event of default pertaining to any other indebtedness of the
Corporation, including any other series of Debt Securities issued under the
Senior Indenture. (Section 501 of the Senior Indenture)
Unless otherwise provided in the applicable Prospectus Supplement, any
series of Subordinated Securities issued under the Subordinated Indenture will
provide that the only Event of Default will be certain events of bankruptcy of
the Corporation. (Section 501 of the Subordinated Indenture) Unless
specifically stated in the applicable Prospectus Supplement for a particular
series of Subordinated Securities, there is no right of acceleration of the
payment of principal of the Subordinated Securities upon a default in the
payment of principal, premium, if any, or interest, if any, or in the
performance of any covenant or agreement in the Subordinated Securities or
Subordinated Indenture. In the event of a default in the payment of principal,
premium, if any, or interest, if any, or the performance of any covenant or
agreement in the Subordinated Securities or Subordinated Indenture, the
Trustee, subject to certain limitations and conditions, may institute judicial
proceedings to enforce payment of such principal, premium, if any, or
interest, if any, or to obtain the performance of such covenant or agreement
or any other proper remedy. (Section 503 of the Subordinated Indenture)
The Corporation is required to file with each Trustee annually an Officers'
Certificate as to the existence of any default in the performance and
observance of any of the terms, provisions and conditions of the applicable
Indenture. (Section 1007 of the Senior Indenture, Section 1004 of the
Subordinated Indenture) Each Indenture provides that if an Event of Default
specified therein shall occur and be continuing with respect to any series of
Debt Securities, either the Trustee thereunder or the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of such series may
declare the principal of all the Debt Securities of such series (or in the
case of Original Issue Discount Securities, such portion of the principal
amount thereof as may be specified in the terms thereof) and all accrued but
unpaid interest thereon to be due and payable. (Section 502) In certain cases,
the Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may, on behalf of the Holders of all Debt Securities
of any such series and any related coupons, waive any past default or Event of
Default except a default (i) in payment of the principal of or premium, if
any, or interest, if any, on any of the Debt Securities of such series or (ii)
in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Outstanding Debt
Security of such series or coupon affected. (Section 513)
Each Indenture contains a provision entitling the Trustee thereunder,
subject to the duty of such Trustee during default to act with the required
standard of care, to be indemnified by the Holders of the Debt Securities of
any series thereunder or any related coupons before proceeding to exercise any
right or power under such Indenture with respect to such series at the request
of such Holders. (Section 603) Each Indenture provides that no Holder of any
Debt Securities of any series thereunder or any related coupons may institute
any proceeding, judicial or otherwise, to enforce such Indenture except in the
case of failure of the Trustee thereunder, for 60 days, to act after it is
given notice of
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default, a request to enforce such Indenture by the Holders of not less than
25% in principal amount of the Outstanding Debt Securities of such series and
an offer of reasonable indemnity. (Section 507) This provision will not
prevent any Holder of Debt Securities or any related coupons from enforcing
payment of the principal thereof and premium, if any, and interest, if any,
thereon at the respective due dates thereof. (Section 508) The Holders of a
majority in principal amount of the Outstanding Debt Securities of any series
issued under an Indenture may direct the time, method and place of conducting
any proceedings for any remedy available to the Trustee for such Debt
Securities or exercising any trust or power conferred on it with respect to
the Debt Securities of such series. However, such Trustee may refuse to follow
any direction that conflicts with law or the Indenture under which it serves
or which it determines in good faith would be unjustly prejudicial to Holders
not joining therein. (Section 512)
Each Indenture provides that the Trustee thereunder will, within 90 days
after the occurrence of a default with respect to any series of Debt
Securities thereunder known to it, give to the Holders of Debt Securities of
such series notice of such default if not cured or waived, but, except in the
case of a default in the payment of principal of or premium, if any, or
interest, if any, on any Debt Securities of such series or any related coupons
or in the payment of any sinking fund installment with respect to Debt
Securities of such series, the Trustee for such Debt Securities shall be
protected in withholding such notice if, and so long as, the Trustee
determines in good faith that the withholding of such notice is in the
interest of the Holders of such Debt Securities. (Section 602)
DEFEASANCE
The Corporation may terminate certain of its obligations under each
Indenture with respect to the Debt Securities of any series thereunder,
including its obligations to comply with the covenants described under the
heading "Covenants Contained in Indentures" above, with respect to such Debt
Securities, on the terms and subject to the conditions contained in such
Indentures, by depositing in trust with the Trustee money and/or, to the
extent such Debt Securities are denominated and payable in U.S. dollars only,
Eligible Instruments which, through the payment of principal and interest in
accordance with their terms, will provide money in an amount sufficient to pay
the principal and premium, if any, and interest, if any, on such Debt
Securities, and any mandatory sinking fund, repayment or analogous payments
thereon, on the scheduled due dates therefor. Such deposit and termination is
conditioned upon the Corporation's delivery of an opinion of counsel that the
Holders of such Debt Securities will have no federal income tax consequences
as a result of such deposit and termination. Such termination will not relieve
the Corporation of its obligation to pay when due the principal of or interest
on such Debt Securities if such Debt Securities of such series are not paid
from the money or Eligible Instruments held by the Trustee for the payment
thereof. (Section 1501 of the Senior Indenture, Section 1701 of the
Subordinated Indenture) The applicable Prospectus Supplement may further
describe the provisions, if any, permitting or restricting such defeasance
with respect to the Debt Securities of a particular series.
