<PAGE>
As filed with the Securities and Exchange Commission on December 4, 1996
Reg. Nos. 333-15559 and 333-15559-01 through -08
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 1
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
<CAPTION>
(Exact name of registrant (Exact name of each registrant as specified
as specified in its charter) in its Trust Agreements)
<S> <C>
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 number, (Address, including zip code, and telephone number,
including area code, of registrant's principal including area code, of each registrant's
executive offices) 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.
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<PAGE>
---------------
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------
<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. BankAmerica Corporation's obligations
under the Junior Subordinated Deferrable Interest Debentures, the Junior
Subordinated Indenture, the Trust Agreements and the Expense Agreements
provide a full and unconditional guarantee of the Preferred Securities.
(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.
* Previously Paid
<PAGE>
INTRODUCTORY NOTE
This Registration Statement contains two forms of Prospectus Supplement, one
relating to % Cumulative Quarterly Income Preferred Securities with $25
liquidation amounts and one relating to % Cumulative Semi-Annual Income
Preferred Securities with $1,000 liquidation amounts. Either or both
Prospectus Supplements may be used depending on market conditions.
<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 DECEMBER 4, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1996
PREFERRED SECURITIES
BANKAMERICA CAPITAL I
% CUMULATIVE QUARTERLY INCOME PREFERRED SECURITIES,
SERIES 1 (QUIPSSM)*
(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 SAVINGS ACCOUNTS, DEPOSITS OR OTHER OBLIGATIONS OF
ANY BANK OR ANY NONBANK SUBSIDIARY OF THE CORPORATION 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 December 31, 1996, at the annual rate of
% of the Liquidation Amount of $25 per Series 1 QUIPS ("Distributions").
The Distribution on December 31, 1996 will be $ per Series 1 QUIPS. 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--Interest Income and 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 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 or Capital Treatment Event (each 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 Securities 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 $17.1 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 and the Series 1 Guarantee should look only to the
assets of the Corporation for payments on the Series 1 Subordinated Debentures
and the Series 1 Guarantee. 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, (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 (iii) 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 (including its subsidiaries)
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, which will include
both stated interest and any de minimis original issue discount on the Series
1 Subordinated Debentures) 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--Interest Income
and 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 OR CAPITAL TREATMENT EVENT REDEMPTION
Upon the occurrence and during the continuation of a Tax Event or Capital
Treatment Event, the Corporation has the right to redeem the Series 1
Subordinated Debentures in whole (but not in part)
S-5
<PAGE>
within 90 days following the occurrence of such Tax Event or Capital Treatment
Event and therefore cause a mandatory redemption of the Series 1 QUIPS 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 "--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.
A "Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence 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 thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action 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 the
Corporation will not be entitled to treat an amount equal to the Liquidation
Amount of the Series 1 QUIPS as "Tier 1 Capital" (or the then equivalent
thereof) for purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Corporation.
EXCHANGE OF SERIES 1 SECURITIES FOR SERIES 1 SUBORDINATED DEBENTURES
The Corporation will have the right at any time to terminate the Series 1
Issuer Trust and after satisfaction of the liabilities of creditors of the
Series 1 Issuer Trust as provided by applicable law cause the Series 1
Subordinated Debentures to be distributed to the holders of the Series 1
Securities 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
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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.
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" in this Prospectus Supplement 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
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<PAGE>
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 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
Series 1 Guarantee. 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 unless such action materially and
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
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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. 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" 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), as 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), as 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 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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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>
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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 and the
offering of $450,000,000 of 8.07% Capital Securities, Series A (the "Series A
Securities") and $300,000,000 of 7.7% Capital Securities, Series B (the
"Series B Securities"), each of which was consummated on November 27, 1996.
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 Trusts Holding Solely Junior Subordinated
Deferrable Interest Debentures of the Corporation(b)......... --
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(c)............... $35,966 $
======= =======
</TABLE>
- --------
(a) Issuances of common and preferred stock of $350 million have been
dedicated to retire or redeem subordinated capital notes.
(b) The Series 1 Preferred Securities are issued by the Series 1 Issuer Trust.
The sole assets of the Series 1 Issuer Trust consist of approximately $
principal amount of Series 1 Subordinated Debentures issued by the
Corporation to the Series 1 Issuer Trust and the Expense Agreement. The
Series 1 Subordinated Debentures will bear interest at the rate of % per
annum and will mature on , 2026, which date may be shortened to a
date not earlier than , 2001 or extended to a date not later than
, 2045, in either case, if certain conditions are met. The
Corporation owns all of the Series 1 Common Securities of the Series 1
Issuer Trust.
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<PAGE>
The Series A Securities were issued by BankAmerica Institutional Capital A
(the "Series A Trust"). The sole assets of the Series A Trust consist of
$463,918,000 principal amount of 8.07% Junior Subordinated Deferrable
Interest Debentures, Series A (the "Series A Debentures") issued by the
Corporation to the Series A Trust and a related expense reimbursement
agreement issued by the Corporation. The Series A Debentures bear interest
at the rate of 8.07% per annum and will mature on December 31, 2026. The
Corporation owns all of the Common Securities of the Series A Trust.
The Series B Securities were issued by BankAmerica Institutional Capital B
(the "Series B Trust"). The sole assets of the Series B Trust consist of
$309,279,000 principal amount of 7.7% Junior Subordinated Deferrable
Interest Debentures, Series B (the "Series B Debentures") issued by the
Corporation to the Series B Trust and a related expense reimbursement
agreement issued by the Corporation. The Series B Debentures bear interest
at the rate of 7.7% per annum and will mature on December 31, 2026. The
Corporation owns all of the Common Securities of the Series B Trust.
(c) 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.
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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 included in a
separate line item in the consolidated balance sheets of the Corporation,
entitled "Corporation Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts 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.
The Corporation has agreed that future financial reports of the Corporation
will: (i) present the preferred securities issued by other trusts created by
the Corporation on the Corporation's balance sheet in the separate line item
entitled "Corporation Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts Holding Solely Junior Subordinated Deferrable Interest
Debentures of the Corporation"; (ii) include in a footnote to the financial
statements disclosure that the sole assets of the trusts are the junior
subordinated debentures and the related expense agreement (specifying as to
each trust the principal amount, interest rate and maturity date of junior
subordinated debentures held); and (iii) if Staff Accounting Bulletin 53
treatment is sought, include, in an audited footnote to the financial
statements, disclosure that (a) the trusts are wholly owned, (b) the sole
assets of the trusts are the junior subordinated debentures (specifying as to
each trust the principal amount, interest rate and maturity date of the junior
subordinated debentures held) and the related expense agreement, and (c) the
obligations of the Corporation under the junior subordinated debentures, the
relevant indenture, trust agreement and guarantee, in the aggregate,
constitute a full and unconditional guarantee by the Corporation of such
trust's obligations under the preferred securities issued by such trust.
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, which describes the material provisions thereof, does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
the Trust Agreement, to which reference is hereby made. 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 at the close of business 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 December 31,
1996 and the Distribution will be $ per Series 1 QUIPS. 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
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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 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
(including its subsidiaries) 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--
Interest Income and 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 below) 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
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respect to the Series 1 Securities (the "Redemption Price"), equal to the
aggregate Liquidation Amount of such Series 1 Securities plus accumulated and
unpaid Distributions thereon to but excluding the date of redemption (the
"Redemption Date"). See "Description of Preferred Securities--Redemption" 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."
The Corporation has the right to redeem the Series 1 Subordinated Debentures
(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 or Capital Treatment 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. A redemption of the
Series 1 Subordinated Debentures would cause a mandatory redemption of the
Series 1 QUIPS and Series 1 Common Securities.
"Like Amount" means (i) with respect to a redemption of Series 1 Securities,
Series 1 Securities having a Liquidation Amount (as defined below) equal to
that portion of the principal amount of Series 1 Subordinated Debentures to be
contemporaneously redeemed in accordance with the Junior Subordinated
Indenture, allocated to the Series 1 Common Securities and to the Series 1
QUIPS based upon the relative Liquidation Amounts of such classes and the
proceeds of which will be used to pay the Redemption Price of the Series 1
Securities and (ii) with respect to a distribution of Junior Subordinated
Debentures to holders of Series 1 QUIPS in connection with a dissolution or
liquidation of the Series 1 Issuer Trust, Series 1 Subordinated Debentures
having a principal amount equal to the Liquidation Amount of the Series 1
QUIPS of the holder to whom such Series 1 Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $25 per Series 1 QUIPS.
"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 such 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 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) the Series 1 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.
"Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence 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 thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action 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 the
Corporation will not be entitled to treat an amount equal to the Liquidation
Amount of the Series 1 QUIPS as "Tier 1 Capital" (or the then equivalent
thereof) for purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Corporation.
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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.
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
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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 Liquidation 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, 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, which describes the material terms
thereof, does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Junior Subordinated Indenture, to which
reference is hereby made. 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
December 31, 1996, 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 by the Property Trustee in
trust for the benefit of the holders of the Series 1 Securities. 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
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the extent permitted by law) at the rate per annum of % thereof,
compounded quarterly. 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, 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 %). During an
Extension Period, interest will continue to accrue and holders of Series 1
Subordinated Debentures (or
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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--Interest Income and 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, 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
(including its subsidiaries) 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
In the event a Tax Event has occurred and is continuing and the Series 1
Issuer Trust is the holder of all of the Series 1 Subordinated Debentures, the
Corporation will pay Additional Sums, if any (as defined below), on the Series
1 Subordinated Debentures.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions paid by the Series 1 Issuer Trust on the
outstanding Series 1 QUIPS and Common Securities of the Series 1 Issuer Trust
shall not be reduced as a result of any additional taxes, duties and other
governmental charges to which the Series 1 Issuer Trust has become subject as
a result of a Tax Event.
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
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within 90 days following the occurrence of a Tax Event or Capital Treatment
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 the holders of
the Series 1 Securities 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 Securities
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.
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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 "--Interest Income and
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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INTEREST INCOME AND 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 (other than de minimis OID, if any). As a result, each
Securityholder will be required to include interest payments in taxable income
at the time accrued or received in accordance with its own method of
accounting. There can be no assurance, however, that the Internal Revenue
Service will agree with such determination.
However, if 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 and any de minimis OID allocated to such period. 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 and any de minimis OID
allocated to such period on an economic accrual basis over the length of the
extended interest period. A Securityholder that disposes of the Series 1 QUIPS
during an Extension Period may suffer a loss because the market value of the
Series 1 QUIPS likely will fall if the Corporation exercises its option to
defer payments of interest on the Series 1 Subordinated Debentures. To the
extent the selling price is less than the Securityholder's adjusted tax basis
(which will include all accrued but unpaid interest), a Securityholder will
recognize a capital loss.
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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.
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 included in gross income and
decreased by any interest payments not treated as "qualified stated interest"
(as defined above). See "--Interest Income and Original Issue Discount." Gain
or loss recognized by a Securityholder on Series 1 QUIPS held for more than
one year generally will be taxable as long-term capital gain or loss. Amounts
attributable to accrued interest with respect to a Securityholder's pro rata
share of the Series 1 Subordinated Debentures not previously included in
income will be taxable as ordinary income.
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
S-23
<PAGE>
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 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" and "--Distribution of
Corresponding Junior Subordinated Debentures."
S-24
<PAGE>
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 each of the Underwriters named below, and each of
such Underwriters for whom Goldman Sachs & Co. [insert other representatives]
are acting as representatives has severally agreed to purchase from the Series
1 Issuer Trust, the respective number of Series 1 QUIPS set forth opposite its
name 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 [ 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-25
<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-26
<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-13
Certain Terms of Series 1 QUIPS........................................... S-13
Certain Terms of Series 1 Subordinated Debentures......................... S-17
Certain Federal Income Tax Consequences................................... S-21
Underwriting.............................................................. S-25
Validity of Securities.................................................... S-26
<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................................................. 33
Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees............................... 36
Description of Debt Securities............................................ 38
Book-Entry Issuance....................................................... 48
Plan of Distribution...................................................... 50
Validity of Securities.................................................... 51
Experts................................................................... 51
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PREFERRED SECURITIES
BANKAMERICA CAPITAL I
% CUMULATIVE QUARTERLY INCOME
PREFERRED SECURITIES,
SERIES 1 (QUIPSSM)
FULLY AND UNCONDITIONALLY GUARANTEED,
TO THE EXTENT DESCRIBED HEREIN, BY
BANKAMERICA CORPORATION
---------------
[LOGO OF BANKAMERICA CORPORATION APPEARS HERE]
---------------
GOLDMAN, SACHS & CO.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<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 DECEMBER 4, 1996
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED , 1996
PREFERRED SECURITIES
BANKAMERICA CAPITAL I
% CUMULATIVE SEMI-ANNUAL INCOME PREFERRED SECURITIES,
SERIES 1
(LIQUIDATION AMOUNT $1,000 PER PREFERRED SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, TO THE EXTENT DESCRIBED HEREIN, BY
BANKAMERICA CORPORATION
----------
The % Cumulative Semi-Annual Income Preferred Securities, Series 1 (the
"Series 1 Preferred Securities"), 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 Preferred
Securities, the "Series 1 Securities"). Bankers Trust Company is the Property
Trustee of the Series 1 Issuer Trust. The Series 1 Issuer Trust exists for the
sole purpose of issuing the Series 1 Securities
(Continued on next page)
----------
SEE "RISK FACTORS" BEGINNING ON PAGE S-4 HEREOF FOR CERTAIN INFORMATION
RELEVANT TO AN INVESTMENT IN THE SERIES 1 PREFERRED SECURITIES.
----------
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
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) TRUST(2)(3)
-------------- ------------- ------------
<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 Preferred
Securities 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 Preferred Security (or $ in
the aggregate). See "Underwriting."
(3) 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 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.
The Series 1 Preferred Securities 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 Preferred Securities 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.
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
PREFERRED SECURITIES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN
THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED IN THE OVER THE COUNTER
MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT
ANY TIME.
---------------
(cover page continued)
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 (the "Stated Maturity"), The Series 1 Preferred Securities
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 Preferred Securities will be entitled to receive
preferential cumulative cash distributions accumulating from the date of
original issuance and payable semi-annually in arrears on the last day of June
and December of each year, commencing December 31, 1996, at the annual rate of
% of the Liquidation Amount of $1,000 per Series 1 Preferred Security
("Distributions"). The Distribution on December 31, 1996 will be $ per
Series 1 Preferred Security. 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 10 consecutive semi-annual periods 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 Preferred Securities 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 Preferred Securities are entitled will accumulate) at
the rate of % per annum, compounded semi-annually, and holders of Series 1
Preferred Securities 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--Interest Income and 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 Preferred Securities. 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
Preferred Securities, 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 Preferred Securities. The Series 1
Guarantee does not cover payment of Distributions when the Series 1 Issuer
Trust does not have sufficient funds to pay such Distributions. In such event,
a holder of Series 1 Preferred Securities 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
S-2
<PAGE>
(cover page continued)
Series 1 Guarantee 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 Preferred Securities are subject to mandatory redemption, in
whole or in part, upon repayment of the Series 1 Subordinated Debentures at
their Stated Maturity or earlier redemption. Subject to 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
Subordinated Debentures are redeemable prior to their Stated Maturity at the
option of the Corporation (i) on or after , 2006, in whole at
any time or in part from time to time, or (ii) in whole (but not in part)
prior to , 2006 and within 90 days following the occurrence of a Tax
Event or Capital Treatment Event (each as defined herein), in each case at the
applicable redemption price set forth herein plus the accrued and unpaid
interest on the Series 1 Subordinated Debentures so redeemed to the date fixed
for redemption. See "Certain Terms of Series 1 Preferred Securities--
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 Securities in
liquidation of the Series 1 Issuer Trust, subject to the Corporation having
received (i) an opinion of counsel to the effect that such distribution will
not be a taxable event to holders of the Series 1 Preferred Securities and
(ii) 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 Preferred Securities--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 Preferred Securities
will be entitled to receive a Liquidation Amount of $1,000 per Series 1
Preferred Security 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.
The Series 1 Preferred Securities 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 Preferred Securities 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 Preferred Securities in certificated form will not be issued in
exchange for the global certificates. See "Book-Entry Issuance" in the
accompanying Prospectus.
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.
S-3
<PAGE>
RISK FACTORS
Prospective purchasers of the Series 1 Preferred Securities 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 Preferred
Securities 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 $17.1 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 Preferred
Securities 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 and the Series 1
Guarantee should look only to the assets of the Corporation for payments on
the Series 1 Subordinated Debentures and the Series 1 Guarantee. 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
Preferred Securities 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 10 consecutive semi-annual periods 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
deferral, semi-annual Distributions on the Series 1 Preferred Securities by
the Series 1 Issuer Trust will be deferred (and the amount of Distributions to
which holders of the Series 1 Preferred Securities are entitled will
accumulate additional Distributions thereon at the rate of % per annum,
compounded semi-annually 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, (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 (iii) 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
S-4
<PAGE>
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
(including its subsidiaries) 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 10 consecutive semi-annual periods 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 semi-annually, 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 Preferred Securities--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 Preferred Securities
will continue to accrue income (in the form of original issue discount, which
will include both stated interest and any de minimis original issue discount
on the Series 1 Subordinated Debentures) 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
Preferred Securities 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 Preferred Securities prior to the record
date for the payment of Distributions. See "Certain Federal Income Tax
Consequences--Interest Income and Original Issue Discount" and "--Sales or
Redemption of Series 1 Preferred Securities."
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 Preferred
Securities is likely to be affected. A holder that disposes of its Series 1
Preferred Securities during an Extension Period, therefore, might not receive
the same return on its investment as a holder that continues to hold its
Series 1 Preferred Securities. In addition, as a result of the existence of
the Corporation's right to defer interest payments, the market price of the
Series 1 Preferred Securities (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 OR CAPITAL TREATMENT EVENT REDEMPTION
Upon the occurrence and during the continuation of a Tax Event or Capital
Treatment Event, the Corporation has the right to redeem the Series 1
Subordinated Debentures in whole (but not in part) prior to , 2006 and
within 90 days following the occurrence of such Tax Event or Capital Treatment
Event and therefore cause a mandatory redemption of the Series 1 Preferred
Securities. Any such redemption shall be at a price equal to the Make-Whole
Amount (as defined in "Certain Terms of Series 1 Preferred Securities--
Redemption"), together with accrued interest to but excluding the date fixed
for redemption. 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
S-5
<PAGE>
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 Preferred
Securities 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 "--Possible Tax Law Changes Affecting the Series 1 Preferred Securities"
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 Preferred Securities prior to , 2006.
A "Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence 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 thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or
decision is announced on or after the date of issuance of the Series 1
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that the Corporation will not be entitled to treat an
amount equal to the Liquidation Amount of the Series 1 Preferred Securities as
"Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable
to the Corporation.
EXCHANGE OF SERIES 1 SECURITIES FOR SERIES 1 SUBORDINATED DEBENTURES
The Corporation will have the right at any time to terminate the Series 1
Issuer Trust and after satisfaction of the liabilities of creditors of the
Series 1 Issuer Trust as provided by applicable law, cause the Series 1
Subordinated Debentures to be distributed to the holders of the Series 1
Securities in liquidation of the Series 1 Issuer Trust. The exercise of such
right is subject to the Corporation having received (i) an opinion of counsel
to the effect that such distribution will not be a taxable event to holders of
the Series 1 Preferred Securities and (ii) 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 Preferred Securities--
Liquidation of Series 1 Issuer Trust and Distribution of Series 1 Subordinated
Debentures to Holders."
MARKET PRICES
There can be no assurance as to the market prices for Series 1 Preferred
Securities or Series 1 Subordinated Debentures that may be distributed in
exchange for Series 1 Preferred Securities if a liquidation of the Series 1
Issuer Trust occurs. Accordingly, the Series 1 Preferred Securities 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 Preferred Securities 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 Preferred Securities offered hereby. Because holders of
Series 1 Preferred Securities may receive Series 1 Subordinated Debentures on
termination of the Series 1 Issuer Trust, prospective purchasers of Series 1
Preferred Securities 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" in this Prospectus
Supplement and "Description of Junior Subordinated Debentures--Corresponding
Junior Subordinated Debentures" in the accompanying Prospectus.
S-6
<PAGE>
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 Preferred Securities. 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 Preferred Securities 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 Preferred Securities, 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 Preferred Securities
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 Preferred Securities), 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
Preferred Securities 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 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 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 Preferred Securities 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 Preferred Securities or otherwise, and,
in such event, holders of the Series 1 Preferred Securities 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 and be continuing
and such event is attributable to the failure of the Corporation to pay
interest or premium, if any, 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 Preferred Securities may institute a legal proceeding
directly against the Corporation for enforcement of payment to such holder of
the principal of or interest or premium, if any, on such Series 1 Subordinated
Debentures having a principal amount equal to the aggregate Liquidation Amount
of the Series 1 Preferred Securities 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 Preferred Securities in the
Direct Action. Except as described herein, holders of Series 1 Preferred
Securities 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 Preferred Securities by
acceptance thereof agrees to the provisions of the Series 1 Guarantee and the
Junior Subordinated Indenture.
LIMITED VOTING RIGHTS
Holders of Series 1 Preferred Securities will generally have limited voting
rights relating only to the modification of the Series 1 Preferred Securities
and the exercise of the Series 1 Issuer Trust's
S-7
<PAGE>
rights as holder of Series 1 Subordinated Debentures and the Series 1
Guarantee. Holders of Series 1 Preferred Securities 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 Preferred Securities to ensure that the Series 1 Issuer Trust will be
classified for United States federal income tax purposes as a grantor trust
unless such action materially and 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 PREFERRED SECURITIES
The Corporation does not intend to have the Series 1 Preferred Securities
listed on the New York Stock Exchange or any other securities exchange. The
Series 1 Preferred Securities may trade at prices that do not fully reflect
the value of accrued and unpaid interest with respect to the underlying Series
1 Subordinated Debentures. See "Certain Federal Income Tax Consequences--
Interest Income and Original Issue Discount" and "--Sales or Redemption of
Series 1 Preferred Securities" for a discussion of the United States federal
income tax consequences that may result from a taxable disposition of the
Series 1 Preferred Securities.
POSSIBLE TAX LAW CHANGES AFFECTING THE SERIES 1 PREFERRED SECURITIES
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. 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 Preferred Securities before , 2006. See "Certain Terms of
Series 1 Subordinated Debentures--Redemption" in this Prospectus Supplement
and "Description of Preferred Securities--Redemption" in the accompanying
Prospectus. See also "Certain Federal Income Tax Consequences--Possible Tax
Law Changes."
S-8
<PAGE>
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), as 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), as 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 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 Preferred Securities, 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
Preferred Securities. 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 31 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.
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).
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<PAGE>
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>
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<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 Preferred
Securities and the offering of $450,000,000 of 8.07% Capital Securities,
Series A (the "Series A Securities") and $300,000,000 of 7.7% Capital
Securities, Series B (the "Series B Securities"), each of which was
consummated on November 27, 1996. 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
Securities of Subsidiary Trusts Holding Solely Junior
Subordinated Deferrable Interest Debentures of the
Corporation(b)............................................... --
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(c)............... $35,966 $
======= =======
</TABLE>
- --------
(a) Issuances of common and preferred stock of $350 million have been
dedicated to retire or redeem subordinated capital notes.
(b) The Series 1 Preferred Securities are issued by the Series 1 Issuer Trust.
The sole assets of the Series 1 Issuer Trust consist of approximately $
principal amount of Series 1 Subordinated Debentures issued by the
Corporation to the Series 1 Issuer Trust and the Expense Agreement. The
Series 1 Subordinated Debentures will bear interest at the rate of % per
annum and will mature on , . The Corporation owns all of the Series
1 Common Securities of the Series 1 Issuer Trust.
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<PAGE>
The Series A Securities were issued by BankAmerica Institutional Capital A
(the "Series A Trust"). The sole assets of the Series A Trust consist of
$463,918,000 principal amount of 8.07% Junior Subordinated Deferrable
Interest Debentures, Series A (the "Series A Debentures") issued by the
Corporation to the Series A Trust and a related expense reimbursement
agreement issued by the Corporation. The Series A Debentures bear interest
at the rate of 8.07% per annum and will mature on December 31, 2026. The
Corporation owns all of the Common Securities of the Series A Trust.
The Series B Securities were issued by BankAmerica Institutional Capital B
(the "Series B Trust"). The sole assets of the Series B Trust consist of
$309,279,000 principal amount of 7.7% Junior Subordinated Deferrable
Interest Debentures, Series B (the "Series B Debentures") issued by the
Corporation to the Series B Trust. The Series B Debentures bear interest at
the rate of 7.7% per annum and will mature on December 31, 2026. The
Corporation owns all of the Common Securities of the Series B Trust.
(c) 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.
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<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 Preferred Securities will be
included in a separate line item in the consolidated balance sheets of the
Corporation, entitled "Corporation Obligated Mandatorily Redeemable Preferred
Securities of Subsidiary Trusts Holding Solely Junior Subordinated Deferrable
Interest Debentures of the Corporation" and appropriate disclosures about the
Series 1 Preferred Securities, 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 Preferred Securities as an
expense in the consolidated statements of income.
The Corporation has agreed that future financial reports of the Corporation
will: (i) present the preferred securities issued by other trusts created by
the Corporation on the Corporation's balance sheet in the separate line item
entitled "Corporation Obligated Mandatorily Redeemable Preferred Securities of
Subsidiary Trusts Holding Solely Junior Subordinated Deferrable Interest
Debentures of the Corporation"; (ii) include in a footnote to the financial
statements disclosure that the sole assets of the trusts are the junior
subordinated debentures and the related expense agreement (specifying as to
each trust the principal amount, interest rate and maturity date of junior
subordinated debentures held); and (iii) if Staff Accounting Bulletin 53
treatment is sought, include, in an audited footnote to the financial
statements, disclosure that (a) the trusts are wholly owned, (b) the sole
assets of the trusts are the junior subordinated debentures (specifying as to
each trust the principal amount, interest rate and maturity date of the junior
subordinated debentures held) and the related expense agreement, and (c) the
obligations of the Corporation under the junior subordinated debentures, the
relevant indenture, trust agreement and guarantee, in the aggregate,
constitute a full and unconditional guarantee by the Corporation of such
trust's obligations under the preferred securities issued by such trust.
CERTAIN TERMS OF SERIES 1 PREFERRED SECURITIES
GENERAL
The following summary of certain terms and provisions of the Series 1
Preferred Securities 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
Preferred Securities, which describes the material provisions thereof, does
not purport to be complete and is subject to, and is qualified in its entirety
by reference to, the Trust Agreement, to which reference is hereby made. 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 Preferred Securities represent beneficial interests in the
Series 1 Issuer Trust, and Distributions on each Series 1 Preferred Securities
will be payable at the annual rate of % of the stated Liquidation Amount
of $1,000, payable semi-annually in arrears on June 30 and December 31 of each
year, to the holders of the Series 1 Preferred Securities at the close of
business on the relevant record dates. The record dates will be, for so long
as the Series 1 Preferred Securities remain in book-entry form, one Business
Day prior to the relevant Distribution payment date and, in the event the
Series 1 Preferred Securities 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
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<PAGE>
issuance. The first Distribution payment date for the Series 1 Preferred
Securities will be December 31, 1996 and the Distribution will be $ per
Series 1 Preferred Security. 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 two. In the event that any
date on which Distributions are payable on the Series 1 Preferred Securities
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 10 consecutive semi-annual periods 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, semi-annual Distributions on the Series 1 Preferred Securities will
be deferred by the Series 1 Issuer Trust during any such Extension Period.
Distributions to which holders of the Series 1 Preferred Securities are
entitled will accumulate additional Distributions thereon at the rate per
annum of % thereof, compounded semi-annually 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 two. 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 (including its subsidiaries)
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 10
consecutive semi-annual periods 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.
S-14
<PAGE>
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 below) 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 Securities
(the "Redemption Price"), equal to the aggregate Liquidation Amount of such
Series 1 Securities plus accumulated and unpaid Distributions thereon to but
excluding the date of redemption (the "Redemption Date") and the related
amount of premium, if any, paid by the Corporation upon the concurrent
redemption of such Series 1 Subordinated Debentures. See "Description of
Preferred Securities--Redemption" 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."
The Corporation has the right to redeem the Series 1 Subordinated Debentures
(i) on or after , 2006, in whole at any time or in part from time to time,
or (ii) in whole (but not in part) prior to , 2006 and within 90 days
following the occurrence of a Tax Event or Capital Treatment Event (each as
defined below). A redemption of the Series 1 Subordinated Debentures would
cause a mandatory redemption of the Series 1 Preferred Securities and Series 1
Common Securities.
The Redemption Price, in the case of a redemption under (i) above, shall
equal the following prices expressed in percentages of the Liquidation Amount
(as defined below) together with accrued Distributions to but excluding the
date fixed for redemption. If redeemed during the 12-month period beginning
:
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2006........................................................... %
2007...........................................................
2008...........................................................
2009...........................................................
2010...........................................................
2011...........................................................
2012...........................................................
2013...........................................................
2014...........................................................
2015...........................................................
</TABLE>
and at 100% on or after , 2016.
The Redemption Price, in the case of a redemption following a Tax Event or
Capital Treatment Event as described under (ii) above, shall equal for each
Series 1 Preferred Security the Make-Whole Amount for a corresponding $1,000
principal amount of Series 1 Subordinated Debentures together with accrued
Distributions to but excluding the Redemption Date. The "Make-Whole Amount"
shall be equal to the greater of (i) 100% of the principal amount of such
Series 1 Subordinated Debentures or (ii) as determined by a Quotation Agent
(as defined below), the sum of the present values of the principal amount and
premium payable as part of the Redemption Price with respect to an optional
redemption of such Series 1 Subordinated Debentures on , 2006, together
with scheduled payments of interest from the Redemption Date to , 2006
(the "Remaining Life"), in each case discounted to the prepayment date on a
semi-annual basis (assuming a 360-day year consisting of 30-day months) at the
Adjusted Treasury Rate.
S-15
<PAGE>
"Adjusted Treasury Rate" means, with respect to any Redemption Date, the
Treasury Rate plus (i) % if such Redemption Date occurs on or before ,
1997 or (ii) % if such Redemption Date occurs after , 1997.
"Treasury Rate" means (i) the yield, under the heading which represents the
average for the immediately prior week, appearing in the most recently
published statistical release designated "H.15(519)" or any successor
publication which is published weekly by the Federal Reserve and which
establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant
Maturities," for the maturity corresponding to the Remaining Life (if no
maturity is within three months before or after the Remaining Life, yields for
the two published maturities most closely corresponding to the Remaining Life
shall be determined and the Treasury Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding to the
nearest month) or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date. The Treasury
Rate shall be calculated on the third Business Day preceding the Redemption
Date.
"Comparable Treasury Issue" means with respect to any Redemption Date the
United States Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
Remaining Life. If no United States Treasury security has a maturity which is
within a period from three months before to three months after , 2006,
the two most closely corresponding United States Treasury securities shall be
used as the Comparable Treasury Issue, and the Treasury Rate shall be
interpolated or extrapolated on a straight-line basis, rounding to the nearest
month using such securities.
"Quotation Agent" means and their respective successors; provided,
however, that if the foregoing shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the
Corporation shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer" means (i) the Quotation Agent and (ii) any other
Primary Treasury Dealer selected by the Debenture Trustee after consultation
with the Corporation.
"Comparable Treasury Price" means (A) the average of five Reference Treasury
Dealer Quotations for such Redemption Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the Debenture
Trustee obtains fewer than three such Reference Treasury Dealer Quotations,
the average of all such Quotations.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
Debenture Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted
in writing to the Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such Redemption
Date.
"Like Amount" means (i) with respect to a redemption of Series 1 Securities,
Series 1 Securities having a Liquidation Amount (as defined below) equal to
that portion of the principal amount of Series 1 Subordinated Debentures to be
contemporaneously redeemed in accordance with the Junior Subordinated
Indenture, allocated to the Series 1 Common Securities and to the Series 1
Preferred Securities based upon the relative Liquidation Amounts of such
classes and the proceeds of which will be used to pay the Redemption Price of
the Series 1 Securities and (ii) with respect to a distribution of Series 1
Subordinated Debentures to holders of Series 1 Preferred Securities in
connection with a dissolution or liquidation of the Series 1 Issuer Trust,
Series 1 Subordinated Debentures having a
S-16
<PAGE>
principal amount equal to the Liquidation Amount of the Series 1 Preferred
Securities of the holder to whom such Series 1 Subordinated Debentures are
distributed.
"Liquidation Amount" means the stated amount of $1,000 per Series 1
Preferred Security.
"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 such Series 1 Preferred Securities 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 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) the
Series 1 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.
"Capital Treatment Event" means the reasonable determination by the
Corporation that, as a result of the occurrence 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 thereof or
therein, or as a result of any official or administrative pronouncement or
action or judicial decision interpreting or applying such laws or regulations,
which amendment or change is effective or such pronouncement, action or
decision is announced on or after the date of issuance of the Series 1
Preferred Securities under the Trust Agreement, there is more than an
insubstantial risk that the Corporation will not be entitled to treat an
amount equal to the Liquidation Amount of the Series 1 Preferred Securities as
"Tier 1 Capital" (or the then equivalent thereof) for purposes of the capital
adequacy guidelines of the Federal Reserve, as then in effect and applicable
to the Corporation.
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 Preferred Securities in liquidation of the
Series 1 Issuer Trust. Such right is subject to the Corporation having
received (i) an opinion of counsel to the effect that such distribution will
not be a taxable event to the holders of Series 1 Preferred Securities and
(ii) prior approval of the Federal Reserve if then required under applicable
capital guidelines or policies of the Federal Reserve.
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 Preferred Securities.
LIQUIDATION VALUE
The amount payable on the Series 1 Preferred Securities in the event of any
liquidation of the Series 1 Issuer Trust is $1,000 per Series 1 Preferred
Security 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.
S-17
<PAGE>
REGISTRATION OF SERIES 1 PREFERRED SECURITIES
The Series 1 Preferred Securities will be represented by global certificates
registered in the name of DTC or its nominee. Beneficial interests in the
Series 1 Preferred Securities 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 Preferred
Securities 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 Preferred Securities
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 Preferred Securities are issued in definitive form, such Series 1
Preferred Securities will be in denominations of $1,000 and integral multiples
thereof and may be transferred or exchanged at the offices described below.
Payments on Series 1 Preferred Securities represented by a global security
will be made to DTC, as the depository for the Series 1 Preferred Securities.
In the event Series 1 Preferred Securities are issued in definitive form, the
Redemption Price and Distributions will be payable, the transfer of the Series
1 Preferred Securities will be registrable, and Series 1 Preferred Securities
will be exchangeable for Series 1 Preferred Securities 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, 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 Preferred Securities 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, which describes the material terms
thereof, does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Junior Subordinated Indenture, to which
reference is hereby made. 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.
S-18
<PAGE>
Concurrently with the issuance of the Series 1 Preferred Securities, 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 semi-annually in arrears on June 30 and
December 31 of each year (each, an "Interest Payment Date"), commencing
December 31, 1996, 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 by the Property Trustee in
trust for the benefit of the holders of the Series 1 Securities. 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 two. 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 semi-annually. The term "interest" as used herein shall include
semi-annual interest payments, interest on semi-annual 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.
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
Preferred Securities 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
S-19
<PAGE>
time to time for a period not exceeding 10 consecutive semi-annual periods
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 semi-annually 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 two. During an Extension Period, interest will continue to
accrue and holders of Series 1 Subordinated Debentures (or holders of Series 1
Preferred Securities 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--Interest Income and 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, 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
(including its subsidiaries) 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 10 consecutive semi-annual periods 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 Preferred Securities 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 Preferred Securities 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 Preferred Securities. 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
In the event a Tax Event has occurred and is continuing and the Series 1
Issuer Trust is the holder of all of the Series 1 Subordinated Debentures, the
Corporation will pay Additional Sums, if any (as defined below), on the Series
1 Subordinated Debentures.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions paid by the Series 1 Issuer Trust on the
outstanding Series 1 Preferred Securities and
S-20
<PAGE>
Series 1 Common Securities of the Series 1 Issuer Trust shall not be reduced
as a result of any additional taxes, duties and other governmental charges to
which the Series 1 Issuer Trust has become subject as a result of a Tax Event.
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 , 2006, in
whole at any time or in part from time to time, or (ii) in whole (but not in
part) prior to , 2006 and within 90 days following the occurrence of a Tax
Event or Capital Treatment Event (each as defined under "Certain Terms of
Series 1 Preferred Securities"), in each case at the redemption price
described below. The proceeds of any such redemption will be used by the
Series 1 Issuer Trust to redeem the Series 1 Securities.
The Redemption Price in the case of a redemption under (i) above shall equal
the following prices, expressed in percentages of the principal amount
together with accrued interest to but excluding the dated fixed for
redemption. If redeemed during the 12-month period beginning :
<TABLE>
<CAPTION>
REDEMPTION
YEAR PRICE
---- ----------
<S> <C>
2006......................................................... %
2007.........................................................
2008.........................................................
2009.........................................................
2010.........................................................
2011.........................................................
2012.........................................................
2013.........................................................
2014.........................................................
2015.........................................................
</TABLE>
and at 100% on or after , 2016.
The Redemption Price, in the case of a redemption following a Tax Event or
Capital Treatment Event as described under (ii) above, shall equal the Make-
Whole Amount (as defined under "Certain Terms of Series 1 Preferred
Securities--Redemption"), together with accrued interest to but excluding the
date fixed for redemption.
DISTRIBUTION OF SERIES 1 SUBORDINATED DEBENTURES
As described under "Certain Terms of Series 1 Preferred Securities--
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 the holders of the Series 1 Securities 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 Securities 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 Preferred Securities, 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 Preferred
Securities. 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
Preferred Securities.
S-21
<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 Preferred
Securities. This summary only addresses the tax consequences to a person that
acquires Series 1 Preferred Securities 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 Preferred
Securities, 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 Preferred Securities 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 Preferred Securities 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 Preferred Securities. 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 Preferred
Securities. 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 Preferred Securities 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 PREFERRED SECURITIES,
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 Preferred Securities,
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 Preferred
Securities (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 "--Interest Income and Original Issue Discount." No
amount included in income with respect to the Series 1 Preferred Securities
will be eligible for the dividends-received deduction.
S-22
<PAGE>
INTEREST INCOME AND 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 10 consecutive semi-annual periods 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 (other than de minimis OID, if any). As a result, each
Securityholder will be required to include interest payments in taxable income
at the time accrued or received in accordance with its own method of
accounting. There can be no assurance, however, that the Internal Revenue
Service will agree with such determination.
However, if 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 semi-annual period will
approximately equal the amount of the interest that accrues in that semi-
annual period at the stated interest rate and any de minimis OID allocated to
such period. 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 and
any de minimis OID allocated to such period on an economic accrual basis over
the length of the extended interest period. A Securityholder that disposes of
the Series 1 Preferred Securities during an Extension Period may suffer a loss
because the market value of the Series 1 Preferred Securities likely will fall
if the Corporation exercises its option to defer payments of interest on the
Series 1 Subordinated Debentures. To the extent the selling price is less than
the Securityholder's adjusted tax basis (which will include all accrued but
unpaid interest), a Securityholder will recognize a capital loss.
S-23
<PAGE>
DISTRIBUTION OF SERIES 1 SUBORDINATED DEBENTURES TO HOLDERS OF SERIES 1
PREFERRED SECURITIES
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 Preferred Securities-- 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 Preferred Securities before such distribution.
SALES OR REDEMPTION OF SERIES 1 PREFERRED SECURITIES
Gain or loss will be recognized by a Securityholder on a sale of Series 1
Preferred Securities (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 Preferred Securities sold or so redeemed. A
Securityholder's adjusted tax basis in the Series 1 Preferred Securities will
be increased by any OID included in gross income and decreased by any interest
payments not treated as "qualified stated interest." See "--Interest Income
and Original Issue Discount." Gain or loss recognized by a Securityholder on
Series 1 Preferred Securities held for more than one year generally will be
taxable as long-term capital gain or loss. Amounts attributable to accrued
interest with respect to a Securityholder's pro rata share of the Series 1
Subordinated Debentures not previously included in income will be taxable as
ordinary income.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
The amount of interest paid or OID accrued on the Series 1 Preferred
Securities 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 Preferred
Securities 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 Preferred Securities will be
reported to holders on Form 1099 and mailed to holders of the Series 1
Preferred Securities 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
S-24
<PAGE>
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 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 Preferred Securities, as described more fully in the accompanying
Prospectus under "Description of Preferred Securities--Redemption" and "--
Distribution of Corresponding Junior Subordinated Debentures."
CERTAIN ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other employee benefit plan
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") (a "Plan"), should consider the fiduciary standards of ERISA in the
context of the Plan's particular circumstances before authorizing an
investment in the Series 1 Preferred Securities. Accordingly, among other
factors, the fiduciary should consider whether the investment would satisfy
the prudence and diversification requirements of ERISA and would be consistent
with the documents and instruments governing the Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit Plans, as well as
individual retirement accounts and Keogh plans subject to Section 4975 of the
Code (also "Plans"), from engaging in certain transactions involving "plan
assets" with persons who are "parties in interest" under ERISA or
"disqualified persons" under the Code ("Parties in Interest") with respect to
such Plan. A violation of these "prohibited transaction" rules may result in
an excise tax or other liabilities under ERISA and/or Section 4975 of the Code
for such persons, unless exemptive relief is available under an applicable
statutory or administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA), certain church
plans (as defined in Section 3(33) of ERISA) and foreign plans (as described
in Section 4(b)(5) of ERISA) are not subject to the requirements of ERISA or
Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by the U.S.