SUBORDINATION
The Subordinated Securities shall be subordinate and junior in right of
payment, to the extent set forth in the Subordinated Indenture, to all Senior
Debt (as defined below) of the Corporation. In the event that the Corporation
shall default in the payment of any principal, premium, if any, or interest,
if any, on any Senior Debt when the same becomes due and payable, whether at
Maturity or at a date fixed for prepayment or by declaration of acceleration
or otherwise, then, unless and until such default shall have been cured or
waived or shall have ceased to exist, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Subordinated
Securities, or in respect of any redemption, repayment, retirement, purchase
or other acquisition of any of the Subordinated Securities.
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(Section 1801 of the Subordinated Indenture) "Senior Debt" means any
obligation of the Corporation to its creditors, whether now outstanding or
subsequently incurred, other than (i) any obligation as to which, in the
instrument creating or evidencing the obligation or pursuant to which the
obligation is outstanding, it is provided that such obligation is not Senior
Debt and (ii) the Subordinated Securities. (Section 101 of the Subordinated
Indenture) As of September 30, 1996, the Corporation (the Parent) had
approximately $10.9 billion of Senior Debt outstanding.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Corporation, its creditors or its property, (ii) any proceeding for the
liquidation, dissolution or other winding up of the Corporation, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Corporation for the benefit of creditors or (iv)
any other marshalling of the assets of the Corporation, all Senior Debt
(including any interest thereon accruing after the commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made on account of the
principal of or premium, if any, or interest, if any, on the Subordinated
Securities. In such event, any payment or distribution on account of the
principal of or premium, if any, or interest, if any, on the Subordinated
Securities, whether in cash, securities or other property (other than
securities of the Corporation or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in the subordination provisions with respect to
the Subordinated Securities, to the payment of all Senior Debt at the time
outstanding, and to any securities issued in respect thereof under any such
plan of reorganization or readjustment), which would otherwise (but for the
subordination provisions) be payable or deliverable in respect of the
Subordinated Securities shall be paid or delivered directly to the holders of
Senior Debt in accordance with the priorities then existing among such holders
until all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full. (Section
1801 of the Subordinated Indenture)
In the event of any such proceeding, after payment in full of all sums owing
with respect to Senior Debt, the Holders of Subordinated Securities, together
with the holders of any obligations of the Corporation ranking on a parity
with the Subordinated Securities, shall be entitled to be paid from the
remaining assets of the Corporation the amounts at the time due and owing on
account of unpaid principal of and premium, if any, and interest, if any, on
the Subordinated Securities and such other obligations before any payment or
other distribution, whether in cash, property or otherwise, shall be made on
account of any capital stock or obligations of the Corporation ranking junior
to the Subordinated Securities and such other obligations. If any payment or
distribution on account of the principal of or interest on the Subordinated
Securities of any character or any security, whether in cash, securities or
other property (other than securities of the Corporation or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
subordination provisions with respect to the Subordinated Securities, to the
payment of all Senior Debt at the time outstanding and to any securities
issued in respect thereof under any such plan of reorganization or
readjustment) shall be received by any Holder of any Subordinated Securities
in contravention of any of the terms hereof and before all the Senior Debt
shall have been paid in full, such payment or distribution or security shall
be received in trust for the benefit of, and shall be paid over or delivered
and transferred to, the holders of the Senior Debt at the time outstanding in
accordance with the priorities then existing among such holders for
application to the payment of all Senior Debt remaining unpaid to the extent
necessary to pay all such Senior Debt in full. (Section 1801 of the
Subordinated Indenture) By reason of such subordination, in the event of the
insolvency of the Corporation, holders of Senior Debt may receive more,
ratably, and holders of the Subordinated Securities having a claim pursuant to
such securities may receive less, ratably, than the other creditors of the
Corporation. Such subordination will not prevent the occurrence of any Event
of Default in respect of the Subordinated Securities.
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The Subordinated Indenture may be modified or amended as provided under
"Modification and Waiver" above, provided that no such modification or
amendment may, without the consent of the holders of all Senior Debt
outstanding, modify any of the provisions of the Subordinated Indenture
relating to the subordination of the Subordinated Securities and any related
coupons in a manner adverse to such holders. (Section 902 of the Subordinated
Indenture)
INFORMATION CONCERNING THE TRUSTEES
The Senior Trustee serves as trustee under two indentures, and an affiliate
of the Senior Trustee, First Trust of New York, serves as trustee under one
indenture, in each case, for Senior Debt pursuant to which certain debentures
and notes of the Corporation are outstanding. Bank of America and certain of
its affiliates also maintain deposit accounts and/or conduct other banking
transactions with First Bank Systems, Inc., an affiliate of the Senior
Trustee.
The Subordinated Trustee serves as trustee under three indentures for
subordinated debt pursuant to which certain debentures and notes of the
Corporation are outstanding. An affiliate of the Subordinated Trustee,
ChaseMellon Shareholders Services, L.L.C., serves as transfer agent and
registrar for the Corporation's outstanding common and preferred stock, as
depositary for certain of the Corporation's preferred stock issues and as
Rights Agent with respect to rights associated with the Corporation's common
stock. The Chase Manhattan Bank, an affiliate of the Subordinated Trustee,
serves as trustee under two indentures, one for subordinated debt and one for
Senior Debt, of the Corporation. In addition, Bank of America and certain of
its affiliates maintain deposit accounts and/or conduct other banking
transactions with The Chase Manhattan Bank.
The Trustees may, from time to time, make loans to the Corporation and
perform other services for the Corporation in the normal course of business.
Under the provisions of the Trust Indenture Act, upon the occurrence of a
default under an indenture, if a trustee has a conflicting interest (as
defined in the Trust Indenture Act) the trustee must, within 90 days, either
eliminate such conflicting interest or resign. Under the provisions of the
Trust Indenture Act, an indenture trustee shall be deemed to have a
conflicting interest if the trustee is a creditor of the obligor. If the
trustee fails either to eliminate the conflicting interest or to resign within
10 days after the expiration of such 90-day period, the trustee is required to
notify debt holders to this effect and any debt holder who has been a bona
fide holder for at least six months may petition a court to remove the trustee
and to appoint a successor trustee.
BOOK-ENTRY ISSUANCE
DTC will act as securities depository for all of the Preferred Securities,
the Junior Subordinated Debentures and the Debt Securities, unless otherwise
referred to in the Prospectus Supplement relating to an offering of Preferred
Securities, Junior Subordinated Debentures or Debt Securities. The Preferred
Securities, the Junior Subordinated Debentures and the Debt Securities, will
be issued only as fully-registered securities registered in the name of Cede &
Co. (DTC's nominee). One or more fully-registered global certificates will be
issued for the Preferred Securities of each Issuer Trust and the Junior
Subordinated Debentures and Debt Securities, representing in the aggregate the
total number of such Issuer Trust's Preferred Securities or aggregate
principal balance of Junior Subordinated Debentures or Debt Securities,
respectively, and will be deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its Participants deposit with DTC. DTC also facilitates
the settlement among Participants of securities transactions, such as
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need for
physical movement of securities certificates. "Direct Participants" include
securities brokers and
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dealers, banks, trust companies, clearing corporations and certain other
organizations. DTC is owned by a number of its Direct Participants and by the
New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the
National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as securities brokers and dealers, banks and
trust companies that clear through or maintain custodial relationships with
Direct Participants, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the
Commission.
Purchases of Preferred Securities, Junior Subordinated Debentures or Debt
Securities within the DTC system must be made by or through Direct
Participants, which will receive a credit for the Preferred Securities, Junior
Subordinated Debentures or Debt Securities on DTC's records. The ownership
interest of each actual purchaser of each Preferred Security, each Junior
Subordinated Debenture and each Debt Security ("Beneficial Owner") is in turn
to be recorded on the Direct and Indirect Participants' records. Beneficial
Owners will not receive written confirmation from DTC of their purchases, but
Beneficial Owners are expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased Preferred Securities, Junior Subordinated Debentures or Debt
Securities. Transfers of ownership interests in the Preferred Securities,
Junior Subordinated Debentures or Debt Securities are to be accomplished by
entries made on the books of Participants acting on behalf of Beneficial
Owners. Beneficial Owners will not receive certificates representing their
ownership interests in Preferred Securities, Junior Subordinated Debentures or
Debt Securities, except in the event that use of the book-entry system for the
Preferred Securities of such Issuer Trust or Junior Subordinated Debentures or
Debt Securities is discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities, Junior Subordinated Debentures or Debt Securities; DTC's records
reflect only the identity of the Direct Participants to whose accounts such
Preferred Securities, Junior Subordinated Debentures or Debt Securities are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners and the voting
rights of Direct Participants, Indirect Participants and Beneficial Owners
will be governed by arrangements among them, subject to any statutory or
regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to Cede & Co. as the registered holder of
the Preferred Securities, Junior Subordinated Debentures or Debt Securities.
If less than all of an Issuer Trust's Preferred Securities or the Junior
Subordinated Debentures or Debt Securities are being redeemed, DTC's current
practice is to determine by lot the amount of the interest of each Direct
Participant to be redeemed.
Although voting with respect to the Preferred Securities, the Junior
Subordinated Debentures or Debt Securities is limited to the holders of record
of the Preferred Securities, Junior Subordinated Debentures or Debt
Securities, in those instances in which a vote is required, neither DTC nor
Cede & Co. will itself consent or vote with respect to Preferred Securities,
Junior Subordinated Debentures or Debt Securities. Under its usual procedures,
DTC would mail an omnibus proxy (the "Omnibus Proxy") to the relevant Trustee
as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose
accounts such Preferred Securities, Junior Subordinated Debentures or Debt
Securities are credited on the record date (identified in a listing attached
to the Omnibus Proxy).
Distribution payments on the Preferred Securities, the Junior Subordinated
Debentures or the Debt Securities will be made by the relevant Trustee to DTC.