Department of Labor (the "DOL"), the assets of the Series 1 Issuer Trust would
be deemed to be "plan assets" of a Plan for purposes of ERISA and Section 4975
of the Code if "plan assets" of the Plan were used to acquire an equity
interest in the Trust and no exception were applicable under the Plan Assets
Regulation. An "equity interest" is defined under the Plan Assets Regulation
as any interest in an entity other than an instrument which is treated as
indebtedness under applicable local law and which has no substantial equity
features and specifically includes a beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets Regulation, the assets
of the Series 1 Issuer Trust would not be deemed to be "plan assets" of
investing Plans if the Series 1 Preferred Securities are "publicly-offered
securities"--that is, if they are (1) widely held (i.e., owned upon completion
of this offering by more than 100 investors who are independent of the
Corporation and one another, (2) freely transferable and (3) sold as part of
an offering pursuant to an effective registration statement under the
Securities Act and then timely registered under Section 12(b) or 12(g)
S-25
<PAGE>
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). It is
expected that the Series 1 Preferred Securities will meet the criteria for
qualification as "publicly-offered securities" listed above. The Underwriters
expect (although no assurances can be given) that the Series 1 Preferred
Securities will be held by at least 100 independent investors at the
conclusion of this offering; there are no restrictions imposed on the transfer
of the Series 1 Preferred Securities; and the Series 1 Preferred Securities
will be sold as part of an offering pursuant to an effective registration
statement under the Securities Act and then will be timely registered under
the Exchange Act.
Certain transactions involving the Series 1 Issuer Trust could be deemed to
constitute direct or indirect prohibited transactions under ERISA and Section
4975 of the Code with respect to a Plan if the Series 1 Preferred Securities
were acquired with "plan assets" of such Plan and assets of the Series 1
Issuer Trust were deemed to be "plan assets" of Plans investing in the Series
1 Issuer Trust because such Securities failed to qualify as "publicly-offered
securities." For example, if the Corporation is a Party in Interest with
respect to an investing Plan (either directly or by reason of its ownership of
Bank of America, BAI, BANW and other subsidiaries), extensions of credit
between the Corporation and the Series 1 Issuer Trust (as represented by the
Series 1 Subordinated Debentures and the Series 1 Guarantee) would likely be
prohibited by Section 406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the
Code, unless exemptive relief were available under an applicable
administrative exemption (see below).
The DOL has issued five prohibited transaction class exemptions ("PTCEs")
that may provide exemptive relief for direct or indirect prohibited
transactions resulting from the purchase or holding of the Series 1 Preferred
Securities, even if assets of the Series 1 Issuer Trust were deemed to be
"plan assets" of Plans investing in the Trust (see above). Those class
exemptions are PTCE 96-23 (for certain transactions determined by in-house
asset managers), PTCE 95-60 (for certain transactions involving insurance
company general accounts), PTCE 91-38 (for certain transactions involving bank
collective investment funds), PTCE 90-1 (for certain transactions involving
insurance company separate accounts), and PTCE 84-14 (for certain transactions
determined by independent qualified asset managers).
Due to the complexity of these rules and the penalties that may be imposed
upon persons involved in non-exempt prohibited transactions, it is important
that fiduciaries or other persons considering purchasing the Series 1
Preferred Securities on behalf of or with "plan assets" of any Plan consult
with their counsel regarding the potential consequences under ERISA of the
acquisition and ownership of the Series 1 Preferred Securities. The
Corporation and certain of its bank or other affiliates may be Parties in
Interest with respect to certain Plans, such as Plans for which Bank of
America serves as trustee. Special caution should be exercised by any
fiduciary who proposes to cause a Plan to purchase the Series 1 Preferred
Securities.
S-26
<PAGE>
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 [insert names of Underwriters] (the "Underwriters"),
and the Underwriters have agreed to purchase from the Series 1 Issuer Trust,
the respective number of Series 1 Preferred Securities 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 Preferred Securities offered hereby if any of the
Series 1 Preferred Securities 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 PREFERRED
SECURITIES
UNDERWRITER -----------
<S> <C>
[insert names of Underwriters]................................
---
Total.....................................................
===
</TABLE>
The Underwriters propose initially to offer the Series 1 Preferred
Securities 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 Preferred Security. The
Underwriters may allow, and such dealers may reallow, a discount not in excess
of $. per Series 1 Preferred Security 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
Preferred Securities 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 Preferred Security 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 [ 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 Preferred
Securities, 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 Preferred
Securities offered in connection with the offering.
Prior to this offering, there has been no public market for the Series 1
Preferred Securities. The Underwriters have advised the Corporation that they
intend to make a market in the Series 1 Preferred Securities, 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 Preferred Securities.
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.
S-27
<PAGE>
BA Securities, Inc. ("BASI") is a wholly-owned subsidiary of the Corporation
and an affiliate of the Series 1 Issuer Trust. Accordingly, any offer and sale
of the Series 1 Preferred Securities 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 Preferred Securities will
execute a transaction in the Series 1 Preferred Securities 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 Preferred Securities. 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
Preferred Securities, 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-28
<PAGE>
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- -------------------------------------------------------------------------------
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-9
Ratio of Earnings to Fixed Charges........................................ S-10
Capitalization............................................................ S-11
Accounting Treatment...................................................... S-13
Certain Terms of Series 1 Preferred Securities............................ S-13
Certain Terms of Series 1 Subordinated Debentures......................... S-18
Certain Federal Income Tax Consequences................................... S-22
Certain ERISA Considerations.............................................. S-25
Underwriting.............................................................. S-27
Validity of Securities.................................................... S-28
<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................................................. 33
Relationship Among the Preferred Securities, the Corresponding Junior
Subordinated Debentures and the Guarantees............................... 36
Description of Debt Securities............................................ 38
Book-Entry Issuance....................................................... 48
Plan of Distribution...................................................... 50
Validity of Securities.................................................... 51
Experts................................................................... 51
</TABLE>
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PREFERRED SECURITIES
BANKAMERICA CAPITAL I
% CUMULATIVE SEMI-ANNUAL INCOME
PREFERRED SECURITIES,
SERIES 1
FULLY AND UNCONDITIONALLY GUARANTEED,
TO THE EXTENT DESCRIBED HEREIN, BY
BANKAMERICA CORPORATION
---------------
[LOGO OF BANKAMERICA CORPORATION APPEARS HERE]
---------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<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 DECEMBER 4, 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."
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(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.
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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. In addition, the Corporation's obligations under the
Junior Subordinated Debentures, the Junior Subordinated Indenture, the Trust
Agreements, the Guarantees and the Expense Agreements (as defined) provide a
full and unconditional guarantee of the Preferred 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 file reports under the Exchange Act with the
Commission.
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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, June 30, 1996 and September 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.
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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 or otherwise (and thus the ability of the
holders of the Preferred Securities to benefit indirectly from such
distribution) 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
non-member 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 non-
member 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.
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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, $207 million, $163
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
minimum 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
minimum capital requirements or if the payment of such capital distribution
would cause it to fail to meet any minimum capital requirements. Furthermore,
under certain circumstances, a holding company of a bank that fails to meet
its minimum 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.
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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 or incidental thereto
(such as registering the transfer of Trust Securities). 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) 622-
3530.
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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.
The Corporation is required by the Federal Reserve to maintain certain
levels of capital for bank regulatory purposes. On October 21, 1996, the
Federal Reserve announced that cumulative preferred securities having the
characteristics of the Preferred Securities could be included as Tier 1
capital for bank holding companies. Such Tier 1 capital treatment, together
with the Corporation's ability to deduct, for federal income tax purposes,
interest payable on the Corresponding Junior Subordinated Debentures, will
provide the Corporation with a more cost-effective means of obtaining capital
for bank regulatory purposes than if the Corporation were to issue preferred
stock.
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, which together with the applicable Prospectus Supplement will
describe the material terms thereof, 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, to each of which reference is hereby made. 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.
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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 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,
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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.
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.
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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 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.
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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 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.
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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.
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. Junior Subordinated
Debentures in denominations larger than the minimum denomination may be
redeemed in part but only in integral multiples of the minimum denomination.
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
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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 (including its subsidiaries) 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 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, (a) 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 Amount 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 and (b) where a consent under the Junior Subordinated
Indenture would require the consent of each holder of Corresponding Junior
Subordinated Debentures, no such consent shall be given by the Property
Trustee without the prior consent of each holder of Related Preferred
Securities.
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.
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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
(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 Amount 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 Amount 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 Amount 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.
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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 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,
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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.
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 of another series or Debt Securities of
another series. 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 but does not include the Junior
Subordinated Debentures, the Corporation's 8.07% Junior Subordinated
Deferrable Interest Debentures, Series A, the Corporation's 7.7% Junior
Subordinated Deferrable Interest Debentures, Series B 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
$17.1 billion of Senior Indebtedness outstanding.
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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.
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
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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.
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 except that the rights, duties and obligations of the Debenture
Trustee will be governed by the laws of the State of New York.
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
three indentures, one for Senior Debt, one for Subordinated Debt and one for
junior subordinated debt that ranks pari passu with the Junior Subordinated
Debentures, 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.
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Unless otherwise specified in the applicable Prospectus Supplement, if the
Corporation redeems the Corresponding Junior Subordinated Debentures, for so
long as the applicable Issuer Trust is the holder of all of such 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 (as defined below) in respect of such Issuer Trust has occurred and is
continuing, the Corporation will pay to such Issuer Trust Additional Sums (as
defined below) in respect of such Trust Securities.
The Corporation will also covenant in the Junior Subordinated Indenture 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.
"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 related 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.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then paid by an Issuer Trust on the
outstanding Preferred Securities and Common Securities of such 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.
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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, which
together with the applicable Prospectus Supplement will describe the material
terms thereof, 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, to each of which reference is hereby made. 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
in the name of the relevant Issuer Trust 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
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Distribution period will be computed by dividing the per annum rate by the
number of dates on which distributions are payable in a calendar year.
Distributions to which 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 (including its subsidiaries)
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
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
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Indenture, the proceeds from such repayment or redemption shall 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 on such terms as may be 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.
"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 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 per Trust Security as set forth
in the applicable Prospectus Supplement.
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."
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 The Depository Trust Company ("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
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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 the Liquidation Amount or an integral multiple of such Liquidation
Amount in excess thereof) of the Liquidation Amount of Preferred Securities of
a denomination larger than the Liquidation Amount per Preferred Security. 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 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
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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
Unless otherwise specified in the applicable Prospectus Supplement, 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.
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"; 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 Distribution, then the amounts payable directly by such
Issuer Trust on its Preferred Securities shall
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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).
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) 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 Amount 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.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under each
Trust Agreement 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 Issuer Trust 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 Issuer Trust 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
Amount 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.
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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 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
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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 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 either
clause (i) or clause (ii) such
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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
Trustee with respect to such Corresponding Junior Subordinated Debentures,
(ii) waive any past default that is waivable under Section 5.13 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.
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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 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
(whether upon redemption or otherwise), premium
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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 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 the Liquidation Amount of a
Preferred Security of such series 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
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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."
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, which together with the
applicable Prospectus Supplement will describe the material terms thereof,
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 to each of which reference is hereby made. The
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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.
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 Guarantees."
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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.
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
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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 case may be. The
Expense Agreement will constitute an unsecured obligation of the Corporation.
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
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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
pursuant to the terms of the Junior Subordinated Indenture for enforcement of
payment of the corresponding Junior Subordinated Debentures 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.
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.
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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 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 provisions of the Indentures, which
together with the applicable Prospectus Supplement will describe the material
terms thereof, do not purport to be complete and are qualified in their
entirety by reference to the provisions of the Indentures, to which reference
is hereby made. 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
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"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 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
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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."
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
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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 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.
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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)
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
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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
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
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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)
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
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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 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)
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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. (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
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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.
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
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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 issued in book-
entry form, unless otherwise specified in the Prospectus Supplement relating
to an offering of Preferred Securities, Junior Subordinated Debentures or Debt
Securities. In such case, 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 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
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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 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
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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.
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.
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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 James N. Roethe, Executive Vice President and General Counsel
of the Corporation. As of October 31, 1996, Mr. Roethe had a direct or
indirect interest in 2,264 shares of Common Stock of the Corporation and had
options to purchase an additional 53,000 shares of which 31,000 options will
be exercisable as of December 30, 1996. Orrick, Herrington & Sutcliffe LLP
will rely on the opinion of Richards, Layton & Finger as to matters of
Delaware law.
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.
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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
NASD fee.......................................................... 30,500
Blue Sky fees and expenses (including counsel fees)............... 100,000
Fees of rating agencies........................................... 182,500
Trustees' fee and expenses........................................ 26,500
Printing and engraving............................................ 170,000
Accounting services............................................... 150,000
Legal fees of Registrant's counsel................................ 380,000
Miscellaneous..................................................... 105,955
----------
Total............................................................. $1,600,000
==========
</TABLE>
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.
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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 (December 1996)
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 December , 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,
II, III, IV, V, VI, VII and VIII
4(x) Form of Preferred Security Certificate for BankAmerica Capital I, II,
III, IV, V, VI, VII and VIII (included as Exhibit E of Exhibit 4(w))
4(y) Form of Guarantee Agreement for BankAmerica Capital I, II, III, IV, V,
VI, VII and VIII
4(z) 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.
5(a) Opinion of Orrick, Herrington & Sutcliffe LLP
5(b) Opinion of General Counsel of BankAmerica Corporation
5(c) Opinion of Richards, Layton & Finger as to BankAmerica Capital I
5(d) Opinion of Richards, Layton & Finger as to BankAmerica Capital II
5(e) Opinion of Richards, Layton & Finger as to BankAmerica Capital III
5(f) Opinion of Richards, Layton & Finger as to BankAmerica Capital IV
5(g) Opinion of Richards, Layton & Finger as to BankAmerica Capital V
5(h) Opinion of Richards, Layton & Finger as to BankAmerica Capital VI
5(i) Opinion of Richards, Layton & Finger as to BankAmerica Capital VII
5(j) Opinion of Richards, Layton & Finger as to BankAmerica Capital VIII
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 Exhibits 5(a)
and 8)
23(c) Consent of General Counsel of BankAmerica Corporation (included in
Exhibit 5(b))
23(d) Consent of Richards, Layton & Finger (included in Exhibits 5(c) through
5(j))
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, the Amended and
Restated Trust Agreements of BankAmerica Capital I, II, III, IV, V, VI,
VII and VIII and the Guarantees for the benefit of the holders of
Preferred Securities of BankAmerica Capital I, II, III, IV, V, VI, VII
and VIII.
25(b) Form T-1 Statement of Eligibility of First Trust of California, National
Association, Trustee.
25(c) Form T-1 Statement of Eligibility of Chemical Trust Company of
California, Trustee.
</TABLE>
- --------
* Previously filed.
II-3
<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-4
<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-5
<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
Amendment No. 1 to 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 4th day of December, 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
Amendment No. 1 to Registration Statement has been signed below by the
following persons in the capacities and as of the date indicated.
<TABLE>
<S> <C>
SIGNATURE TITLE
--------- -----
</TABLE>
David A. Coulter* Chairman of the Board, President and
- --------------------------------- Chief Executive Officer (Principal
David A. Coulter Executive Officer)
Vice Chairman and Chief Financial
/s/ Michael E. O'Neill Officer (Principal Financial Officer)
- ---------------------------------
Michael E. O'Neill
Executive Vice President and Chief
/s/ John J. Higgins Accounting Officer (Principal
- --------------------------------- Accounting Officer)
John J. Higgins
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-6
<PAGE>
<TABLE>
<S> <C>
SIGNATURE TITLE
--------- -----
</TABLE>
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: December 4, 1996
II-7
<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 Amendment
No. 1 to 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 4th day of December, 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 Amendment
No. 1 to 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 4th day of December, 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 Amendment
No. 1 to 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 4th day of December, 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-8
<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 Amendment
No. 1 to 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 4th day of December, 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 Amendment
No. 1 to 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 4th day of December, 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 Amendment
No. 1 to 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 4th day of December, 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-9
<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 Amendment
No. 1 to 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 4th day of December, 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 Amendment
No. 1 to 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 4th day of December, 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-10
<PAGE>
Exhibit 1(a)
BankAmerica Capital ___
____% Cumulative [Quarterly] [Semi-Annual] Income Preferred Securities,
Series ___
(liquidation amount $___ per preferred security)
guaranteed to the extent set forth in the Guarantee by
BankAmerica Corporation
Underwriting Agreement
----------------------
____________, 199_
[Names of Co-Representatives]
As representatives of the several Underwriters
named in Schedule I hereto,
c/o ______________,
[Address].
Ladies and Gentlemen:
BankAmerica Capital ___, a business trust created under the Business
Trust Act of the State of Delaware (the "Delaware Business Trust Act") (the
"Trust"), and BankAmerica Corporation, a Delaware corporation, as depositor of
the Trust and as guarantor (the "Guarantor"), propose, subject to the terms and
conditions stated herein, that the Trust issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of ________
preferred securities (the "Securities") of ____% Cumulative [Quarterly] [Semi-
Annual] Income Preferred Securities, Series ___ (liquidation amount $____ per
preferred security) representing undivided beneficial interests in the assets of
the Trust, guaranteed by the Guarantor as to the payment of distributions, and
as to payments on liquidation or redemption, to the extent set forth in a
guarantee agreement (the "Guarantee") between the Guarantor and Bankers Trust
Company, as trustee (the "Guarantee Trustee"). The proceeds of the sale of the
Securities and an aggregate of _______ of its Common Securities (liquidation
amount [$1,000] [$25] per common security) (the "Common Securities") by the
Trust are to be invested in Junior Subordinated Deferrable Interest Debentures,
Series ___ (the "Subordinated Debentures") of the Guarantor, to be issued
pursuant to an Indenture (the "Indenture") between the Guarantor and Bankers
Trust Company, as Trustee (the "Debenture Trustee").