DTC's practice is to credit Direct
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Participants' accounts on the relevant payment date in accordance with their
respective holdings shown on DTC's records unless DTC has reason to believe
that it will not receive payments on such payment date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices and will be the responsibility of such Participant and
not of DTC, the relevant Trustee, the Issuer Trust thereof or the Corporation,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of Distributions to DTC is the responsibility of the
relevant Trustee, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursements of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to any of the Preferred Securities, the Junior Subordinated Debentures
or the Debt Securities at any time by giving reasonable notice to the relevant
Trustee and the Corporation. In the event that a successor securities
depository is not obtained, definitive Preferred Security, Junior Subordinated
Debenture or Debt Security certificates representing such Preferred
Securities, Junior Subordinated Debentures or Debt Securities are required to
be printed and delivered. The Corporation, at its option, may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor depository). After a Debenture Event of Default, the holders of a
majority in liquidation preference of Preferred Securities or aggregate
principal amount of Junior Subordinated Debentures or Debt Securities may
determine to discontinue the system of book-entry transfers through DTC. In
any such event, definitive certificates for such Preferred Securities, Junior
Subordinated Debentures or Debt Securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuer Trusts and the Corporation
believe to be accurate, but the Issuer Trusts and the Corporation assume no
responsibility for the accuracy thereof. Neither the Issuer Trusts nor the
Corporation has any responsibility for the performance by DTC or its
Participants of their respective obligations as described herein or under the
rules and procedures governing their respective operations.
PLAN OF DISTRIBUTION
The Junior Subordinated Debentures, the Preferred Securities or Debt
Securities may be sold in a public offering to or through underwriters or
dealers designated from time to time. The Corporation and each Issuer Trust
may sell its Junior Subordinated Debentures, Preferred Securities or Debt
Securities as soon as practicable after effectiveness of the Registration
Statement of which this Prospectus is a part. The names of any underwriters or
dealers involved in the sale of the Junior Subordinated Debentures, Preferred
Securities or Debt Securities, as the case may be, in respect of which this
Prospectus is delivered, the amount or number of Junior Subordinated
Debentures, Preferred Securities and Debt Securities to be purchased by any
such underwriters and any applicable commissions or discounts will be set
forth in the Prospectus Supplement.
Underwriters may offer and sell Junior Subordinated Debentures, Preferred
Securities or Debt Securities at a fixed price or prices, which may be
changed, or from time to time at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. In
connection with the sale of Preferred Securities, underwriters may be deemed
to have received compensation from the Corporation and/or the applicable
Issuer Trust in the form of underwriting discounts or commissions and may also
receive commissions. Underwriters may sell Junior Subordinated Debentures,
Preferred Securities or Debt Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters.
50
<PAGE>
Any underwriting compensation paid by the Corporation and/or the applicable
Issuer Trust to underwriters in connection with the offering of Junior
Subordinated Debentures, Preferred Securities or Debt Securities, and any
discounts, concessions or commissions allowed by such underwriters to
participating dealers, will be described in a Prospectus Supplement.
Underwriters and dealers participating in the distribution of Junior
Subordinated Debentures, Preferred Securities or Debt Securities may be deemed
to be underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of such Junior Subordinated Debentures,
Preferred Securities or Debt Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters and dealers
may be entitled, under agreement with the Corporation and the applicable
Issuer Trust, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act, and to
reimbursement by the Corporation for certain expenses.
In connection with the offering of the Preferred Securities of any Issuer
Trust, such Issuer Trust may grant to the underwriters an option to purchase
additional Preferred Securities to cover over-allotments, if any, at the
initial public offering price (with an additional underwriting commission), as
may be set forth in the accompanying Prospectus Supplement. If such Issuer
Trust grants any over-allotment option, the terms of such over-allotment
option will be set forth in the Prospectus Supplement for such Preferred
Securities.
Underwriters and dealers may engage in transactions with, or perform
services for, the Corporation and/or the applicable Issuer Trust and/or any of
their affiliates in the ordinary course of business.
The Junior Subordinated Debentures, the Preferred Securities and the Debt
Securities will be new issues of securities and will have no established
trading market. Any underwriters to whom Junior Subordinated Debentures,
Preferred Securities or Debt Securities are sold for public offering and sale
may make a market in such Junior Subordinated Debentures, Preferred Securities
and Debt Securities, but such underwriters will not be obligated to do so and
may discontinue any market making at any time without notice. Such Junior
Subordinated Debentures, Preferred Securities or Debt Securities may or may
not be listed on a national securities exchange or the Nasdaq National Market.
No assurance can be given as to the liquidity of or the existence of trading
markets for any Junior Subordinated Debentures, Preferred Securities or Debt
Securities.
This Prospectus and the related prospectus Supplement may be used by BA
Securities, Inc., an affiliate of the Corporation and each Issuer Trust, in
connection with offers and sales related to market-making transactions in the
Debt Securities and Junior Subordinated Debentures and, to the extent
authorized, the Preferred Securities. BA Securities, Inc. may act as principal
or agent in such transactions. Such sales will be made at prices related to
prevailing market prices at the time of sale or otherwise.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, certain
legal matters will be passed upon for the Corporation and the Issuer Trusts
with respect to the Junior Subordinated Debentures, the Preferred Securities
and the Guarantees by Orrick, Herrington & Sutcliffe LLP, San Francisco,
California, counsel to the Corporation, and for the Issuer Trusts by Richards,
Layton & Finger, special Delaware counsel to the Corporation and the Issuer
Trusts. The validity of the Debt Securities will be passed upon for the
Corporation by the General Counsel of the Corporation. Orrick, Herrington &
Sutcliffe LLP will rely on the opinion of Richards, Layton & Finger as to
matters of Delaware law.
51
<PAGE>
EXPERTS
The consolidated financial statements and schedules of the Corporation and
subsidiaries incorporated by reference in the Corporation's Annual Report on
Form 10-K for the year ended December 31, 1995, have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon
incorporated therein and herein by reference. Such consolidated financial
statements and schedules are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting and
auditing.
52
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE CORPORATION, THE ISSUER TRUSTS
OR BY THE UNDERWRITERS. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND
THE PROSPECTUS NOR ANY SALE MADE HEREUNDER AND THEREUNDER SHALL UNDER ANY
CIRCUMSTANCE CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE CORPORATION OR THE ISSUER TRUSTS SINCE THE DATE HEREOF. THIS
PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER
OR SOLICITATION.
---------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
PROSPECTUS SUPPLEMENT
<S> <C>
Risk Factors.............................................................. S-4
BankAmerica Capital I..................................................... S-9
BankAmerica Corporation................................................... S-10
Ratio of Earnings to Fixed Charges........................................ S-10
Capitalization............................................................ S-11
Accounting Treatment...................................................... S-12
Certain Terms of Series 1 QUIPS........................................... S-12
Certain Terms of Series 1 Subordinated Debentures......................... S-15
Certain Federal Income Tax Consequences................................... S-19
Underwriting.............................................................. S-23
Validity of Securities.................................................... S-24
<CAPTION>
PROSPECTUS
<S> <C>
Available Information .................................................... 4
Incorporation of Certain Documents by Reference........................... 5
BankAmerica Corporation................................................... 6
The Issuer Trusts......................................................... 8
Use of Proceeds........................................................... 9
Description of Junior Subordinated Debentures............................. 9
Description of Preferred Securities....................................... 22
Description of Guarantees................................................. 34
Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees............................... 37
Description of Debt Securities............................................ 38
Book-Entry Issuance....................................................... 48
Plan of Distribution...................................................... 50
Validity of Securities.................................................... 51
Experts................................................................... 52
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PREFERRED SECURITIES
BANKAMERICA CAPITAL I
% CUMULATIVE QUARTERLY INCOME
PREFERRED SECURITIES,
SERIES 1 (QUIPS/SM/)
FULLY AND UNCONDITIONALLY GUARANTEED,
TO THE EXTENT DESCRIBED HEREIN, BY
BANKAMERICA CORPORATION
---------------
[LOGO OF BANKAMERICA CORPORATION]
---------------
GOLDMAN, SACHS & CO.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Registration fee under the Securities Act of 1933, as amended.... $454,545.46
NASD fee......................................................... *
Blue Sky fees and expenses (including counsel fees).............. *
Fees of rating agencies.......................................... *
Trustees' fee and expenses....................................... *
Printing and engraving........................................... *
Accounting services.............................................. *
Legal fees of Registrant's counsel............................... *
Miscellaneous.................................................... *
-----------
Total............................................................ $ *
===========
</TABLE>
- --------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
the Certificate of Incorporation of the Corporation provides that a director
of the Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
the Corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General Corporation law or (iv) for
any transaction from which the director derives any improper personal benefit.
The Certificate of Incorporation further provides that, if the Delaware
General Corporation Law is amended to further eliminate or limit the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the Delaware
General Corporation Law, as so amended, without further stockholder action.
As authorized by Section 145 of the Delaware General Corporation Law, the
By-laws of the Corporation provide for indemnification of directors and
officers in certain cases. A director or officer of the Corporation (i) must
be indemnified by the Corporation for all expenses of litigation or other
legal proceedings when he or she is successful on the merits or otherwise in
such litigation or proceedings, (ii) must be indemnified by the Corporation
for the expenses, judgments, fines and amounts paid in settlement of
litigation or proceedings (other than a derivative action), even if he or she
is not successful, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interest of the
Corporation (and, in the case of a criminal proceedings, had no reasonable
cause to believe his or her conduct was not lawful) and (iii) must be
indemnified by the Corporation for expenses of a derivative action, even if he
or she is not successful, if he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of
the Corporation, provided that no indemnification may be made in the case of a
derivative action if the person is judged liable to the Corporation, unless a
court determines that, despite such adjudication but in view of the
circumstances, such person is entitled to indemnification of such expenses.
The By-laws of the Corporation further provide that the Corporation may
purchase insurance on behalf of its directors and officers, whether or not it
would have the power to indemnify them against such liability.
II-1
<PAGE>
There is directors' and officers' liability insurance presently outstanding
which insures directors and officers of the Corporation and certain of its
subsidiaries, including Bank of America. The policies cover loss for which the
Corporation or any of such subsidiaries shall be required or permitted by law
to indemnify directors and officers and which result from claims made against
such directors or officers based upon the commission of wrongful acts in the
performance of their duties. The policies also cover losses which the
directors or officers must pay as the result of claims brought against them
based upon the commission of wrongful acts in the performance of their duties
and for which they are not indemnified by the Corporation or any of such
subsidiaries. The losses covered by the policies are subject to certain
exclusions and do not include fines or penalties imposed by law or other
matters uninsurable under the law. The policies contain certain provisions
regarding deductibles.
Reference is made to the Underwriting Agreement which is filed as an Exhibit
to this Registration Statement.
Under each Trust Agreement, the Corporation will agree to indemnify each of
the Trustees of the Issuer Trust or any predecessor Trustee for the Issuer
Trust, and to hold the Trustee harmless, against any loss, damage, claims,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of the
Trust Agreement, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any
of its powers or duties under the Trust Agreement.