1. The Guarantor and the Trust jointly and severally represent and
warrant to, and agree with, each of the Underwriters that:
(a) The Guarantor and the Trust have filed with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities
Act of 1933, as amended (the "Securities Act"), a registration
statement (File No. 333-15559 and 333-15559-01 through -08) including a
prospectus relating to the Securities, the Guarantee and the
Subordinated Debentures (collectively, the "Registered Securities") and
such registration statement has become effective; the term
"Registration Statement" means the registration statement as amended to
the date of this Agreement; the term "Basic Prospectus" means the
prospectus included in the Registration Statement but does not include
the forms
<PAGE>
of prospectus supplement included in the Registration Statement; the
term "Preliminary Prospectus" means the Basic Prospectus together with
a preliminary prospectus supplement specifically relating to the
Registered Securities; the Guarantor and the Trust will file with the
Commission a prospectus supplement specifically relating to the
Registered Securities pursuant to Rule 424 under the Securities Act
(the "Prospectus Supplement"), together, if required, with the Basic
Prospectus (collectively, the "Prospectus"); as used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and
"Preliminary Prospectus" shall include in each case the material, if
any, incorporated by reference therein and the terms "amend",
"amendment" and "supplement" with respect to the Registration
Statement, any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), after the
effective date of the Registration Statement, or the date of any
Preliminary Prospectus or the Prospectus, as the case may be, and
deemed to be incorporated therein by reference;
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus
complied or will comply when so filed in all material respects with the
Exchange Act and the rules and regulations thereunder, (ii) each part
of the Registration Statement (including the documents incorporated by
reference therein), when such part became effective or was filed, as
the case may be, complied in all material respects with the Securities
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the respective rules and regulations thereunder and did not contain any
untrue statements of material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement at the date of
the Prospectus Supplement and at the Time of Delivery will meet the
requirements set forth in Rule 415(a)(1)(x) under the Securities Act
and will comply in all other material respects with said rule, (iv)
each Preliminary Prospectus, if any, filed pursuant to Rule 424 under
the Securities Act will comply when so filed in all material respects
with the Securities Act, and the rules and regulations thereunder, (v)
the Registration Statement, the Prospectus, the applicable Amended and
Restated Trust Agreement (the "Trust Agreement") between the Guarantor
and the trustees named therein (the "Trustees") relating to the Trust,
the Guarantee and the Indenture comply and, as amended or supplemented,
will comply in all material respects with the Securities Act and the
Trust Indenture Act and the respective rules and regulations
thereunder, (vi) at the date of the Prospectus Supplement, at the date
of any further amendment to the Registration Statement or supplement to
the Prospectus and at the Time of Delivery, the Registration Statement
and the Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, except that
this representation and warranty does not apply to (a) that part of the
Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act
of the Trustees and the Guarantee Trustee or (b) statements in or
omissions from any such documents based upon information furnished to
the Guarantor or the Trust in writing by or in any document prepared by
any Underwriter or by the Trustees expressly for use therein, (vii) the
Guarantor and the Trust have furnished to you such information,
financial and other, regarding the Guarantor and the Trust as is
expected to be included in the Prospectus Supplement and (viii) the
Company has complied and will comply with the provisions of that
certain Florida act relating to the
2
<PAGE>
disclosure of doing business with Cuba codified as Section 517.075 of
the Florida statutes and the rules and regulations thereunder or is
exempt therefrom;
(c) Except as set forth or contemplated in the Prospectus, there
has been no material adverse change in the condition (financial or
otherwise), earnings, business or properties of the Guarantor and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in the ordinary course of business, since the date of the
most recent financial statements included or incorporated in the
Prospectus, as amended or supplemented as of the Time of Delivery;
(d) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Delaware Business
Trust Act with the power and authority to own its properties and
conduct its business as described in the Prospectus, and the Trust has
conducted no business to date other than as contemplated by this
Agreement, and it will conduct no business in the future that would be
inconsistent with the Trust Agreement and the description of the Trust
set forth in the Prospectus; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Trust
Agreement and the agreements and instruments contemplated by the Trust
Agreement; the Trust has no liabilities or obligations other than those
arising out of the transactions contemplated by this Agreement and the
Trust Agreement and described in the Prospectus; based on expected
operations and current law, the Trust is not and will not be classified
as an association taxable as a corporation for United States federal
income tax purposes; and the Trust is not a party to or subject to any
action, suit or proceeding of any nature;
(e) The Securities have been duly and validly authorized by the
Trust, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable undivided beneficial interests in the assets of the
Trust and will conform to the description of the Securities contained
in the Prospectus; the Trust Agreement, the Indenture and the Guarantee
have been duly qualified under the Trust Indenture Act; the issuance of
the Securities is not subject to preemptive or other similar rights;
the Securities will have the rights set forth in the Trust Agreement,
and the terms of the Securities are valid and binding on the Trust; the
holders of the Securities (the "Securityholders") will be entitled to
the same limitation of personal liability extended to stockholders of
private corporations for profit organized under the General Corporation
Law of the State of Delaware;
(f) The Common Securities of the Trust have been duly and
validly authorized by the Trust and upon delivery by the Trust to the
Guarantor against payment therefor as described in the Prospectus, will
be duly and validly issued and fully paid and non-assessable undivided
beneficial interests in the assets of the Trust and will conform in all
material respects to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Time of Delivery, all of
the issued and outstanding Common Securities of the Trust will be
directly owned by the Guarantor free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
(g) The Guarantee, the Subordinated Debentures, the Trust
Agreement, the Indenture
3
<PAGE>
and the Agreement as to Expenses and Liabilities between the Guarantor
and the Trust (the "Expense Agreement") (the Guarantee, the
Subordinated Debentures, the Trust Agreement, the Indenture and the
Expense Agreement being collectively referred to as the "Guarantor
Agreements") have each been duly authorized and when validly executed
and delivered by the Guarantor and, in the case of the Guarantee, by
the Guarantee Trustee, in the case of the Trust Agreement, by the
Trustees and, in the case of the Indenture, by the Debenture Trustee,
will constitute valid and legally binding obligations of the Guarantor,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether enforcement is sought in a proceeding
at law or in equity); the Subordinated Debentures are entitled to the
benefits of the Indenture; and the Guarantor Agreements will conform to
the descriptions thereof in the Prospectus;
(h) Prior to the date hereof, neither the Guarantor nor any of
its affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Guarantor in connection with the offering of the Securities; and
(i) The Trust is not, and after giving effect to the offering
and sale of the Securities will not be, an "investment company", or an
entity "controlled" by an "investment company", as such terms are
defined in the United States Investment Company Act of 1940, as amended
(the "Investment Company Act").
2. Subject to the terms and conditions herein set forth, the Trust and
the Guarantor agree that the Trust shall issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Trust, at a purchase price of $___ per Security, the number of
Securities set forth opposite the name of such Underwriter in Schedule I hereto.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
issued by the Trust to purchase the Subordinated Debentures of the Guarantor,
the Guarantor hereby agrees to pay at the Time of Delivery to
____________________, for the accounts of the several Underwriters, an amount
equal to $___ per Security for the Securities to be delivered at the Time of
Delivery. Alternatively, as a matter of convenience, ____________________ may
deduct such amount from the purchase price of the Securities and in such event
the Guarantor shall be deemed to have paid the same.
3. Upon the authorization by you of the release of the Securities,
the several Underwriters propose to offer the Securities for sale upon the terms
and conditions set forth in the Prospectus. [In connection with such offering,
each underwriter severally agrees that it will comply with Rule 2720 of the
Rules of Conduct of the National Association of Securities Dealers, Inc. and
will not execute a transaction in the Securities in a discretionary account
without the prior written specific approval of such Underwriter's customer.]
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ____________________ may request upon at least forty-eight hours' prior
notice to the Trust, shall be delivered by or on behalf of the Trust to
____________________, through the facilities of the Depository Trust Company,
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the
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purchase price therefor by certified or official bank check or checks or
fedwire, payable to the order of the Trust in Federal (same day) funds. The
Trust will cause the certificates representing the Securities to be made
available for checking and packaging at least twenty-four hours prior to the
Time of Delivery (as defined below) at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of such delivery and
payment shall be 10:30 a.m., New York City time, on ____________, 199__ or such
other time and date as __________ and the Trust may agree upon in writing. Such
time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(j) hereof, will be delivered at such time and
date at the offices of the Guarantor, 555 California Street, San Francisco,
California 94104 (the "Closing Location"), and the Securities will be delivered
at the Designated Office, all at the Time of Delivery. A meeting will be held at
the Closing Location at 4:00 p.m., New York City time, on the New York Business
Day next preceding the Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of this Section 4,
"New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. The Guarantor and the Trust jointly and severally agree with
each of the Underwriters:
(a) The Guarantor and the Trust will cause the Prospectus
Supplement and, if required, the Basic Prospectus to be filed pursuant
to Rule 424 under the Securities Act and, prior to the termination of
the offering of the Securities, will promptly advise you (i) when any
amendment to the Registration Statement shall have become effective or
any further supplement to the Prospectus shall have been filed, (ii) of
any request by the Commission for any amendment of the Registration
Statement or further supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv)
of the receipt by the Guarantor or the Trust of any notification with
respect to the suspension of the qualification of the Registered
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. Prior to the
termination of the offering of the Securities, neither the Guarantor
nor the Trust will file any amendment to the Registration Statement or
any further supplement to the Prospectus unless the Guarantor or the
Trust has furnished you a copy for review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object. The Guarantor and the Trust will each use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Securities or the Subordinated
Debentures issuable upon exchange of the Securities, for offering and
sale under the securities laws of such jurisdictions as you may request
and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the
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<PAGE>
Securities, provided that in connection therewith neither the Guarantor
nor the Trust shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus in
such quantities as you may from time to time reasonably request, and,
if at any time when a prospectus relating to the Securities is required
to be delivered under the Securities Act, any event shall have occurred
as a result of which the Prospectus as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities
Act or the Exchange Act, to prepare and file such document and furnish
without charge to each Underwriter as many copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to
the Prospectus which will correct such statement or omission or effect
such compliance;
(d) To make generally available to its securityholders and to
you as soon as practicable, but in any event not later than 45 days
after the end of the 12-month period beginning at the end of the fiscal
quarter of the Guarantor during which the filing of the Prospectus
pursuant to Rule 424 under the Securities Act first occurs (except not
later than 90 days if such filing date is in the Guarantor's last
fiscal quarter), an earnings statement of the Guarantor and its
consolidated subsidiaries which will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act;
(e) During the period beginning from the date hereof and
continuing until (but not including) ___________, ____, not to offer,
sell contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Guarantor, the Trust or any other
trust the common securities of which are held by the Guarantor that are
substantially similar to the Securities or any other beneficial
interest in the assets of the Trust without your prior written consent;
(f) Not to have the Trust be or become, at any time prior to the
expiration of three years after the Time of Delivery, an open-end
investment company, unit investment trust, closed-end investment
company or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act;
(g) To issue the Guarantee and the Subordinated Debentures
concurrently with the issue and sale of the Securities as contemplated
herein; and
[(h) To use its best efforts to list, subject to notice of
issuance, the Securities on the New York Stock Exchange].
6. The Guarantor and the Trust jointly and severally covenant and
agree with the several
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Underwriters that the Guarantor and the Trust will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Guarantor's or the
Trust's counsel and accountants in connection with the registration of the
Registered Securities under the Securities Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and any amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) all expenses in connection with the qualification
of the Securities and the Subordinated Debentures issuable upon exchange of the
Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with the Blue Sky and legal investment surveys; (iii) any fees charged by
securities rating services for rating the Securities; (iv) all fees and expenses
in connection with listing the Securities on the New York Stock Exchange, the
filing fees incident to, and the fees and disbursements of counsel for the
Guarantor and the Trust in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Securities (v) the cost of preparing the Securities and the Subordinated
Debentures; (vi) the fees and expenses of the Trustees, the Guarantee Trustee
and the Debenture Trustee and any agent of the Trustees, the Guarantee Trustee
and the Debenture Trustee and the fees and disbursements of counsel for the
Trustees in connection with the Trust Agreement and the Securities, counsel for
the Guarantee Trustee in connection with the Guarantee and counsel for the
Debenture Trustee in connection with the Indenture and the Subordinated
Debentures; and (vii) all other costs and expenses incident to the performance
of their obligations hereunder which are not otherwise specifically provided for
in this Section. It is understood, however, that, except as provided in this
Section, and Sections 8 and 11 hereof, the Underwriters will pay all of their
own costs and expenses, including the fees of their counsel, transfer taxes on
resale of any of the Securities by them, and any advertising expenses connected
with any offers they may make.
7. The obligations of the Underwriters to purchase the Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Guarantor and the Trust contained herein as of the date hereof and the Time
of Delivery, to the accuracy of the statements of the Guarantor and the Trust
made in any certificates pursuant to the provisions hereof, to the performance
by each of the Guarantor and the Trust of its obligations hereunder and to the
following additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall have
been instituted or threatened.
(b) You shall have received at the Time of Delivery the opinion of counsel
for the Guarantor and the Trust acceptable to you, dated the Time of
Delivery, to the effect that:
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(i) the Guarantor has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and corporate authority to own its properties and
conduct its business as described in the Prospectus and is duly registered as
a bank holding company under the Bank Holding Company Act of 1956, as
amended;
(ii) Bank of America National Trust and Savings Association (the
"Bank") holds a valid Certificate of Authority from the Comptroller of the
Currency of the United States of America to do business as a national banking
association under the laws of the United States and has full corporate power
and authority to own its properties and conduct its business as described in
the Registration Statement or Prospectus; and all the outstanding shares of
capital stock of the Bank have been duly and validly authorized and issued,
are fully paid and (except as provided in 12 U.S.C. (S) 55) nonassessable,
and are directly owned by the Guarantor free and clear of liens and
encumbrances;
(iii) to the best knowledge of such counsel, (a) there is no
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Guarantor or any of its subsidiaries of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Prospectus, and (b) there is no franchise, contract or other document which
is known to such counsel of a character required to be described in the
Registration Statement or Prospectus, which is not described as required;
(iv) the Registration Statement has become effective under the
Securities Act; to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or threatened; and the
Registration Statement, the Prospectus and each amendment thereof or
supplement thereto and each document incorporated by reference therein (other
than the Statements of Eligibility and Qualification (Forms T-1) under the
Trust Indenture Act of the trustees named therein and the financial
statements, schedules and other financial and statistical information
contained or incorporated therein, or that should have been so contained or
incorporated, as to which such counsel need express no opinion), as of their
respective effective or issue dates, complied as to form in all material
respects with the applicable requirements of the Securities Act and the
Exchange Act and the respective rules thereunder (in passing on the form of
such Registration Statement, counsel may assume the correctness and
completeness of the statements made therein)
(v) this Agreement has been duly authorized, executed and delivered
by the Guarantor and the Trust;
(vi) the issuance by the Guarantor of the Guarantee and the
Subordinated Debentures, the compliance by the Guarantor with all of the
provisions of this Agreement, the execution, delivery and performance by the
Guarantor of the Guarantor Agreements and the consummation of the
transactions herein and therein contemplated will not conflict with, result
in a breach of, or constitute a default under the certificate of
incorporation or by-laws of the
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Guarantor or, to the best knowledge of such counsel, any indenture or other
agreement or instrument to which the Guarantor or the Bank is a party or
bound, or any order or regulation of any court, regulatory body,
administrative agency, governmental body or arbitrator having jurisdiction
over the Guarantor or the Bank which in the case of any indenture, agreement,
instrument or order, would have a material adverse effect on the holders of
the Securities or the financial condition, earnings, business or properties
of the Guarantor and its subsidiaries, taken as one enterprise;
(vii) the Guarantor Agreements have each been duly authorized,
executed and delivered by the Guarantor and/or the Trust, as the case may be,
and constitute valid and legally binding obligations of the Guarantor and/or
the Trust, as the case may be, enforceable in accordance with their
respective terms, subject to qualifications to be set forth in the opinion
delivered at the Time of Delivery which shall be acceptable to you; the
Subordinated Debentures are entitled to the benefits provided by the
Indenture; the Trust Agreement, the Indenture and the Guarantee have been
duly qualified under the Trust Indenture Act;
(viii) the Trust is not, and after giving effect to the offering
and sale of the Securities will not be, an "investment company", or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act; and
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required of the Guarantor for the consummation
of the transactions contemplated in this Agreement or any of the Guarantor
Agreements, except the registration under the Securities Act and the Exchange
Act of the Registered Securities and the Securities, respectively, the
qualification of the Trust Agreement, the Indenture and the Guarantee under
the Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters.
In addition, such counsel shall state that nothing has come to the attention
of such counsel to cause such counsel to believe that the Registration
Statement, or any amendment thereof, at the time it became effective contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of this Agreement and as of
the Time of Delivery contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need not make any comment
with respect to the accuracy, completeness or fairness of the financial
statements, schedules and other financial and statistical information contained
therein or incorporated therein, or that should have been so contained or
incorporated, or with respect to the Statements of Eligibility and Qualification
of the trustees named in the Registration Statement on their Forms T-1).
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of California
or the United States, to the extent such counsel shall deem proper and specify
in such opinion, upon the opinion of other counsel of good
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<PAGE>
standing whom such counsel believes to be reliable and who are satisfactory to
counsel for the Underwriters; and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the Guarantor
and public officials.
(c) You shall have received at the Time of Delivery the opinion of
Sullivan & Cromwell, counsel for the Underwriters (or other counsel for the
Underwriters acceptable to you), dated the Time of Delivery, with respect to
such matters as you may reasonably require, and the Guarantor and the Trust
shall have furnished to such counsel such documents as they request for the
purposes of enabling them to pass upon such matters.
(d) The Guarantor and the Trust shall have furnished to you certificates
of the Guarantor and the Trust, signed, in the case of the Guarantor, by the
Chairman of the Board, the Chief Executive Officer, President, a Vice
Chairman of the Board, a Vice Chairman or the Chief Financial Officer of the
Guarantor and the Treasurer or an Assistant Treasurer of the Guarantor (or,
in either such case, another officer or officers acceptable to you), and in
the case of the Trust, by an Administrative Trustee , dated the Time of
Delivery, to the effect that the signatories of such certificate have
carefully examined the Registration Statement, the Prospectus and this
Agreement and that:
(i) the representations and warranties of the Guarantor and the
Trust in this Agreement are true and correct in all material respects on and
as at the Time of Delivery with the same effect as if made at the Time of
Delivery and each of the Guarantor and the Trust has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Time of Delivery;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the Guarantor's or the Trust's knowledge, as the case may
be, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change, nor
any presently known and existing development that the Guarantor or the Trust,
as the case may be, expects to result in a material adverse change, in the
financial condition, earnings, business or properties of the Guarantor and
its subsidiaries considered as one enterprise or the Trust, as the case may
be, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus.
(e) You shall have received at the Time of Delivery a letter from Ernst
& Young, independent public accountants (or other independent public
accountants acceptable to you), dated the Time of Delivery, in form and
substance satisfactory to you containing statements and information of the
type ordinarily included in accountants "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference in the Registration Statement and
the Prospectus.
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(f) There shall not have been any change or decrease specified in the
letter referred to in paragraph (e) of this Section 7 or, subsequent to the
date of this Agreement, there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Guarantor and its subsidiaries or the Trust, as the case
may be, the effect of which, in any case referred to in this paragraph (f),
is, in your judgment, so material and adverse as to make it impractical or
inadvisable to proceed with the delivery or offering of the Securities as
contemplated by the Prospectus.
(g) You shall have received at the Time of Delivery the opinion of
Richards, Layton & Finger, Delaware Counsel of the Trust, dated the Time of
Delivery, to the effect that:
(i) The Trust has been duly created and is validly existing as a
business trust in good standing under the Delaware Business Trust Act and,
under the Trust Agreement and the Delaware Business Trust Act, has the trust
power and authority to own its properties and conduct its business, all as
described in the Prospectus, and all filings required under the laws of the
State of Delaware with respect to the creation and valid existence of the
Trust as a business trust have been made;
(ii) The Trust Agreement constitutes a valid and binding obligation
of the Guarantor and the Trustees, and is enforceable against the Guarantor
and the Trustees, in accordance with its terms and the terms of the
Securities as set forth in the Trust Agreement are valid and binding
obligations of the Trust in accordance with the terms of the Trust Agreement,
all subject to the effect upon the Trust Agreement of (A) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (B) principles of equity,
including applicable law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law), and (C) the
effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution;
(iii) Under the Trust Agreement and the Delaware Business Trust
Act, the Trust has the trust power and authority to (a) execute and deliver
this Agreement and to perform its obligations under this Agreement, and (b)
issue and perform its obligations under the Securities and the Common
Securities;
(iv) Under the Trust Agreement and the Delaware Business Trust Act,
the execution and delivery by the Trust of this Agreement and the performance
by the Trust of its obligations thereunder have been duly authorized by all
necessary action on the part of the Trust;
(v) The Securities have been duly and validly authorized by the
Trust Agreement, and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and, subject to the
qualifications set forth herein, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust; under the Trust Agreement
and the Delaware Business Trust Act, the issuance of the Securities is not
subject to preemptive or other similar rights; the Securities will have the
rights set forth in the Trust Agreement; the Securityholders, as beneficial
owners of the Trust, will be entitled to the same limitation of
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personal liability extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of Delaware;
provided that such counsel may note that the Securityholders may be
obligated, pursuant to the Trust Agreement, to (a) provide indemnity and/or
security in connection with and pay taxes or governmental charges arising
from transfers or exchanges of Preferred Securities Certificates (as defined
in the Trust Agreement) and the issuance of replacement Preferred Securities
Certificates and (b) provide security and indemnity in connection with
requests of or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust Agreement;
(vi) The Common Securities of the Trust have been duly and validly
authorized by the Trust Agreement; under the Trust Agreement and the Delaware
Business Trust Act, the issuance of the Common Securities is not subject to
preemptive or other similar rights;
(vii) The issue and sale of the Securities and the Common
Securities by the Trust, the execution and delivery of this Agreement by the
Trust, the compliance by the Trust with all of the provisions of the
Securities, the Trust Agreement and this Agreement, the purchase by the Trust
of the Subordinated Debentures and the consummation of the transactions
herein and therein contemplated do not violate (A) the Trust Agreement or the
Certificate of Trust of the Trust, or (B) any applicable Delaware law, rule
or regulation;
(viii) No authorization, approval, consent or order of any Delaware
court or Delaware governmental authority or Delaware agency is required to be
obtained by the Trust in connection with the issuance and sale of the
Securities and the Common Securities; and
(ix) Assuming that the Trust derives no income from or connected
with sources within the State of Delaware and has no assets, activities
(other than having a Delaware trustee as required by the Delaware Business
Trust Act and filing documents with the Delaware Secretary of State) or
employees in the State of Delaware and that the Trust is treated as a grantor
trust for federal income tax purposes, the Securityholders (other than those
holders of the Securities who reside or are domiciled in the State of
Delaware) will have no liability for income taxes imposed by the State of
Delaware solely as a result of their participation in the Trust, and the
Trust will not be liable for any income tax imposed by the State of Delaware.
(h) Orrick, Herrington & Sutcliffe LLP, tax counsel for the Guarantor
and the Trust, shall have furnished to you their written opinion, dated the
Time of Delivery, in form and substance satisfactory to you, to the effect
that such firm confirms its opinion set forth in the Prospectus Supplement
under the caption "Certain Federal Income Tax Consequences."