ITEM 16.EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
-------
<C> <S>
1(a) Form of Underwriting Agreement--Preferred Securities*
1(b) Form of Underwriting Agreement--Debt Securities*
1(c) Form of Underwriting Agreement Standard Provisions*
3(a) Certificate of Incorporation of BankAmerica Corporation, as amended
(incorporated by reference to Exhibit 3(a) to BankAmerica
Corporation's Form 8-A, Amendment No. 1, filed August 26, 1994 (File
No. 1-7377))
3(b) By-laws, as amended (incorporated by reference to Exhibit 3(b) to
BankAmerica Corporation's Form 10-Q for the period ending June 30,
1996 (File No. 1-7377))
4(a) Senior Indenture between BankAmerica Corporation and First Trust of
California, National Association, as successor Trustee (incorporated
by reference to Exhibit 4.1 to Registration Statement on Form S-3
(Reg. No. 33-43862) dated January 17, 1992).
4(b) First Supplemental Indenture between BankAmerica Corporation and First
Trust of California, National Association, as successor Trustee dated
August 1, 1994 (incorporated by reference to Exhibit 4.19 to Amendment
No. 1 to Registration Statement on Form S-3 (Reg. No. 33-54385) dated
August 17, 1994).
4(c) Subordinated Indenture between BankAmerica Corporation and Chemical
Trust Company of California, as Trustee (incorporated by reference to
Exhibit 4.2 to Registration Statement on Form S-3 (Reg. No. 33-43862)
dated January 17, 1992).
4(d) First Supplemental Indenture between BankAmerica Corporation and
Chemical Trust Company of California, as Trustee, dated as of
September 8, 1992 (incorporated by reference to Exhibit 4.1 to Current
Report to Form 8-K dated September 11, 1992, File No. 1-7377).
4(e) Form of Note (incorporated by reference to Exhibit 4.5(a) to Amendment
No. 1 to Registration Statement on Form S-3 (Reg. No. 33-54385) dated
August 17, 1994).
4(f) Form of Junior Subordinated Indenture, dated as of , 1996,
between BankAmerica Corporation and Bankers Trust Company, as
Debenture Trustee*
4(g) Certificate of Trust of BankAmerica Capital I*
4(h) Trust Agreement of BankAmerica Capital I*
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
4(i) Certificate of Trust of BankAmerica Capital II*
4(j) Trust Agreement of BankAmerica Capital II*
4(k) Certificate of Trust of BankAmerica Capital III*
4(l) Trust Agreement of BankAmerica Capital III*
4(m) Certificate of Trust of BankAmerica Capital IV*
4(n) Trust Agreement of BankAmerica Capital IV*
4(o) Certificate of Trust of BankAmerica Capital V*
4(p) Trust Agreement of BankAmerica Capital V*
4(q) Certificate of Trust of BankAmerica Capital VI*
4(r) Trust Agreement of BankAmerica Capital VI*
4(s) Certificate of Trust of BankAmerica Capital VII*
4(t) Trust Agreement of BankAmerica Capital VII*
4(u) Certificate of Trust of BankAmerica Capital VIII*
4(v) Trust Agreement of BankAmerica Capital VIII*
4(w) Form of Amended and Restated Trust Agreement of BankAmerica Capital I*
4(x) Form of Amended and Restated Trust Agreement of Bankamerica Capital II*
4(y) Form of Amended and Restated Trust Agreement of BankAmerica Capital III*
4(z) Form of Amended and Restated Trust Agreement of BankAmerica Capital IV*
4(aa) Form of Amended and Restated Trust Agreement of BankAmerica Capital V*
4(bb) Form of Amended and Restated Trust Agreement of BankAmerica Capital VI*
4(cc) Form of Amended and Restated Trust Agreement of BankAmerica Capital VII*
4(dd) Form of Amended and Restated Trust Agreement of BankAmerica Capital
VIII*
4(ee) Form of Preferred Security Certificate for BankAmerica Capital I
(included as Exhibit D of Exhibit 4(w))*
4(ff) Form of Preferred Security Certificate for BankAmerica Capital II
(included as Exhibit D of Exhibit 4(x))*
4(gg) Form of Preferred Security Certificate for BankAmerica Capital III
(included as Exhibit D of Exhibit 4(y))*
4(hh) Form of Preferred Security Certificate for BankAmerica Capital IV
(included as Exhibit D of Exhibit 4(z))*
4(ii) Form of Preferred Security Certificate for BankAmerica Capital V
(included as Exhibit D of Exhibit 4(aa))*
4(jj) Form of Preferred Security Certificate for BankAmerica Capital VI
(included as Exhibit D of Exhibit 4(bb))*
4(kk) Form of Preferred Security Certificate for BankAmerica Capital VII
(included as Exhibit D of Exhibit 4(cc))*
4(ll) Form of Preferred Security Certificate for BankAmerica Capital VIII
(included as Exhibit D of Exhibit 4(dd))*
4(mm) Form of Guarantee Agreement for BankAmerica Capital I*
4(nn) Form of Guarantee Agreement for BankAmerica Capital II*
4(oo) Form of Guarantee Agreement for BankAmerica Capital III*
4(pp) Form of Guarantee Agreement for BankAmerica Capital IV*
4(qq) Form of Guarantee Agreement for BankAmerica Capital V*
4(rr) Form of Guarantee Agreement for BankAmerica Capital VI*
4(ss) Form of Guarantee Agreement for BankAmerica Capital VII*
4(tt) Form of Guarantee Agreement for BankAmerica Capital VIII*
4(uu) BankAmerica Corporation and certain of its consolidated subsidiaries
have outstanding certain long-term debt. None of such debt exceeds 10%
of the total assets of BankAmerica Corporation and its consolidated
subsidiaries; therefore, copies of the constituent instruments defining
the rights of the holders of such debt are not included as exhibits to
this Registration Statement. BankAmerica Corporation agrees to furnish
copies of such instruments to the Commission upon request
</TABLE>
II-3
<PAGE>
<TABLE>
<C> <S>
5(a) Opinion of Orrick, Herrington & Sutcliffe LLP*
5(b) Opinion of General Counsel of BankAmerica Corporation*
5(c) Opinion of Richards, Layton & Finger*
8 Opinion of Orrick, Herrington & Sutcliffe LLP as to certain federal
income tax matters*
12 Computation of ratio of earnings to fixed charges*
23(a) Consent of Ernst & Young LLP
23(b) Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit
5(a))*
23(c) Consent of General Counsel of BankAmerica Corporation*
23(d) Consent of Richards, Layton & Finger*
24 Powers of Attorney
25(a) Form T-1 Statement of Eligibility of Bankers Trust Company to act as
trustee under the Junior Subordinated Indenture*
25(b) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital I*
25(c) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital II*
25(d) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital III*
25(e) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital IV*
25(f) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital V*
25(g) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital VI*
25(h) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital VII*
25(i) Form T-1 Statement of Eligibility of Bankers Trust (Delaware) to act as
trustee under the Amended and Restated Trust Agreement of BankAmerica
Capital VIII*
25(j) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital I*
25(k) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital II*
25(l) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital III*
25(m) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital IV*
25(n) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital V*
25(o) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital VI*
25(p) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital VII*
25(q) Form T-1 Statement of Eligibility of Bankers Trust Company under the
Guarantee for the benefit of the holders of Preferred Securities of
BankAmerica Capital VIII*
25(r) Form T-1 Statement of Eligibility of First Trust of California, National
Association, Trustee.*
25(s) Form T-1 Statement of Eligibility of Chemical Trust Company of
California, Trustee.*
</TABLE>
- --------
* To be filed by amendment.
II-4
<PAGE>
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants, hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
each Registrant pursuant to the provisions described under Item 15 above, or
otherwise, each Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by each Registrant of expenses incurred or paid by a director, officer
or controlling person of each Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, each
Registrant will, unless in the opinion of its counsel the matter has been
settled by the controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
Each of the undersigned Registrants hereby also undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this Registration Statement (or the most recent post-
effective amendment thereto) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in effective registration statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in post-effective amendment by those
paragraphs is contained in periodic reports filed by a Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof;
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering;
II-5
<PAGE>
(4) to provide to the underwriter at the closing specified in the
underwriting agreement certificates in such denominations and registered in
such names as required by the underwriter to permit prompt delivery to each
purchaser; and
(5) that, for the purposes of determining any liability under the Securities
Act of 1933:
(i) the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained
in the form of prospectus filed by the Registration pursuant to Rule
424(b)(1) or (4) or 487(h) under the Securities Act shall be deemed to
be part of this Registration Statement as of the time it was declared
effective; and
(ii) each post-effective amendment that contains a form of prospectus
shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, State of
California, on the 5th day of November, 1996.
BANKAMERICA CORPORATION
By: /s/ Shaun M. Maguire
-------------------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and as of the date indicated.
SIGNATURE TITLE
--------- -----
David A. Coulter* Chairman of the Board, President and
- --------------------------------- Chief Executive Officer (Principal
David A. Coulter Executive Officer)
Michael E. O'Neill* Vice Chairman and Chief Financial
- --------------------------------- Officer (Principal Financial Officer)
Michael E. O'Neill
John J. Higgins* Executive Vice President and Chief
- --------------------------------- Accounting Officer (Principal
John J. Higgins* Accounting Officer)
Joseph F. Alibrandi* Director
- ---------------------------------
Joseph F. Alibrandi
Jill E. Barad* Director
- ---------------------------------
Jill E. Barad
Peter B. Bedford* Director
- ---------------------------------
Peter B. Bedford
Andrew F. Brimmer* Director
- ---------------------------------
Andrew F. Brimmer
Richard A. Clarke* Director
- ---------------------------------
Richard A. Clarke
Timm F. Crull* Director
- ---------------------------------
Timm F. Crull
II-7
<PAGE>
SIGNATURE TITLE
--------- -----
Kathleen Feldstein* Director
- ---------------------------------
Kathleen Feldstein
Donald E. Guinn* Director
- ---------------------------------
Donald E. Guinn
Frank L. Hope, Jr.* Director
- ---------------------------------
Frank L. Hope, Jr.
Ignacio E. Lozano, Jr.* Director
- ---------------------------------
Ignacio E. Lozano, Jr.