(i) Prior to the Time of Delivery, the Guarantor and the Trust shall
have furnished to you such further information, certificates and documents as
you may reasonably request.
If any of the conditions specified in this Section 7 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to you and your counsel, this Agreement and all obligations of you
hereunder may
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be cancelled at, or at any time prior to, the Time of Delivery by you. Notice
of such cancellation shall be given to the Guarantor and the Trust in writing or
by telephone or telegraph confirmed in writing.
7A. This Agreement shall be subject to termination in your absolute
discretion, by notice given to the Guarantor and the Trust prior to delivery of
and payment for the Securities, if prior to such time (i) trading in securities
generally on the New York Stock Exchange shall have been suspended or materially
limited, (ii) a commercial banking moratorium shall have been declared by either
Federal or New York or California State authorities, or (iii) there shall have
occurred any outbreak or material escalation of hostilities or other calamity or
crisis, the effect of which on the United States or international markets is
such as to make it, in your reasonable judgment, impracticable to market the
Securities or enforce contracts for the sale of the Securities.
[7B. The obligations of the Guarantor to sell the Securities to the
Underwriters shall be subject to the condition that you, on behalf of the
several Underwriters, shall have delivered to the New York Stock Exchange such
letter as the New York Stock Exchange may require in connection with the listing
of the Securities to the effect that the Underwriter will sell lots of 100 or
more Securities to a minimum of 400 beneficial holders.]
8. (a) The Guarantor and the Trust jointly and severally agree to indemnify
and hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Securities Act or the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
-------- -------
(i) neither the Guarantor nor the Trust will be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Guarantor or the Trust by or on behalf of any
Underwriter through you specifically for use in connection with the preparation
thereof, or the Statements of Eligibility and Qualification (Forms T-1) under
the Trust Indenture Act of any of the trustees named therein, and (ii) such
indemnity with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof, if such person did not receive a
copy of the Prospectus (or the Prospectus as amended or supplemented), excluding
documents incorporated therein by reference, at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of a
material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented). This indemnity
agreement will be in addition to any liability which the Guarantor or the Trust
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Guarantor and the Trust, each of its directors or administrative trustees, as
the case may be, each of the Guarantor's officers who signs the Registration
Statement, and each person who controls the Guarantor or the Trust within the
meaning of either the Securities Act or the Exchange Act, to the
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same extent as the foregoing indemnity from the Guarantor and the Trust to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Guarantor or the Trust by or on behalf of such
Underwriter through you specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided,
--------
however, if the defendants in any such action include both the indemnified party
- -------
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by you in the case of subparagraph (a), representing
the indemnified parties who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 8 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Guarantor and the Trust and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) to which the Guarantor or the Trust
and one or more of the Underwriters may be subject in such proportion so that
the Underwriters are responsible for that portion represented by the percentage
that the aggregate underwriting discount or commission appearing on the cover
page of the Prospectus Supplement bears to the aggregate public offering price
appearing thereon and the Guarantor and the Trust are jointly and severally
responsible for the balance; provided, however, that
-------- -------
14
<PAGE>
(y) in no case shall any Underwriter (except as may be provided in any agreement
among underwriters relating to the offering of the Securities) be responsible
for any amount in excess of the underwriting discount applicable to the
Securities purchased by such Underwriter hereunder and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 8,
each person who controls an Underwriter within the meaning of the Securities Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Guarantor or the Trust within the meaning of either the
Securities Act or the Exchange Act, each officer of the Guarantor who shall have
signed the Registration Statement and each director of the Guarantor or each
Administrative Trustee of the Trust shall have the same rights to contribution
as the Guarantor and the Trust, subject in each case to clause (y) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d). This notice requirement shall be deemed satisfied by the
delivery of the notice contemplated by the first sentence of subparagraph (c) of
this Section 8.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by
any Underwriter you do not arrange for the purchase of such Securities, then the
Guarantor and the Trust shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Guarantor or the Trust that you
have so arranged for the purchase of such Securities, or the Guarantor and the
Trust notify you that they have so arranged for the purchase of such Securities,
you or the Guarantor and the Trust shall have the right to postpone the Time of
Delivery for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus, or in any other documents or arrangements, and the Guarantor and the
Trust jointly and severally agree to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriters" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor
and the Trust as provided in subsection (a) above, the aggregate number of such
Securities which remains unpurchased does not exceed one-tenth of the aggregate
number of all the Securities, then the Guarantor and the Trust shall have the
right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share (based
on the number of Securities which such Underwriter agreed to purchase hereunder)
of the Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
15
<PAGE>
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Guarantor
and the Trust as provided in subsection (a) above, the aggregate number of
Securities which remains unpurchased exceeds one-tenth of the aggregate number
of all the Securities, or if the Guarantor and the Trust shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Securities of a defaulting Underwriter or Underwriters, then this
Agreement shall thereupon terminate, without liability on the part of any non-
defaulting Underwriter or the Guarantor and the Trust, except for the expenses
to be borne by the Guarantor and the Trust and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Guarantor and the Trust and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Guarantor and the Trust, or any officer or director or controlling person of the
Guarantor or the Trust, and shall survive delivery of and payment for the
Securities.
11. If the sale of the Securities provided for in this Agreement is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 or 7A hereof is not satisfied or because of any refusal,
inability or failure on the part of the Guarantor or the Trust to perform any
agreement in this Agreement or comply with any provision in this Agreement other
than by reason of a default by any of the Underwriters, the Guarantor and the
Trust will jointly and severally reimburse the Underwriters severally upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been reasonably incurred by them in
connection with the proposed purchase and sale of the Securities and shall have
no further obligations to the Underwriters with respect thereto. In no event
shall the Guarantor or the Trust be liable to the Underwriters for loss of
anticipated profits from the transactions contemplated by this Agreement.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ____________________ on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of
____________________, ______________________________________, Attention:
_______________________; and if to the Guarantor or the Trust shall be delivered
or sent by mail or facsimile transmission to the address of the Guarantor set
forth in the Prospectus, Attention: Secretary or Administrative Trustee,
respectively; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such
16
<PAGE>
Questionnaire, which address will be supplied to the Guarantor and the Trust by
you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Guarantor and the Trust and, to the extent provided in
Sections 8 and 10 hereof, the officers and directors of the Guarantor, the
administrative trustees of the Trust and each person who controls the Guarantor
or the Trust or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement.
15. This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
17
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us ___ counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the
Guarantor and the Trust. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Guarantor for examination upon request, but without warranty on your part as
to the authority of the signers thereof.
Very truly yours,
BankAmerica Capital
-------
By: BankAmerica Corporation, as Depositor
By:
-------------------------------
Name:
Title:
BankAmerica Corporation
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
By:
--------------------------------
( )
---------------------
On behalf of each of the Underwriters
18
<PAGE>
SCHEDULE I
Number
of
Securities
to be
Underwriter Purchased
---------------- ---------
Total.......................................
19
<PAGE>
Exhibit 1(b)
UNDERWRITING AGREEMENT
___________, 199_
BankAmerica Corporation
Bank of America Center
555 California Street
San Francisco, California 94104
Ladies and Gentlemen:
We understand that BankAmerica Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell $__________ aggregate principal amount of
[Insert Title of Debt Securities (the "Offered Debt Securities")] [___ shares of
Preferred Stock, Series __ (the "Offered Preferred Stock")][____ shares of
Common Stock, par value $1.5625 per share (the "Offered Common Stock")] [___
warrants to purchase [Insert Title of Securities] (the "Offered Warrants")] [___
[Insert Title of Currency Warrants] (the "Offered Currency Warrants")] [to be
sold in units (the "Offered Units") each consisting of the amount of [Offered
Debt Securities] [Offered Preferred Stock] [Offered Common Stock] [Offered
Warrants] [Offered Currency Warrants] set forth in Schedule I hereto] (the
"Offered Securities") covered by Registration Statement No. 333-__________, as
amended. The specific terms of the Offered Securities are set forth in Schedule
I hereto. Subject to the terms and conditions set forth herein and incorporated
by reference herein, the Company hereby agrees to sell and the underwriter or
underwriters named on Schedule II hereto (such underwriter or underwriters being
herein called the "Underwriters") agree to purchase, severally and not jointly,
the amounts of such Offered Securities set forth opposite such Underwriter's
name on Schedule II hereto at a purchase price equal to [________% of their
principal amount plus accrued interest, if any, from __________, 199_ to the
date of payment and delivery and accrued amortization of original issue
discount, if any, from __________, 199_ to the date of payment and delivery]
[__________].
The Underwriters will pay for the Offered Securities at the office of
__________, __________, __________, __________, at __:00 _.m. (__________ time)
on __________, 199_ (the "Closing Date") or at such other time on the same or
such other date, not later than __________, 199_ as shall be mutually agreed
upon, upon confirmation of delivery to the Underwriters in The City of New York,
or such other place as shall be mutually agreed upon, of certificates for the
Offered Securities in such names and
<PAGE>
denominations as the Underwriters request. Payment shall be made in the
following funds: ____________________________________________________________
The Company agrees to have the Offered Securities available for
inspection, checking and packaging by the Underwriters in __________, not later
than __:00 _.M.
(__________ time) on the business day next preceding the Closing Date.
[The Company agrees that it will not offer, sell or contract to sell or
otherwise dispose of, directly or indirectly, or announce the offering of any of
the Company's [debt securities] [preferred stock] [debt securities warrants]
[preferred stock warrants] [common stock warrants] [currency warrants]
[securities convertible into or exchangeable for the Company's common stock]
[securities ranking on a parity with the Offered Securities] [with substantially
similar terms to the Offered Securities] [common stock] until
[___________________]].
[The Representatives, as defined below, have received at the time this
Agreement is executed a letter from Ernst & Young LLP, independent public
accountants (or other independent accountants acceptable to the
Representatives), dated the date of this Agreement, as described in Section 5(e)
of the Underwriting Agreement Standard Provisions (December 1996), incorporated
in this Agreement.]
[Upon request of the Company, ___________________ will promptly advise
the Company as to whether, to its knowledge, the offering of the Offered
Securities as contemplated by this Agreement has been completed.]
[__________________________ will promptly advise the Company as to when, based
on information provided to it by the Underwriters, the offering of the Offered
Securities as contemplated by this Agreement has been completed.]
[If any one or more Underwriters shall fail to purchase and pay for any
of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
nondefaulting Underwriters shall be obligated severally to take up and pay for
(in the respective proportions which the amount of Offered Securities set forth
opposite their names in Schedule II hereto bear to the aggregate amount of
Offered Securities set forth opposite the names of all the nondefaulting
Underwriters) the Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Offered Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Offered Securities set forth in Schedule II hereto, the nondefaulting
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the
2
<PAGE>
Offered Securities, and if such nondefaulting Underwriters do not purchase all
the Offered Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this paragraph, the Closing Date shall be postponed
for such period, not exceeding seven days, as the nondefaulting Underwriters
shall determine in order that the required changes in the Registration Statement
and the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this paragraph shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.]
All the provisions contained in the document entitled BankAmerica
Corporation Underwriting Agreement Standard Provisions (December 1996), a copy
of which we have previously received, are herein incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein. For purposes of
the Standard Provisions, the term Representatives shall mean
_____________________________.
Notices shall be sent to the Underwriters at the following address:
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________________________________________.
This Agreement will be governed by and construed in accordance with the
laws of the State of __________.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
3
<PAGE>
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us.
Very truly yours,
(Signed on behalf of the
Underwriters)*
By:______________________________
Title:
Accepted:
BANKAMERICA CORPORATION
By:__________________________________
Title:
Dated: __________, 199_
* To be executed by all the Underwriters listed on Schedule II hereto or by
one or more of such Underwriters on behalf of itself (themselves) and the
other Underwriters listed on Schedule II.
4
<PAGE>
Schedule I
Underwriting Agreement dated ________ __, 19__
Debt Securities
Title:
Principal amount and currency:
Purchase price (include accrued interest and
amortization, if any):
Sinking fund provisions:
Redemption provisions:
Conversion price:
Interest Rate:
Date of Maturity:
Other provisions:
Preferred Stock
Title:
Number:
Purchase price (include accrued dividends, if
any):
Liquidation value:
Dividend:
Conversion rate:
Sinking fund provisions:
Redemption Provisions:
Other provisions:
Warrants
Title:
<PAGE>
Number:
Securities issuable upon exercise
of one Warrant:
Warrant exercise price
and currency:
Purchase Price and Currency:
Date after which Warrants
are exercisable:
Expiration Date:
Warrant Agent:
Other Provisions:
Currency Warrants
Title:
Number:
Designated currency:
Purchase price and currency:
Date after which Currency Warrants are
exercisable:
Expiration date:
Currency Warrant agent:
Other provisions:
Units
Title and principal amount of Debt Securities or title and number of shares
of Preferred Stock and title and number of Warrants, and Currency Warrants
included in one Unit:
Purchase price and currency:
Detachable date:
Other provisions:
<PAGE>
Schedule II
Name Principal Amount or Number
- ---- --------------------------
-----------------
Total $
=================
<PAGE>
Exhibit 1(c)
December 1996
BANKAMERICA CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS FOR SENIOR DEBT SECURITIES,
SUBORDINATED DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY PREFERRED STOCK, COMMON STOCK,
WARRANTS TO PURCHASE DEBT SECURITIES,
WARRANTS TO PURCHASE COMMON STOCK,
WARRANTS TO PURCHASE PREFERRED STOCK
AND CURRENCY WARRANTS
(December 1996)
<PAGE>
From time to time, BankAmerica Corporation (the "Company") may enter
into underwriting agreements that provide for the sale of designated securities
to the several underwriters named therein. The standard provisions set forth
herein may be incorporated by reference in any such underwriting agreement (an
"Underwriting Agreement"). The Underwriting Agreement, including the provisions
incorporated therein by reference, is herein sometimes referred to as "this
Agreement" or "the Underwriting Agreement." Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein defined.
1. Securities; Prospectus; Representations and Warranties. (a) The
------------------------------------------- ----------
Company proposes to issue and sell from time to time its senior debt securities
(the "Senior Securities") and subordinated debt securities (the "Subordinated
Securities"; the Senior Securities and the Subordinated Securities being herein
collectively referred to as the "Debt Securities"). The Senior Securities are
to be issued under an Indenture dated as of November 1, 1991, as amended or
supplemented (the "Senior Indenture") between the Company and First Trust of
California, National Association, as successor trustee (the "Senior Trustee,"
and together with the Subordinated Trustee, the "Trustees"). The Subordinated
Securities are to be issued under an Indenture dated as of November 1, 1991, as
amended or supplemented, (the "Subordinated Indenture"), between the Company and
Chemical Trust Company of California, as trustee (the "Subordinated Trustee").
The Senior Indenture and the Subordinated Indenture are collectively referred to
herein as the "Indentures." The Debt Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, exchange terms, if any, conversion terms, if any, and
other specific terms.
The Company also proposes to issue and sell from time to time
preferred stock (the "Preferred Stock"). The Preferred Stock will be issuable
in series with varying conversion rights, if any, dividend provisions,
redemption terms and other specific terms.
The Company also proposes to issue and sell from time to time its
depositary preferred stock (the "Depositary Preferred Stock"). The Depositary
Preferred Stock will be issuable in series with varying conversion rights, if
any, dividend provisions, redemption terms and other specific terms, and is to
be deposited with a Depositary under a Deposit Agreement, to be entered into
between the Company, the Depositary and the holders from time to time of
depositary receipts (the "Depositary Receipts") issued thereunder, against
delivery of Depositary Receipts evidencing depositary shares (the "Depositary
Shares"), each of which will represent a fractional interest in the Depositary
Preferred Stock.
<PAGE>
The Company also proposes to issue and sell from time to time its
common stock, par value $1.5625 (the "Common Stock"). The common stock may have
varying selling prices or methods for determining selling prices.
The Company also proposes to issue and sell from time to time warrants
to purchase Debt Securities (the "Debt Securities Warrants"), Common Stock (the
"Common Stock Warrants") or Preferred Stock (the "Preferred Stock Warrants"; the
Debt Securities Warrants, the Common Stock Warrants and the Preferred Stock
Warrants being herein collectively referred to as the "Warrants"). The Warrants
are to be issued pursuant to a warrant agreement (the "Warrant Agreement") to be
entered into between the Company and a warrant agent. The Warrants may have
varying designations, terms for exercising, selling prices and other specific
terms.
The Company also proposes to issue and sell from time to time warrants
entitling the holder to receive the cash value of the right to purchase or to
sell foreign currencies or composite currencies (the "Currency Warrants"). The
Currency Warrants are to be issued pursuant to a warrant agreement (the
"Currency Warrant Agreement") to be entered into between the Company and a
warrant agent. The Currency Warrants may have varying designations, terms for
exercising, selling prices and other specific terms.
The Debt Securities, Preferred Stock, Depositary Preferred Stock,
Depositary Shares, Common Stock, Warrants and Currency Warrants may be sold
either separately or as units (the "Units").
As used herein, "Offered Debt Securities," "Offered Preferred Stock,"
"Offered Depositary Preferred Stock," "Offered Depositary Shares," "Offered
Common Stock," "Offered Debt Securities Warrants," "Offered Common Stock
Warrants," "Offered Preferred Stock Warrants," "Offered Warrants," "Offered
Currency Warrants" and "Offered Units" shall mean the specific Debt Securities,
Preferred Stock, Depositary Preferred Stock, Depositary Shares, Common Stock,
Debt Securities Warrants, Common Stock Warrants, Preferred Stock Warrants,
Warrants, Currency Warrants and Units, respectively described in the
Underwriting Agreement. The Offered Debt Securities, Offered Preferred Stock,
Offered Depositary Preferred Stock, Offered Depositary Shares, Offered Common
Stock, Offered Debt Securities Warrants, Offered Common Stock Warrants, Offered
Preferred Stock Warrants, Offered Warrants, Offered Currency Warrants and
Offered Units described in the Underwriting Agreement shall collectively be
referred to as the "Offered Securities."
(b) The Company has filed with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Act of 1933, as amended (the "1933
Act") a registration statement
2
<PAGE>
(File No. 333-_____) including a prospectus relating to the Debt Securities, the
Preferred Stock, the Depositary Preferred Stock, the Depositary Shares, the
Common Stock, the Debt Securities Warrants, the Common Stock Warrants, the
Preferred Stock Warrants and the Currency Warrants and such registration
statement has become effective. The term "Registration Statement" means the
registration statement as amended to the date of this Agreement. The term
"Basic Prospectus" means the prospectus included in the Registration Statement.
The term "Preliminary Prospectus" means the Basic Prospectus together with a
preliminary prospectus supplement specifically relating to the Offered
Securities. The Company will file with, or mail for filing to, the Commission a
prospectus supplement specifically relating to the Offered Securities pursuant
to Rule 424 under the 1933 Act (the "Prospectus Supplement"), together, if
required, with the Basic Prospectus (collectively, the "Prospectus"). As used
herein, the terms "Registration Statement," "Basic Prospectus," "Prospectus" and
"Preliminary Prospectus" shall include in each case the material, if any,
incorporated by reference therein and the terms "amend," "amendment" and
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Securities Exchange Act of 1934, as amended (the "1934
Act") after the effective date of the Registration Statement, or the date of any
Preliminary Prospectus or the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(c) The Company represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the 1934 Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the 1934 Act and the rules and regulations
thereunder, (ii) each part of the Registration Statement (including the
documents incorporated by reference therein), when such part became effective or
was filed, as the case may be, complied in all material respects with the 1933
Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
respective rules and regulations thereunder and did not contain any untrue
statements of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (iii)
the Registration Statement at the date of the Prospectus Supplement and at the
Closing Date will meet the requirements set forth in Rule 415(a)(1)(x) under the
1933 Act and will comply in all other material respects with said rule, (iv)
each Preliminary Prospectus, if any, filed pursuant to Rule 424 under the 1933
Act will comply when so filed in all material respects with the 1933 Act, and
the rules and regulations thereunder, (v) the Registration Statement, the
Prospectus and the applicable Indenture comply and, as amended or supplemented,
will comply in all material respects with the 1933 Act and the Trust Indenture
Act and the respective rules and regulations thereunder, (vi) at
3
<PAGE>
the date of the Prospectus Supplement, at the date of any further amendment to
the Registration Statement or supplement to the Prospectus and at the Closing
Date, the Registration Statement and the Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except that these representations and warranties do not apply to (a) that part
of the Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act of the
Trustees or (b) statements in or omissions from any such documents based upon
information furnished to the Company in writing by or in any document prepared
by any Underwriter, any Warrant Agent or by the Trustees expressly for use
therein, (vii) the Company has furnished to the Representatives such
information, financial and other, regarding the Company as is expected to be
included in the Prospectus Supplement, and (viii) the Company has complied and
will comply with the provisions of that certain Florida act relating to the
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder or is exempt
therefrom.
(d) The Company represents and warrants to each Underwriter that there
has been no material adverse change in the condition (financial or otherwise),
earnings, business or properties of the Company and its subsidiaries considered
as one enterprise, whether or not arising from transactions in the ordinary
course of business, since the date of the most recent financial statements
included or incorporated in the Prospectus, as amended or supplemented as of the
Closing Date, except as set forth or contemplated in such Prospectus.
2. Offering of Offered Securities. The Company is advised by the
------------------------------
Representatives that the Underwriters propose to offer the Offered Securities in
the manner set forth in the Prospectus.
3. Delivery and Payment. Payment for the Offered Securities shall be
--------------------
made by Federal Funds, credit advice or official bank check or checks payable to
the order of the Company in such funds and at the time and place set forth in
this Agreement, upon [delivery of the Offered Securities] [confirmation of
delivery of the Offered Depositary Preferred Stock to the Depositary against
delivery of Depositary Receipts evidencing the Offered Depositary Shares] to the
Representatives for the respective accounts of the several Underwriters,
registered in such names and in such denominations as the Representatives shall
request in writing not less than two full business days prior to the date of
delivery. The time and date of such payment and delivery of the Offered
Securities are herein referred to as the Closing Date.
4
<PAGE>
4. Agreements. The Company agrees with the Underwriters that:
----------
(a) The Company will cause the Prospectus Supplement and, if required,
the Basic Prospectus to be filed pursuant to Rule 424 under the 1933 Act and,
prior to the termination of the offering of the Offered Securities, will
promptly advise the Representatives (i) when any amendment to the Registration
Statement shall have become effective or any further supplement to the
Prospectus shall have been filed, (ii) of any request by the Commission for any
amendment of the Registration Statement or further supplement to the Prospectus
or for any additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Offered Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. Prior to the
termination of the offering of the Offered Securities and prior to the
expiration or exercise of Offered Warrants, if any, the Company will not file
any amendment to the Registration Statement or any further supplement to the
Prospectus unless the Company has furnished the Representatives a copy for
review prior to filing and will not file any such proposed amendment or
supplement to which the Representatives reasonably object. The Company will use
its best efforts to prevent the issuance of any such stop order and, if issued,
to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the 1933 Act, any event occurs as a
result of which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, or if it shall be necessary to amend or
supplement the Prospectus to comply with the 1933 Act or the 1934 Act or the
respective rules thereunder, the Company promptly will prepare and file with the
Commission, subject to paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45 days
after the end of the 12-month period beginning at the end of the fiscal quarter
of the Company during which the filing of the Prospectus pursuant to Rule 424
under the 1933 Act first occurs (except not later than 90 days if such filing
date is in the Company's last fiscal quarter), an earnings statement of the
Company and its
5
<PAGE>
consolidated subsidiaries which will satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 under the 1933 Act.
(d) The Company will furnish to counsel for the Underwriters, without
charge, a signed copy of the Registration Statement (including exhibits thereto
and materials incorporated by reference therein) and to each Representative a
copy of the Registration Statement (including exhibits thereto and materials
incorporated by reference therein) and, so long as delivery of a prospectus by
an Underwriter or dealer in connection with the sale of the Offered Securities
may be required by the 1933 Act, as many copies of each Preliminary Prospectus
and the Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, the expenses of printing all documents
relating to the offering of the Offered Securities and any fees charged for
rating the Offered Securities.
(f) The Company will arrange for the qualification of the Offered
Securities and the Common Stock, Preferred Stock or Depositary Shares which may
be issuable pursuant to the Offered Securities for sale under the laws of such
jurisdictions as the Representatives may designate, will maintain such
qualifications in effect so long as required for the distribution of the Offered
Securities and will arrange for the determination of the eligibility of the
Offered Securities for purchase by certain institutional investors under the
laws of such jurisdictions as the Representatives may designate.
(g) The Company will arrange for the listing of the Offered Currency
Warrants, the Offered Preferred Stock, the Offered Depositary Shares or the
Offered Common Stock upon notice of issuance on the New York Stock Exchange or
such other national securities exchange as may be designated in the Underwriting
Agreement.
(h) The Company will arrange for the listing of any Common Stock
issuable upon conversion or exercise of Offered Securities to be listed on all
national securities exchanges on which the Company's outstanding Common Stock is
then listed.
5. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the Underwriters to purchase the Offered Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof and the Closing Date, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
6
<PAGE>
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Representatives shall have received on the Closing Date the
opinion of the General Counsel of the Company, counsel for the Company (or other
counsel for the Company acceptable to the Representatives), dated the Closing
Date, to the effect set forth in Exhibit A hereto.
(c) The Representatives shall have received on the Closing Date the
opinion of Orrick, Herrington & Sutcliffe LLP, counsel for the Underwriters (or
other counsel for the Underwriters acceptable to the Representatives), dated the
Closing Date, with respect to the issuance and sale of the Offered Securities,
the Registration Statement, the Prospectus and other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purposes of enabling them to
pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board, the Chief
Executive Officer, President, a Vice Chairman of the Board, a Vice Chairman or
the Chief Financial Officer of the Company and the Treasurer or an Assistant
Treasurer of the Company (or, in either such case, another officer or officers
acceptable to the Representatives), dated the Closing Date, to the effect that
the signatories of such certificate have carefully examined the Registration
Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus, there has been no material adverse change,
nor any presently known and existing development that the Company
expects to result in a material adverse change, in the financial
condition, earnings, business or properties of the Company and its
subsidiaries considered as one enterprise, whether or not arising from
transactions in
7
<PAGE>
the ordinary course of business, except as set forth in or
contemplated in the Prospectus.
(e) The Representatives shall have received on the Closing Date a
letter from Ernst & Young LLP, independent public accountants (or other
independent public accountants acceptable to the Representatives), dated the
Closing Date, in form and substance satisfactory to the Representatives
containing statements and information of the type ordinarily included in
accountants "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Registration Statement and the Prospectus.
(f) There shall not have been any change or decrease specified in the
letter referred to in paragraph (e) of this Section 5 or, subsequent to the date
of the Underwriting Agreement, there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries the effect of which, in any case
referred to in this paragraph (f), is, in the judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed with
the delivery or offering of the Offered Securities as contemplated by the
Prospectus.
[(g) The Representatives shall have received on the Closing Date an
opinion dated the Closing Date, satisfactory to the Representatives and counsel
for the Representatives, of counsel for the Depositary, to the effect that the
Deposit Agreement has been duly authorized, executed and delivered by the
Depositary and is a valid and binding agreement of the Depositary, enforceable
in accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.]
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be cancelled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to
8
<PAGE>
the Company in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Offered Securities provided for in this Agreement is not consummated because any
condition to the obligations of the Underwriters set forth in Section 5 hereof
is not satisfied or because of any refusal, inability or failure on the part of
the Company to perform any agreement in this Agreement or comply with any
provision in this Agreement other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters severally upon demand
for all out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been reasonably incurred by them in connection with the
proposed purchase and sale of the Offered Securities and shall have no further
obligations to the Underwriters with respect thereto. In no event shall the
Company be liable to the Underwriters for loss of anticipated profits from the
transactions contemplated by this Agreement.
7. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the 1933 Act or the 1934 Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the 1933 Act, the 1934 Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that (i) the
-------- -------
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation thereof, or the
Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture
Act of any of the Trustees, and (ii) such indemnity with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any such
loss, claim, damage or liability purchased the Offered Securities which are
9
<PAGE>
the subject thereof, if such person did not receive a copy of the Prospectus (or
the Prospectus as amended or supplemented), excluding documents incorporated
therein by reference, at or prior to the confirmation of the sale of such
Offered Securities to such person in any case where such delivery is required by
the 1933 Act and the untrue statement or omission of a material fact contained
in such Preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the 1933 Act or the 1934 Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for use in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party; provided,
--------
however, if the defendants in any such action include both the indemnified party
- -------
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred
10
<PAGE>
by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of subparagraph (a), representing the indemnified
parties who are parties to such action), (ii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable on grounds of policy or otherwise, the Company and the Underwriters
shall contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending the same) to which the Company and one or more of the
Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the aggregate
underwriting discount appearing on the cover page of the Prospectus Supplement
bears to the aggregate public offering price appearing thereon and the Company
is responsible for the balance; provided, however, that (y) in no case shall any
-------- -------
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Offered Securities) be responsible for any
amount in excess of the underwriting discount applicable to the Offered
Securities purchased by such Underwriter hereunder and (z) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of the 1933 Act shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the 1933 Act or the 1934 Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this
paragraph (d), notify such party or parties from whom
11
<PAGE>
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d). This notice requirement shall be deemed satisfied by the
delivery of the notice contemplated by the first sentence of subparagraph (c) of
this Section 7.
8. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Offered Securities, if prior to such
time (i) trading in securities generally on the New York Stock Exchange shall
have been suspended or materially limited, (ii) a commercial banking moratorium
shall have been declared by either Federal or New York or California State
authorities, or (iii) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis, the effect of which on
the United States or international markets is such as to make it, in the
reasonable judgment of the Representatives, impracticable to market the Offered
Securities or enforce contracts for the sale of the Offered Securities.
9. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 7 hereof,
and will survive delivery of and payment for the Offered Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed to the address furnished to the Company in writing for
the purpose of communications hereunder; or, if sent to the Company, will be
mailed, delivered or telegraphed to it at Bank of America Center, 555 California
Street, San Francisco, California 94104, attention of the Secretary.
11. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder. No purchaser of
Offered Securities or Depositary Receipts from any Underwriter shall be deemed a
successor because of such purchase.
12
<PAGE>
EXHIBIT A
---------
FORM OF OPINION OF
COUNSEL TO THE COMPANY
----------------------
The opinion of counsel for the Company, to be delivered pursuant to
Section 5(b) of the Underwriting Agreement, shall be to the effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, with
full corporate power and corporate authority to own its properties and conduct
its business as described in the Prospectus and is duly registered as a bank
holding company under the Bank Holding Company Act of 1956, as amended;
(ii) Bank of America National Trust and Savings Association (the
"Bank") holds a valid Certificate of Authority from the Comptroller of the
Currency of the United States of America to do business as a national banking
association under the laws of the United States and has full corporate power and
authority to own its properties and conduct its business as described in the
Prospectus; and all the outstanding shares of capital stock of the Bank have
been duly and validly authorized and issued, are fully paid and (except as
provided in 12 U.S.C. (S) 55) nonassessable, and are directly owned by the
Company free and clear of liens and encumbrances;
(iii) [If the Offered Securities include or are exercisable or
exchangeable for or convertible into equity securities of the Company insert --
the Company's authorized and outstanding capital stock was as set forth in the
Prospectus as of the dates set forth therein;] the Offered Securities conform to
the description thereof contained in the Prospectus;
[If the Offered Securities include Offered Debt Securities insert --
(iv) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act and constitutes a valid
and binding instrument of the Company enforceable against the Company in
accordance with its terms (subject, (1) to further action by the Company's Board
of Directors to authorize the issuance of Capital Securities to be exchanged for
Subordinated Debt Securities or sold to be designated for inclusion in a
securities fund, as provided in the Indenture and (2) to the qualifications to
be set forth in the opinion);
(v) the Offered Debt Securities have been duly authorized by the
Company, executed in accordance with the provisions of the Indenture, and
authenticated by the Trustee or
A-1
<PAGE>
its agent in accordance with the provisions of the Indenture and, when delivered
to and paid for by the Underwriters pursuant to the Underwriting Agreement, will
constitute valid and binding obligations enforceable against the Company in
accordance with their terms and will be entitled to the benefits of the
Indenture (subject to the qualifications to be set forth in the opinion);]
[If the Offered Debt Securities include Offered Debt Securities which
are to be exchangeable for Capital Securities insert --
(vi) the Offered Debt Securities are exchangeable for Capital
Securities, as defined in the Indenture, of the Company in accordance with the
terms of the Offered Securities and the Indenture (subject to the qualifications
to be set forth in the opinion);]
[If the Offered Securities include Offered Preferred Stock insert --
(vii) the Offered Preferred Stock has been duly authorized for issuance
and sale, and, when issued and delivered to and paid for by the Underwriters
pursuant to the Underwriting Agreement will be validly issued, fully paid and
nonassessable; the certificates for the Offered Preferred Stock are in valid and
sufficient form;
(viii) the Offered Preferred Stock ranks on a parity with all issued and
outstanding shares of Preferred Stock as to dividends and as to distributions of
assets except as set forth in the Prospectus;]
[If the Offered Securities include Offered Depositary Preferred Stock
insert --
(ix) the Offered Depositary Preferred Stock has been duly authorized
for issuance and sale, and, when issued and delivered to the Depositary against
delivery of the Depositary Receipts evidencing the Offered Depositary Shares to
the Underwriters and payment by the Underwriters pursuant to the Underwriting
Agreement will be validly issued, fully paid and nonassessable; the certificates
for the Offered Depositary Preferred Stock are in valid and sufficient form;
(x) the Offered Depositary Preferred Stock ranks on a parity with all
issued and outstanding shares of Preferred Stock as to dividends and as to
distributions of assets except as set forth in the Prospectus;
(xi) assuming due authorization, execution and delivery of the Deposit
Agreement by the Depositary, the Deposit Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company enforceable in accordance with its terms (subject to the
qualifications set forth in the opinion); and the Depositary Receipts when
executed
A-2
<PAGE>
and delivered pursuant to the Deposit Agreement upon deposit of the Offered
Depositary Preferred Stock thereunder, will be validly issued and will entitle
the holders thereof to the rights specified in the Depositary Receipts and in
the Deposit Agreement;]
[If the Offered Securities include Offered Common Stock insert --
(xii) the Offered Common Stock has been duly authorized and will be,
when duly countersigned by the Company's Transfer Agent and Registrar and upon
issuance and delivery against payment therefor in accordance with the terms of
the Underwriting Agreement, validly issued, fully paid and nonassessable.]
[If the Offered Securities are convertible into Common Stock or
Capital Securities insert --
(xiii) the Offered Securities are convertible in accordance with their
terms [and the Indenture] and the __________ issuable upon conversion thereof
have been duly and validly authorized and reserved for issuance upon such
conversion, and when issued upon such conversion in accordance with the terms of
the Offered Securities will be duly authorized, validly issued, fully paid and
nonassessable;]
[If the Offered Securities include Offered Warrants insert --
(xiv) the Offered Warrants have been duly authorized and duly
executed by the proper officers of the Company and authenticated by the warrant
agent under the Warrant Agreement and constitute legal, valid and binding
obligations of the Company; [the Debt Securities initially issuable upon
exercise thereof have been duly authorized, and when executed and authenticated
in accordance with the Warrant Agreement and the Indenture upon exercise of the
Warrants in accordance with the terms of the Warrant Agreement and at the price
therein provided for, will be valid and binding obligations enforceable against
the Company in accordance with their terms and will be entitled to the benefits
of the Indenture (subject to the qualifications to be set forth in the
opinion);] [the Preferred Stock initially issuable upon exercise thereof has
been duly and validly authorized and reserved for issuance upon such exercise
and such shares, when issued upon such exercise in accordance with the terms of
the Warrant Agreement and at the price therein provided for, will be duly
authorized, validly issued, fully paid and nonassessable;] [the Common Stock
initially issuable upon exercise thereof has been duly and validly authorized
and reserved for issuance upon such exercise and such shares, when issued upon
such exercise in accordance with the terms of the Warrant Agreement and at the
price therein provided for, will be duly authorized, validly issued, fully paid
and nonassessable;]
A-3
<PAGE>
(xv) assuming due authorization, execution and delivery of the Warrant
Agreement by the Warrant Agent, the Warrant Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding instrument of
the Company enforceable in accordance with its terms (subject to the
qualifications to be set forth in the opinion);]
[If the Offered Securities include Offered Currency Warrants insert --
(xvi) the Offered Currency Warrants have been duly authorized and duly
executed by the proper officers of the Company and countersigned by the warrant
agent under the Currency Warrant Agreement and constitute legal, valid and
binding obligations of the Company;
(xvii) the Currency Warrant Agreement has been duly authorized, executed
and delivered and constitutes a valid and binding instrument enforceable against
the Company in accordance with its terms (subject to the qualifications to be
set forth in the opinion);]
(xviii) to the best knowledge of such counsel, (a) there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its
subsidiaries of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Prospectus, and (b) there is
no franchise, contract or other document which is known to such counsel of a
character required to be described in the Registration Statement or Prospectus,
or to be filed as an exhibit, which is not described or filed as required;
(xix) (a) the Registration Statement has become effective under the
1933 Act; (b) to the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been issued, no proceedings
for that purpose have been instituted or threatened; and (c) the Registration
Statement, the Prospectus and each amendment thereof or supplement thereto and
each document incorporated by reference therein (other than the Statements of
Eligibility and Qualification (Forms T-1) under the Trust Indenture Act of the
Trustees and the financial statements, schedules and other financial and
statistical information contained or incorporated therein, or that should have
been so contained or incorporated, as to which such counsel need express no
opinion), as of their respective effective or issue dates, complied as to form
in all material respects with the applicable requirements of the 1933 Act and
the 1934 Act and the respective rules thereunder (in passing on the form of such
Registration Statement, counsel may assume the correctness and completeness of
the statements made therein);
(xx) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
A-4
<PAGE>
(xxi) no consent, approval, authorization or order of any court or
governmental agency or body is required of the Company for the consummation of
the transactions contemplated in the Underwriting Agreement [or the Warrant
Agreement] [or the Deposit Agreement], except such as have been obtained under
the 1933 Act, 1939 Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the Offered
Securities by the Underwriters and the following other approvals, which have
been obtained: ____________________;
(xxii) neither the issue and sale of the Offered Securities, nor the
consummation of any other of the transactions contemplated in the Underwriting
Agreement [or the Warrant Agreement] [or the Deposit Agreement] nor the
fulfillment of the terms thereof will conflict with, result in a breach of, or
constitute a default under the certificate of incorporation or by-laws of the
Company or, to the best knowledge of such counsel, any indenture or other
agreement or instrument to which the Company or the Bank is a party or bound, or
any order or regulation of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company or the Bank
which in the case of any indenture, agreement, instrument or order, would have a
material adverse effect on the holders of the Offered Securities or the
financial condition, earnings, business or properties of the Company and its
subsidiaries, taken as one enterprise; and
(xxiii) there are no holders of securities of the Company having rights
to the registration of such securities under the Registration Statement.
In addition, such opinion shall also cover, if applicable to a
particular issue of Offered Securities, matters relating to Delayed Delivery
Contracts, listing on the New York Stock Exchange or other securities exchange,
the nonapplicability of the California usury law and such other matters as the
Representatives may reasonably require.
In addition, such counsel shall state that nothing has come to the
attention of such counsel to cause such counsel to believe that the Registration
Statement, or any amendment thereof, at the time it became effective contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, as of the date of this Agreement and as of
the Closing Date contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need not make any comment
with respect to the accuracy, completeness or fairness of the financial
statements, schedules and other financial and statistical information contained
or incorporated therein, or that should have been so contained or
A-5
<PAGE>
incorporated, or with respect to the Statements of Eligibility and Qualification
of the trustees named in the Registration Statement on their Forms T-1).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent such counsel shall deem proper
and specify in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to counsel
for the Underwriters; and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and public
officials.