Walter E. Massey* Director
- ---------------------------------
Walter E. Massey
John M. Richman* Director
- ---------------------------------
John M. Richman
Richard M. Rosenberg* Director
- ---------------------------------
Richard M. Rosenberg
A. Michael Spence* Director
- ---------------------------------
A. Michael Spence
Solomon D. Trujillo* Director
- ---------------------------------
Solomon D. Trujillo
*By: /s/ Carolyn Chew Hamilton
-------------------------------
Carolyn Chew Hamilton,
Attorney-in-Fact
Dated: November 5, 1996
II-8
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital I certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL I
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
---------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital II certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL II
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
---------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital III certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL III
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
---------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
II-9
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital IV certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL IV
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
----------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital V certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL V
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
----------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital VI certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL VI
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
----------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
II-10
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital VII certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL VII
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
----------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
Pursuant to the requirements of the Securities Act of 1933, BankAmerica
Capital VIII certifies that it has reasonable grounds to believe that it meets
all the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City and County of San Francisco, and State
of California on the 5th day of November, 1996.
BANKAMERICA CAPITAL VIII
By: BankAmerica Corporation,
as Depositor
By: /s/ Shaun M. Maguire
----------------------------
Name: Shaun M. Maguire
Title: Senior Vice President and
Assistant Treasurer
II-11
<PAGE>
EXHIBIT 23
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of BankAmerica
Corporation for the registration of Junior Subordinated Deferrable Interest
Debentures and Debt Securities of BankAmerica Corporation and Preferred
Securities of the Issuer Trusts and to the incorporation by reference therein
of our report dated January 16, 1996, with respect to the consolidated
financial statements and schedules of BankAmerica Corporation incorporated by
reference in its Annual Report on Form 10-K for the year ended December 31,
1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Francisco, California
November 4, 1996
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as Chairman of the Board and Chief Executive
Officer of BankAmerica Corporation and file with the Securities and Exchange
Commission pursuant to the Securities Act of 1933 a shelf registration
statement and any amendments covering the public offering of senior debt,
subordinated debt, junior subordinated debt, preferred securities of trusts
created by BankAmerica Corporation and guarantees with respect to such
preferred securities.
This power of attorney, unless earlier revoked or terminated, will terminate
on January 31, 1998.
/s/ David A. Coulter
-------------------------------------
David A. Coulter
Dated: November 4, 1996
<PAGE>
POWER OF ATTORNEY
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW HAMILTON,
and each of them, my attorneys-in-fact, each with full power of substitution,
to sign for me as Chief Financial Officer of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 a shelf registration statement and any amendments covering the public
offering of senior debt, subordinated debt, junior subordinated debt,
preferred securities of trusts created by BankAmerica Corporation and
guarantees with respect to such preferred securities.
This power of attorney, unless earlier revoked or terminated, will terminate
on January 31, 1998.
/s/ Michael E. O'Neill
-------------------------------------
Michael E. O'Neill
Dated: November 4, 1996
<PAGE>
POWER OF ATTORNEY
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as Chief Accounting Officer of BankAmerica
Corporation and file with the Securities and Exchange Commission pursuant to
the Securities Act of 1933 a shelf registration statement and any amendments
covering the public offering of senior debt, subordinated debt, junior
subordinated debt, preferred securities of trusts created by BankAmerica
Corporation and guarantees with respect to such preferred securities.
This power of attorney, unless earlier revoked or terminated, will terminate
on January 31, 1998.
/s/ John J. Higgins
-------------------------------------
John J. Higgins
Dated: November 4, 1996
<PAGE>
POWER OF ATTORNEY
I hereby appoint CHERYL SOROKIN, JEFFREY R. LAPIC, and CAROLYN CHEW
HAMILTON, and each of them, my attorneys-in-fact, each with full power of
substitution, to sign for me as a Director of BankAmerica Corporation and file
with the Securities and Exchange Commission pursuant to the Securities Act of
1933 a shelf registration statement and any amendments covering the public
offering of senior debt, subordinated debt, junior subordinated debt,
preferred securities of trusts created by BankAmerica Corporation and
guarantees with respect to such preferred securities.
This power of attorney, unless earlier revoked or terminated, will terminate
on January 31, 1998.
Dated: November 4, 1996
/s/ Joseph F. Alibrandi
---------------------------------------
Joseph F. Alibrandi
/s/ Jill E. Barad
---------------------------------------
Jill E. Barad
/s/ Peter B. Bedford
---------------------------------------
Peter B. Bedford
/s/ Andrew F. Brimmer
---------------------------------------
Andrew F. Brimmer
/s/ Richard A. Clarke
---------------------------------------
Richard A. Clarke
/s/ Timm F. Crull
---------------------------------------
Timm F. Crull
/s/ Kathleen Feldstein
---------------------------------------
Kathleen Feldstein
/s/ Donald E. Guinn
---------------------------------------
Donald E. Guinn
/s/ Frank L. Hope, Jr.
---------------------------------------
Frank L. Hope, Jr.
/s/ Ignacio E. Lozano, Jr.
---------------------------------------
Ignacio E. Lozano, Jr.
<PAGE>
/s/ Walter E. Massey
----------------------------------------
Walter E. Massey
/s/ John M. Richman
----------------------------------------
John M. Richman
/s/ Richard M. Rosenberg
----------------------------------------
Richard M. Rosenberg
/s/ A. Michael Spence
----------------------------------------
A. Michael Spence
/s/ Solomon D. Trujillo
----------------------------------------
Solomon D. Trujillo