A-6
<PAGE>
Exhibit 4(f)
- --------------------------------------------------------------------------------
BANKAMERICA CORPORATION
to
BANKERS TRUST COMPANY
Trustee
JUNIOR SUBORDINATED INDENTURE
Dated as of _________________
---------------------
- --------------------------------------------------------------------------------
<PAGE>
BANKAMERICA CORPORATION
Reconciliation and tie between the Trust Indenture Act of 1939 (including
cross-references to provisions of Sections 310 to and including 317 which,
pursuant to Section 318(c) of the Trust Indenture Act of 1939, as amended by the
Trust Reform Act of 1990, are a part of and govern the Indenture whether or not
physically contained therein) and the Junior Subordinated Indenture, dated as of
_______ __, 199_.
Trust Indenture Indenture
Act Section Section
- --------------- ---------
S 310 (a) (1), (2) and (5)....................................6.9
(a) (3)................................................ Not Applicable
(a) (4).................................................Not Applicable
(b).....................................................6.8
........................................................6.10
(c).....................................................Not Applicable
S 311 (a).....................................................6.13(a)
(b).....................................................6.13(b)
(b) (2).................................................7.3(a) (2)
........................................................7.3(a) (2)
S 312 (a).....................................................7.1
........................................................7.2(a)
(b).....................................................7.2(b)
(c).....................................................7.2(c)
S 313 (a).....................................................7.3(a)
(b).....................................................7.3(b)
(c).....................................................7.3(a), 7.3(b)
(d).....................................................7.3(c)
S 314 (a) (1), (2) and (3)....................................7.4
(a) (4).................................................10.5
(b).....................................................Not Applicable
(c) (1).................................................1.2
(c) (2).................................................1.2
(c) (3).................................................Not Applicable
(d).....................................................Not Applicable
(e).....................................................1.2
(f).....................................................Not Applicable
S 315 (a).....................................................6.1(a)
(b).....................................................6.2
........................................................7.3(a) (6)
(c).....................................................6.1(b)
i
<PAGE>
(d).....................................................6.1(c)
(d) (1).................................................6.1(a) (1)
(d) (2).................................................6.1(c) (2)
(d) (3).................................................6.1(c) (3)
(e).....................................................5.14
S 316 (a).....................................................1.1
(a) (1) (A).............................................5.12
(a) (1) (B).............................................5.13
(a) (2).................................................Not Applicable
(b).....................................................5.8
(c).....................................................1.4(f)
S 317 (a) (1).................................................5.3
(a) (2).................................................5.4
(b).....................................................10.3
S 318 (a).....................................................1.7
-----------------------------------------------------
- ---------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Junior Subordinated Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions..................................................... 1
SECTION 1.2 Compliance Certificate and Opinions............................. 9
SECTION 1.3 Forms of Documents Delivered to Trustee......................... 10
SECTION 1.4 Acts of Holders................................................. 10
SECTION 1.5 Notices, Etc. to Trustee and Company............................ 12
SECTION 1.6 Notice to Holders; Waiver....................................... 13
SECTION 1.7 Conflict with Trust Indenture Act............................... 13
SECTION 1.8 Effect of Headings and Table of Contents........................ 13
SECTION 1.9 Successors and Assigns.......................................... 13
SECTION 1.10 Separability Clause............................................. 13
SECTION 1.11 Benefits of Indenture........................................... 13
SECTION 1.12 Governing Law................................................... 14
SECTION 1.13 Non-Business Days............................................... 14
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.................................................. 14
SECTION 2.2 Form of Face of Security......................................... 15
SECTION 2.3 Form of Reverse of Security...................................... 18
SECTION 2.4 Additional Provisions Required in Global Security................ 21
SECTION 2.5 Form of Trustee's Certificate of Authentication.................. 22
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms.................................................. 22
SECTION 3.2 Denominations.................................................... 24
SECTION 3.3 Execution, Authentication, Delivery and Dating................... 25
SECTION 3.4 Temporary Securities............................................. 26
SECTION 3.5 Registration, Transfer and Exchange.............................. 26
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities................. 28
SECTION 3.7 Payment of Interest; Interest Rights Preserved................... 29
SECTION 3.8 Persons Deemed Owners............................................ 30
SECTION 3.9 Cancellation..................................................... 30
iii
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Page
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SECTION 3.10 Computation of Interest......................................... 30
SECTION 3.11 Deferrals of Interest Payment Dates............................. 31
SECTION 3.12 Right of Set-Off................................................ 32
SECTION 3.13 Agreed Tax Treatment............................................ 32
SECTION 3.14 Shortening or Extension of Stated Maturity...................... 32
SECTION 3.15 CUSIP Numbers................................................... 32
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.......................... 33
SECTION 4.2 Application of Trust Money....................................... 34
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default............................................... 34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.............. 35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. 36
SECTION 5.4 Trustee May File Proofs of Claim................................ 37
SECTION 5.5 Trustee May Enforce Claim Without Possession of Securities...... 38
SECTION 5.6 Application of Money Collected.................................. 38
SECTION 5.7 Limitation on Suits............................................. 38
SECTION 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.. 39
SECTION 5.9 Restoration of Rights and Remedies.............................. 39
SECTION 5.10 Rights and Remedies Cumulative.................................. 40
SECTION 5.11 Delay or Omission Not Waiver.................................... 40
SECTION 5.12 Control by Holders.............................................. 40
SECTION 5.13 Waiver of Past Defaults......................................... 40
SECTION 5.14 Undertaking for Costs........................................... 41
SECTION 5.15 Waiver of Usury, Stay or Extension Laws......................... 41
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.............................. 42
SECTION 6.2 Notice of Defaults............................................... 43
SECTION 6.3 Certain Rights of Trustee........................................ 43
iv
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Page
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SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.......... 44
SECTION 6.5 May Hold Securities............................................. 44
SECTION 6.6 Money Held in Trust............................................. 44
SECTION 6.7 Compensation and Reimbursement.................................. 45
SECTION 6.8 Disqualification; Conflicting Interests......................... 45
SECTION 6.9 Corporate Trustee Required; Eligibility......................... 45
SECTION 6.10 Resignation and Removal; Appointment of Successor............... 46
SECTION 6.11 Acceptance of Appointment by Successor.......................... 47
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business..... 48
SECTION 6.13 Preferential Collection of Claims Against Company............... 49
SECTION 6.14 Appointment of Authenticating Agent............................. 49
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders........ 51
SECTION 7.2 Preservation of Information, Communications to Holders........... 51
SECTION 7.3 Reports by Trustee............................................... 51
SECTION 7.4 Reports by Company............................................... 52
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms............. 52
Section 8.2 Successor Corporation Substituted................................ 53
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders............... 54
SECTION 9.2 Supplemental Indentures with Consent of Holders.................. 55
SECTION 9.3 Execution of Supplemental Indentures............................. 56
SECTION 9.4 Effect of Supplemental Indentures................................ 56
SECTION 9.5 Conformity with Trust Indenture Act.............................. 56
SECTION 9.6 Reference in Securities to Supplemental Indentures............... 56
v
<PAGE>
Page
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ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest...................... 57
SECTION 10.2 Maintenance of Office or Agency................................. 57
SECTION 10.3 Money for Security Payments to be Held in Trust................. 57
SECTION 10.4 Statement as to Compliance...................................... 58
SECTION 10.5 Waiver of Certain Covenants..................................... 59
SECTION 10.6 Additional Sums................................................. 59
SECTION 10.7 Additional Covenants............................................ 59
SECTION 10.8 Original Issue Discount......................................... 60
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of This Article................................... 61
SECTION 11.2 Election to Redeem; Notice to Trustee........................... 61
SECTION 11.3 Selection of Securities to be Redeemed.......................... 61
SECTION 11.4 Notice of Redemption............................................ 62
SECTION 11.5 Deposit of Redemption Price..................................... 63
SECTION 11.6 Payment of Securities Called for Redemption..................... 63
SECTION 11.7 Right of Redemption of Securities Initially Issued to a
BankAmerica Trust............................................... 63
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article........................................ 64
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities........... 64
SECTION 12.3 Redemption of Securities for Sinking Fund....................... 64
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1 Securities Subordinate to Senior Indebtedness................... 66
SECTION 13.2 No Payment When Senior Indebtedness in Default; Payment Over of
Proceeds Upon Dissolution, Etc.................................. 66
SECTION 13.3 Payment Permitted If No Default................................. 68
SECTION 13.4 Subrogation to Rights of Holders of Senior Indebtedness......... 68
vi
<PAGE>
Page
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SECTION 13.5 Provisions Solely to Define Relative Rights.................... 69
SECTION 13.6 Trustee to Effectuate Subordination............................ 69
SECTION 13.7 No Waiver of Subordination Provisions.......................... 69
SECTION 13.8 Notice to Trustee.............................................. 70
SECTION 13.9 Reliance on Judicial Order or Certificate of Liquidating Agent. 70
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness....... 71
SECTION 13.11 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights............................... 71
SECTION 13.12 Article Applicable to Paying Agents............................ 71
ANNEX A - Form of Trust Agreement
ANNEX B - Form of Amended and Restated Trust Agreement
ANNEX C - Form of Guarantee Agreement
vii
<PAGE>
JUNIOR SUBORDINATED INDENTURE, dated as of ___________, 1996, between
BANKAMERICA CORPORATION, a Delaware corporation (hereinafter called the
"Company") having its principal office at 555 California Street, San Francisco,
California 94104, and BANKERS TRUST COMPANY, a New York banking corporation, as
Trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured junior
subordinated debt securities in series (hereinafter called the "Securities") of
substantially the tenor hereinafter provided, including, without limitation,
Securities issued to evidence loans made to the Company of the proceeds from the
issuance from time to time by one or more business trusts (each a "BankAmerica
Trust," and, collectively, the "BankAmerica Trusts") of preferred trust
interests in such Trusts (the "Preferred Securities") and common interests in
such Trusts (the "Common Securities" and, collectively with the Preferred
Securities, the "Trust Securities"), and to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) All other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) All accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall
<PAGE>
mean such accounting principles which are generally accepted at the date or time
of such computation; provided, that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Company; and
(4) The words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Act" when used with respect to any Holder has the meaning specified in
Section 1.4.
"Additional Interest" means the interest, if any, that shall accrue on any
interest on the Securities of any series the payment of which has not been made
on the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Security.
"Additional Sums" has the meaning specified in Section 10.6.
"Additional Taxes" means the sum of any additional taxes, duties and other
governmental charges to which a BankAmerica Trust has become subject from time
to time as a result of a Tax Event.
"Administrative Trustee" means, in respect of any BankAmerica Trust, each
Person identified as an "Administrative Trustee" in the related Trust Agreement,
solely in such Person's capacity as Administrative Trustee of such BankAmerica
Trust under such Trust Agreement and not in such Person's individual capacity,
or any successor administrative trustee appointed as therein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, no BankAmerica Trust to
which Securities have been issued shall be deemed to be an Affiliate of the
Company. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Allocable Amounts," when used with respect to any Senior Subordinated
Debt, means the amount necessary to pay all principal (and premium, if any) and
interest, if any, on such Senior Subordinated Debt in full less, if applicable,
any portion of such amount which would have been paid to, and retained by, the
holders of such Senior Subordinated Debt (whether as a result of the receipt of
payments by the holders of such Senior Subordinated Debt from the Company 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 Senior
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
Senior Subordinated Debt) but for the fact that such Senior Subordinated Debt is
subordinate or junior in right of payment to trade accounts payable or accrued
liabilities arising in the ordinary course of business.
2
<PAGE>
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"BankAmerica Guarantee" means the guarantee by the Company of distributions
on the Preferred Securities of a BankAmerica Trust to the extent provided in the
Guarantee Agreement.
"BankAmerica Trust" has the meaning specified in the first recital of this
Indenture.
"Board of Directors" means either the board of directors of the Company or
any executive committee or other committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or officers of the Company to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day" means any day other than (i) a Saturday or Sunday, (ii) 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 (iii) a day on which the
Corporate Trust Office of the Trustee, or, with respect to the Securities of a
series initially issued to a BankAmerica Trust, the principal office of the
Property Trustee under the related Trust Agreement, is closed for business.
"Capital Treatment Event" means, with respect to an issue of Preferred
Securities under the related Trust Agreement, the reasonable determination by
the Company (as evidenced by an Officers' Certificate delivered to the Trustee)
that, as a result of the occurrence 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 thereof or therein, or as a
result of any official or administrative pronouncement or action or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement, action or decision is announced on or
after the Original Issue Date of such Preferred Securities, there is more than
an insubstantial risk that the Company will not be entitled to treat an amount
equal to the Liquidation Amount of such Preferred Securities as "Tier 1 Capital"
(or the then equivalent thereof) for purposes of the capital adequacy guidelines
of the Federal Reserve, as then in effect and applicable to the Company.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Securities" has the meaning specified in the first recital of this
Indenture.
"Common Stock" means the common stock, par value $1.5625 per share, of the
Company.
3
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by the Chairman of the Board
of Directors, the Chairman of the Executive Committee of the Board of Directors,
a Vice Chairman of the Board of Directors, the Chief Executive Officer, the
President, the Chief Operating Officer, a Vice Chairman or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office as of the date of this Indenture is located at
______________________________________________________, Attention:
__________________________________.
"Corporation" includes a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series issuable
or issued in whole or in part in the form of one or more Global Securities, the
Person designated as Depository by the Company pursuant to Section 3.1 with
respect to such series (or any successor thereto).
"Discount Security" means any security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 5.2.
"Distributions," with respect to the Trust Securities issued by a
BankAmerica Trust, means amounts payable in respect of such Trust Securities as
provided in the related Trust Agreement and referred to therein as
"Distributions."
"Dollar" means the currency of the United States of America that, as at the
time of payment, is legal tender for the payment of public and private debts.
"Event of Default" unless otherwise specified in the supplemental indenture
creating a series of Securities has the meaning specified in Article V.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Extension Period" has the meaning specified in Section 3.11.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
4
<PAGE>
"Global Security" means a Security in the form prescribed in Section 2.4
evidencing all or part of a series of Securities, issued to the Depository or
its nominee for such series, and registered in the name of such Depository or
its nominee.
"Guarantee Agreement" means the Guarantee Agreement substantially in the
form attached hereto as Annex C, or substantially in such form as may be
specified as contemplated by Section 3.1 with respect to the Securities of any
series, in each case as amended from time to time.
"Holder" means a Person in whose name a Security is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of each particular series of Securities established as
contemplated by Section 3.1.
"Interest Payment Date" means as to each series of Securities the Stated
Maturity of an installment of interest on such Securities.
"Junior Subordinated Debt" means any obligation of the Company to its
creditors, whether now outstanding or subsequently incurred, where the
instrument creating or evidencing the obligations pursuant to which the
obligation provides that it is subordinated and junior in right of payment to
Senior Indebtedness pursuant to subordination provisions substantially similar
to those set forth in this Indenture. Junior Subordinated Debt includes the
Securities.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Moody's" means Moody's Investors Service, Inc.
"Notice of Default" means a written notice of the kind specified in Section
5.1(3).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the President or
a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Date" means the date of issuance specified as such in each
Security.
"Outstanding" means, when used in reference to any Securities, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
5
<PAGE>
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust for the
Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been paid
pursuant to Section 3.6, unless proof satisfactory to the Trustee is presented
that any such Securities are held by Holders in whose hands such Securities are
valid, binding and legal obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor. Upon the written request of the Trustee, the Company shall furnish to
the Trustee promptly an Officers' Certificate listing and identifying all
Securities, if any, known by the Company to be owned or held by or for the
account of the Company, or any other obligor on the Securities or any Affiliate
of the Company or such obligor, and, subject to the provisions of Section 6.1,
the Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Securities not
listed therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, with respect to the Securities of any series, the
place or places where the principal of (and premium, if any) and interest on the
Securities of such series are payable pursuant to Sections 3.1 and 3.11.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any security
authenticated and delivered under Section 3.6 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Security.
"Preferred Securities" has the meaning specified in the first recital of
this Indenture.
6
<PAGE>
"Proceeding" has the meaning specified in Section 13.2.
"Property Trustee" means, in respect of any BankAmerica Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
related Trust Agreement, solely in its capacity as Property Trustee of such
BankAmerica Trust under such Trust Agreement and not in its individual capacity,
or its successor in interest in such capacity, or any successor property trustee
appointed as therein provided.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Securities of a series means, unless otherwise provided
pursuant to Section 3.1 with respect to Securities of a series, the date which
is fifteen days next preceding such Interest Payment Date (whether or not a
Business Day).
"Responsible Officer" means when used with respect to the Trustee, any
officer assigned to the Corporate Trust Office, including any managing director,
vice president, assistant vice president, assistant treasurer, assistant
secretary or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Rights Plan" means a plan of the Company providing for the issuance by the
Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred stock, which rights (i) are deemed to be transferred with
such shares of Common Stock, (ii) are not exercisable and (iii) are also issued
in respect of future issuances of Common Stock, in each case until the
occurrence of a specified event or events.
"S&P" means Standard & Poor's Ratings Services.
"Securities" or "Security" means any debt securities or debt security, as
the case may be, authenticated and delivered under this Indenture.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means any obligation of the Company 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. Senior Debt does not include Senior Subordinated Debt or Junior
Subordinated Debt.
7
<PAGE>
"Senior Indebtedness" means (i) Senior Debt (but excluding trade accounts
payable and accrued liabilities arising in the ordinary course of business) and
(ii) the Allocable Amounts of Senior Subordinated Debt.
"Senior Subordinated Debt" means any obligation of the Company 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 pursuant to subordinated provisions substantially
similar to those applicable to the Company's outstanding Senior Subordinated
Debt. Senior Subordinated Debt includes the indebtedness of the Company issued
under the Subordinated Indenture between the Company and Chemical Trust Company
of California, as successor trustee, dated as of June 15, 1984, as amended by
the First Supplemental Indenture, dated as of May 15, 1987, and as further
amended by the Second Supplemental Indenture, dated as of September 30, 1987;
the Subordinated Indenture between the Company and Bankers Trust Company, as
trustee, dated as of July 15, 1988; the Subordinated Indenture between the
Company and Chemical Trust Company of California, as successor trustee, dated as
of September 1, 1990; the Subordinated Indenture between the Company and
Chemical Trust Company of California, as successor trustee, dated as of November
1, 1991, as amended by the First Supplemental Indenture, dated as of September
8, 1992; the Subordinated Indenture between the Company's predecessor and The
Chase Manhattan Bank, as successor trustee, dated as of March 15, 1987, as
amended by the First Supplemental Indenture, dated as of April 22, 1992; the
Subordinated Indenture between the Company's predecessor and The First National
Bank of Chicago, as trustee, dated as of December 10, 1990, as amended by the
First Supplemental Indenture, dated as of April 22, 1992.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon means the date specified pursuant to
the terms of such Security as the date on which the principal of such Security
or such installment of interest is due and payable, in the case of such
principal, as such date may be shortened or extended as provided pursuant to the
terms of such Security and this Indenture.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by a BankAmerica Trust of an Opinion of
Counsel (as defined in the relevant Trust Agreement) 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
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of the Preferred Securities of such BankAmerica Trust, there is more than an
insubstantial risk that (i) such BankAmerica Trust is, or will be within 90 days
of the date of such Opinion of Counsel, subject to United States Federal income
tax with respect to income received or accrued on the corresponding series of
Securities issued by the Company to such BankAmerica Trust, (ii) interest
payable by the Company on such corresponding series of Securities is not, or
within 90 days of the date of such Opinion of Counsel, will not be, deductible
by the Company, in whole or in part, for United States Federal income tax
purposes or (iii) such BankAmerica Trust is, or will be within 90 days of the
date of such Opinion of Counsel, subject to more than a de minimis amount of
other taxes, duties or other governmental charges.
"Trust Agreement" means the Trust Agreement substantially in the form
attached hereto as Annex A, as amended by the form of Amended and Restated Trust
Agreement substantially in the form attached hereto as Annex B, or substantially
in such form as may be specified as contemplated by Section 3.1 with respect to
the Securities of any series, in each case as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder and, if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss. 77aaa-77bbb), as amended and as in effect on the date as of this
Indenture, except as provided in Section 9.5.
"Trust Securities" has the meaning specified in the first recital of this
Indenture.
"Vice President" when used with respect to the Company, means any duly
appointed vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
SECTION 1.2. Compliance Certificate and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent
(including covenants, compliance with which constitutes a condition precedent),
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with which
constitute a condition precedent), if any, have been complied with, except that
in the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificates provided
pursuant to Section 10.4) shall include:
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(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions, or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are delivered to the
Trustee, and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient
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for any purpose of this Indenture and (subject to Section 6.1) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any such instrument
or writing, or the authority of the Person executing the same, may also be
proved in any other manner which the Trustee deems sufficient and in accordance
with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the Securities Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued upon the transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done
or suffered to be done by the Trustee or the Company in reliance thereon,
whether or not notation of such action is made upon such Security.
(f) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date, provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
(as hereinafter in this Section 1.4(f) provided) by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date.
Nothing in this paragraph shall be construed to prevent the Company from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 1.6.
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The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date, provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 10.6, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
(g) Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.5. Notices, Etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, any holder of Preferred Securities or the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate Trust
office, or
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(2) the Company by the Trustee, any Holder or any holder of Preferred
Securities shall be sufficient for every purpose (except as otherwise provided
in Section 5.1) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. In case, by reason of
the suspension of or irregularities in regular mail service or for any other
reason, it shall be impossible or impracticable to mail notice of any event to
Holders when said notice is required to be given pursuant to any provision of
this Indenture or of the relevant Securities, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice. Where this Indenture provides for notice in
any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.7. Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 1.8. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, the holders of Senior Indebtedness, the Holders of the Securities and,
to the extent expressly provided in Sections 5.2, 5.8, 5.9, 5.11, 5.13, 9.1 and
9.2, the holders of Preferred Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of California[, except that the rights,
duties and obligations of the Trustee shall be governed by and construed in
accordance with the laws of the State of New York].
SECTION 1.13. Non-Business Days.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or the Securities) payment of interest or
principal (and premium, if any) need not be made on such date, but may be made
on the next succeeding Business Day (and no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, until such next succeeding Business Day 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 Interest Payment Date or Redemption Date or at the
Stated Maturity).
ARTICLE II
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities of each series and the Trustee's certificate of
authentication shall be in substantially the forms set forth in this Article, or
in such other form or forms as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with applicable tax laws or the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 with respect to the authentication and
delivery of such Securities.
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The Trustee's certificate of authentication shall be substantially in the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods, if required by any securities
exchange on which the Securities may be listed, on a steel engraved border or
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such securities.
SECTION 2.2. Form of Face of Security.
BANKAMERICA CORPORATION
(Title of Security)
No. $
BANKAMERICA CORPORATION, a corporation organized and existing under the
laws of Delaware (hereinafter called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _________________, or registered assigns,
the principal sum of ______________ Dollars on _________________, _____ [;
provided that the Company may (i) shorten the Stated Maturity of the principal
of this Security to a date not earlier than __________, and (ii) extend the
Stated Maturity of the principal of this Security at any time on one or more
occasions, subject to certain conditions specified in Section 3.14 of the
Indenture, but in no event to a date later than _____________]. The Company
further promises to pay interest on said principal sum from
, or from the most recent interest payment date (each such date, an
"Interest Payment Date") on which interest has been paid or duly provided for,
[monthly] [quarterly] [semi-annually] [if applicable, insert--(subject to
deferral as set forth herein)] in arrears on [insert applicable Interest Payment
Dates] of each year, commencing , , at the rate of % per
annum, until the principal hereof shall have become due and payable, [if
applicable, insert--plus Additional Interest, if any,] until the principal
hereof is paid or duly provided for or made available for payment [if
applicable, insert--and on any overdue principal and (without duplication and to
the extent that payment of such interest is enforceable under applicable law) on
any overdue installment of interest at the rate of % per annum, compounded
[monthly] [quarterly] [semi-annually]]. The amount of interest payable for any
period less than a full interest period shall be computed on the basis of twelve
30-day months and a 360-day year and the actual number of days elapsed in a
partial month in a period. The amount of interest payable for any full interest
period shall be computed by dividing the rate per annum by [twelve][four][two].
In the event that any date on which interest is payable on this Security is not
a Business Day, then a payment of the interest 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
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 the payment was originally payable. A "Business Day"
shall mean any day other than (i) a Saturday or Sunday, (ii) a day on which
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banking institutions in The City of New York are authorized or required by law
or executive order to remain closed or (iii) a day on which the Corporate Trust
Office of the Trustee [if applicable, insert--, or the principal office of the
Property Trustee under the Trust Agreement hereinafter referred to for
[BankAmerica Capital ,]] is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities is registered at the close of
business on the Regular Record Date for such interest installment, which shall
be the [insert definition of Regular Record Dates]. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has occurred and is
continuing, the Company shall have the right at any time during the term of this
Security to defer payment of interest on this Security, at any time or from time
to time, for up to consecutive [monthly] [quarterly] [semi-annual] interest
payment periods with respect to each deferral period (each an "Extension
Period"), during which Extension Periods the Company shall have the right to
make partial payments of interest on any Interest Payment Date, and at the end
of which the Company shall pay all interest then accrued and unpaid (together
with Additional Interest thereon to the extent permitted by applicable law);
provided, however, that no Extension Period shall extend beyond the Stated
Maturity of the principal of this Security; provided, further, that during any
such Extension Period, the Company shall not, and shall not permit any
Subsidiary of the Company 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 Company'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 Company that rank pari passu in all respects with or junior in
interest to this Security or make any guarantee payments with respect to any
guarantee by the Company of the debt securities of any Subsidiaries of the
Company if such guarantee ranks pari passu with or junior in interest to this
Security (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, the issuance of any Common Stock or any class or series of preferred stock
of the Company under any Rights Plan in the future or the redemption or
repurchase of any rights distributed pursuant to a Rights Plan, (c) payments
under any BankAmerica Guarantee, and (d) purchases of Common Stock related to
the issuance of Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
provided that no Extension Period shall exceed _____ consecutive [months]
[quarters] [semi-annual periods] or extend beyond the Stated Maturity of the
principal of this Security. Upon the termination of any such Extension Period
and upon the payment of all amounts then due on any Interest Payment Date, the
Company 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
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thereof. The Company shall give the Holder of this Security and the Trustee
notice of its election to begin any Extension Period at least one Business Day
prior to the next succeeding Interest Payment Date on which interest on this
Security would be payable but for such deferral [if applicable, insert: or, with
respect to the Securities issued to a BankAmerica Trust, so long as such
Securities are held by such BankAmerica Trust, prior to the earlier of (i) the
next succeeding date on which Distributions on the Preferred Securities would be
payable but for such deferral or (ii) the date the Administrative Trustees are
required to give notice to any securities exchange or other applicable self-
regulatory organization or to holders of such Preferred Securities of the record
date or the date such Distributions are payble, but in any event not less than
one Business Day prior to such record date]. For purposes hereof, neither the
Company's Senior Debt nor its Senior Subordinated Debt shall be deemed to be
pari passu with this Security.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert--; provided, however, that at the option of
the Company payment of interest may be made (i) by check mailed to the address
of the Person entitled thereto as such address shall appear in the Securities
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated by the Person entitled thereto as
specified in the Securities Register].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and junior in right of payments to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such actions as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes. Each
Holder hereof, by his acceptance hereof, waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
BANKAMERICA CORPORATION
By:
----------------------------------
[President, Vice President, Treasurer
or Assistant Treasurer]
Attest:
- -------------------------------------------------
[Secretary or Assistant Secretary]
SECTION 2.3. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under a Junior Subordinated Indenture, dated as of ___________, 1996
(herein called the "Indenture"), between the Company and Bankers Trust Company,
as Trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to $ ].
-------------
All terms used in this Security that are defined in the Indenture [if
applicable, insert--or in the Amended and Restated Trust Agreement, dated as of
_________________, as amended (the "Trust Agreement"), for [BankAmerica Capital
____________,] among BANKAMERICA CORPORATION, as Depositor, and the Trustees
named therein, shall have the meanings assigned to them in the Indenture [if
applicable, insert--or the Trust Agreement, as the case may be].
[If applicable, insert--The Company may at any time, at its option, on or
after _________, ____, and subject to the terms and conditions of Article XI of
the Indenture, redeem this Security in whole at any time or in part from time to
time, without premium or penalty, at a redemption price equal to 100% of the
principal amount thereof plus accrued and unpaid interest [if applicable,
insert--including Additional Interest, if any] to the Redemption Date.]
[If applicable, insert-The Company may, at its option, on or after
_________, ____, and subject to the terms and conditions of Article XI of the
Indenture, redeem this Security in whole at any time or in part from time to
time, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed during the 12-month period beginning
- ----------,
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<PAGE>
Redemption
Year Price
--------- -----------------
and at 100% on or after _________, ____, together in the case of any such
redemption with accrued interest to but excluding the date fixed for
redemption.]
[If applicable, insert--Upon the occurrence and during the continuation of
a Tax Event or Capital Treatment Event in respect of a BankAmerica Trust, the
Company may, at its option, [at any time][before _________, ____ and] within 90
days of the occurrence of such Tax Event or Capital Treatment Event redeem this
Security, in whole but not in part, subject to the provisions of Section 11.7
and the other provisions of Article XI of the Indenture, at a redemption price
equal to [describe formulation].]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
The Indenture contains provisions for satisfaction and discharge of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
Company and the Trustee at any time to enter into a supplemental indenture or
indentures for the purpose of modifying in any manner the rights and obligations
of the Company and of the Holders of the Securities, with the consent of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series to be affected by such supplemental indenture. The
Indenture also contains provisions permitting Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
[If the Security is not a Discount Security,--As provided in and subject to
the provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of this series may declare the
principal amount of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a BankAmerica Trust, if upon an Event of
19
<PAGE>
Default, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of this series fails to declare the principal of all
the Securities of this series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount of the Preferred Securities of such
BankAmerica Trust then outstanding shall have such right by a notice in writing
to the Company and the Trustee; and upon any such declaration the principal
amount of and the accrued interest (including any Additional Interest) on all
the Securities of this series shall become immediately due and payable, provided
that the payment of principal and interest (including any Additional Interest)
on such Securities shall remain subordinated to the extent provided in Article
XIII of the Indenture.]
[If the Security is a Discount Security,--As provided in and subject to the
provisions of the Indenture, if an Event of Default with respect to the
Securities of this series at the time Outstanding occurs and is continuing, then
and in every such case the Trustee or the Holders of not less than such portion
of the principal amount as may be specified in the terms of this series may
declare an amount of principal of the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided that, in the case of the Securities of this
series issued to a BankAmerica Trust, if upon an Event of Default, the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of this series fails to declare the principal of all the Securities
of this series to be immediately due and payable, the holders of at least 25% in
aggregate Liquidation Amount of the Preferred Securities of such BankAmerica
Trust then outstanding shall have such right by a notice in writing to the
Company and the Trustee. Such amount shall be calculated by the Company and
shall be equal to--insert formula for determining the amount. Upon any such
declaration, such amount of the principal of and the accrued interest (including
any Additional Interest) on all the Securities of this series shall become
immediately due and payable, provided that the payment of principal and interest
(including any Additional Interest) on such Securities shall remain subordinated
to the extent provided in Article XIII of the Indenture. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any
overdue principal and overdue interest (in each case to the extent that the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and interest, if any,
on this Security shall terminate.]
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Securities Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained under Section 10.2 of the Indenture duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
20
<PAGE>
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee shall treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are issuable only in registered form without
coupons in minimum denominations of $[25] and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of such series of a different authorized denomination, as
requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States Federal, state and local
tax purposes it is intended that this Security constitute indebtedness.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA[, EXCEPT THAT THE RIGHTS,
DUTIES AND OBLIGATIONS OF THE TRUSTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK].
SECTION 2.4. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3, bear a legend in substantially the following
form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY."
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SECTION 2.5. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
Bankers Trust Company
as Trustee
By:
-----------------------------------
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall distinguish the
Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.6 and except for any
Securities which, pursuant to Section 3.3, are deemed never to have been
authenticated and delivered hereunder); provided, however, that the authorized
aggregate principal amount of such series may be increased above such amount by
a Board Resolution to such effect;
(c) the Stated Maturity or Maturities on which the principal of the
Securities of such series is payable or the method of determination thereof;
(d) the rate or rates, if any, at which the Securities of such series shall
bear interest, if any, the rate or rates and extent to which Additional
Interest, if any, shall be payable in respect of any Securities of such series,
the Interest Payment Dates on which such interest shall be payable, the right,
pursuant to Section 3.11 or as otherwise set forth therein, of the Company to
defer or extend an Interest Payment Date, and the Regular Record Date for the
interest payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
22
<PAGE>
(e) the place or places where the principal of (and premium, if any) and
interest on the Securities of such series shall be payable, the place or places
where the Securities of such series may be presented for registration of
transfer or exchange, and the place or places where notices and demands to or
upon the Company in respect of the Securities of such series may be made;
(f) the period or periods within or the date or dates on which, if any, the
price or prices at which and the terms and conditions upon which the Securities
of such series may be redeemed, in whole or in part, at the option of the
Company;
(g) the obligation or the right, if any, of the Company to redeem, repay or
purchase the Securities of such series pursuant to any sinking fund,
amortization or analogous provisions, or at the option of a Holder thereof, 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 Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligation;
(h) the denominations in which any Securities of such series shall be
issuable, if other than denominations of $25 and any integral multiple thereof;
(i) if other than 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 Securities of the series shall be payable, or in which the
Securities of the series shall be denominated and the manner of determining the
equivalent thereof in Dollars for purposes of the definition of Outstanding;
(j) the additions, modifications or deletions, if any, in the Events of
Default or covenants of the Company set forth herein with respect to the
Securities of such series;
(k) if other than the principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with respect to the
Securities of such series as shall be necessary to permit or facilitate the
issuance of the Securities of such series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons;
(m) any index or indices used to determine the amount of payments of
principal of and premium, if any, on the Securities of such series or the manner
in which such amounts will be determined;
(n) whether the Securities of the series, or any portion thereof, shall
initially be issuable in the form of a temporary Global Security representing
all or such portion of the Securities of such series and provisions for the
exchange of such temporary Global Security for definitive Securities of such
series;
(o) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such case,
the respective Depositories for such
23
<PAGE>
Global Securities, the form of any legend or legends which shall be borne by any
such Global Security in addition to or in lieu of that set forth in Section 2.4
and any circumstances in addition to or in lieu of those set forth in Section
3.5 in which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or in
part may be registered, in the name or names of Persons other than the
Depository for such Global Security or a nominee thereof;
(p) the appointment of any Paying Agent or Agents for the Securities of
such series;
(q) the terms of any right to convert or exchange Securities of such series
into any other securities or property of the Company, and the additions or
changes, if any, to this Indenture with respect to the Securities of such series
to permit or facilitate such conversion or exchange;
(r) the form or forms of the Trust Agreement, Amended and Restated Trust
Agreement and Guarantee Agreement, if different from the forms attached hereto
as Annexes A, B and C, respectively;
(s) the relative degree, if any, to which the Securities of the series
shall be senior to or be subordinated to other series of Securities in right of
payment, whether such other series of Securities are Outstanding or not; and
(t) any other terms of the Securities of such series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided herein or in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article XIII.
Unless otherwise provided with respect to the Securities of any series, at
the option of the Company, interest on the Securities of any series that bears
interest may be paid (i) by mailing a check to the address of the person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer in immediately available funds at such place and to such
account as may be designated by the person entitled thereto as specified in the
Security Register.
SECTION 3.2. Denominations.
The Securities of each series shall be in registered form without coupons
and shall be issuable in denominations of $25 and any integral multiple thereof,
unless otherwise specified as contemplated by Section 3.1.
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<PAGE>
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its President,
one of its Vice Presidents, its Treasurer or an Assistant Treasurer under its
corporate seal reproduced or impressed thereon and attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Securities of any series executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms of
the Securities of the series have been established by or pursuant to one or more
Board Resolutions as permitted by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 2.1, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 3.1, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 3.1 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
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<PAGE>
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any denomination, substantially of the tenor of the
definitive Securities of such series in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, the temporary Securities shall
be exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for that purpose
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor one or more definitive Securities
of the same series, of any authorized denominations having the same Original
Issue Date and Stated Maturity and having the same terms as such temporary
Securities. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
SECTION 3.5. Registration, Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at the office
or agency of the Company designated for that purpose the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more
26
<PAGE>
new Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms.
At the option of the Holder, Securities may be exchanged for other
Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall (if
so required by the Company or the Securities Registrar) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
transfer or exchange of Securities.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depository designated for such Global Security
or a nominee thereof and delivered to such Depository or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depository for such Global Security or
a nominee thereof unless (A) such Depository (i) has notified the Company
that it is unwilling or unable to continue as Depository for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act at a time when the Depository is required to be so registered to
act as depositary, in each case unless the Company has approved a successor
Depository within 90 days, (B) there shall have occurred and be continuing an
Event of Default with respect to such Global Security, (C) the Company in its
sole discretion determines that such Global Security will be so exchangeable
or transferable or (D) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this
purpose as contemplated by Section 3.1.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depository for such Global Security shall direct.
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<PAGE>
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 3.4, 3.6, 9.6 or
11.6 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depository for such Global Security or a nominee
thereof.
Neither the Company nor the Trustee shall be required, pursuant to the
provisions of this Section, (a) to issue, transfer or exchange any Security of
any series during a period beginning at the opening of business 15 days before
the day of selection for redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of notice of redemption or
(b) to transfer or exchange any Security so selected for redemption in whole or
in part, except, in the case of any Security to be redeemed in part, any portion
thereof not to be redeemed.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same issue
and series of like tenor and principal amount, having the same Original Issue
Date and Stated Maturity, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security, and (ii)
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security, a new Security of the same issue and
series of like tenor and principal amount, having the same Original Issue Date
and Stated Maturity as such destroyed, lost or stolen Security, and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date, shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
in respect of Securities of such series, except that, unless otherwise provided
in the Securities of such series, interest payable on the Stated Maturity of the
principal of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.1 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not timely paid or duly
provided for, on any Interest Payment Date for Securities of such series (herein
called "Defaulted Interest"), shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series in respect of which
interest is in default (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in a newspaper, customarily
published in the English language on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series
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(or their respective Predecessor Securities) are registered on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of the series in respect of which interest is in default
may be listed and, upon such notice as may be required by such exchange (or by
the Trustee if the Securities are not listed), if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 3.8. Persons Deemed Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.9. Cancellation.
All Securities surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Securities and Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities shall be destroyed by the
Trustee and the Trustee shall deliver to the Company a certificate of such
destruction.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.1 for Securities
of any series, interest on the Securities of each series for any partial period
shall 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 such period, and interest on the
Securities of each series for a full period shall be computed by dividing the
rate per annum by the number of interest periods that together constitute a full
twelve months.
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SECTION 3.11. Deferrals of Interest Payment Dates.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, so long as no Event of Default has
occurred and is continuing, the Company shall have the right, at any time during
the term of such series, from time to time to defer the payment of interest on
such Securities for such period or periods as may be specified as contemplated
by Section 3.1 (each, an "Extension Period") during which Extension Periods the
Company shall have the right to make partial payments of interest on any
Interest Payment Date. No Extension Period shall end on a date other than an
Interest Payment Date. At the end of any such Extension Period the Company shall
pay all interest then accrued and unpaid on the Securities (together with
Additional Interest thereon, if any, at the rate specified for the Securities of
such series to the extent permitted by applicable law); provided, however, that
no Extension Period shall extend beyond the Stated Maturity of the principal of
the Securities of such series; provided, further, that during any such Extension
Period, the Company shall not, and shall not permit any Subsidiary 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 Company'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 Company that rank pari
passu in all respects with or junior in interest to the Securities of such
series or make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company if such
guarantee ranks pari passu with or junior in interest to the securities of such
series (other than (a) dividends or distributions in Common Stock, (b) any
declaration of a dividend in connection with the implementation of a Rights
Plan, or the issuance of any Common Stock of any class or series of preferred
stock of the Company under any Rights Plan in the future or the redemption or
repurchase of any rights pursuant thereto, (c) payments under any BankAmerica
Guarantee, and (d) purchases of Common Stock related to the issuance of Common
Stock or rights under any of the Company's benefit plans for its directors,
officers or employees). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period shall exceed the period or periods specified in such Securities
or extend beyond the Stated Maturity of the principal of such Securities. Upon
the termination of any Extension Period and upon the payment of all amounts then
due on any Interest Payment Date, the Company 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 Company shall give
the Holders of the Securities of such series and the Trustee notice of its
election to begin any such Extension Period at least one Business Day prior to
the next succeeding Interest Payment Date on which interest on Securities of
such series would be payable but for such deferral or, with respect to the
Securities of a series issued to a BankAmerica Trust, so long as such Securities
are held by such BankAmerica Trust, prior to the earlier of (i) the next
succeeding date on which Distributions on the Preferred Securities of such
BankAmerica Trust would be payable but for such deferral or (ii) the date the
Administrative Trustees of such BankAmerica Trust are required to give notice to
any securities exchange or other applicable self-regulatory organization or to
holders of such Preferred Securities 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. For purposes hereof, neither the Company's Senior Debt nor
its Senior Subordinated Debt shall be deemed to be pari passu with the
Securities.
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The Trustee, at the expense of the Company, shall promptly give notice of
the Company's election to begin any such Extension Period to the Holders of the
Outstanding Securities of such series.
SECTION 3.12. Right of Set-Off.
With respect to the Securities of a series issued to a BankAmerica Trust,
notwithstanding anything to the contrary herein, the Company shall have the
right to set-off any payment it is otherwise required to make thereunder in
respect of any such Security to the extent the Company has theretofore made, or
is concurrently on the date of such payment making, a payment under the
BankAmerica Guarantee relating to such Security or under Section 5.8 hereof.
SECTION 3.13. Agreed Tax Treatment.
Each Security issued hereunder shall provide that the Company and, by its
acceptance of a Security or a beneficial interest therein, the Holder of, and
any Person that acquires a beneficial interest in, such Security agree that for
United States Federal, state and local tax purposes it is intended that such
Security constitutes indebtedness.
SECTION 3.14. Shortening or Extension of Stated Maturity.
If specified as contemplated by Section 2.1 or Section 3.1 with respect to
the Securities of a particular series, the Company shall have the right to (i)
shorten the Stated Maturity of the principal of the Securities of such series at
any time to any date not earlier than the first date on which the Company has
the right to redeem the Securities of such series, and (ii) extend the Stated
Maturity of the principal of the Securities of such series at any time at its
election for one or more periods, but in no event to a date later than the 49th
anniversary of the first Interest Payment Date following the Original Issue Date
of the Securities of such series; provided that, if the Company elects to
exercise its right to extend the Stated Maturity of the principal of the
Securities of such series pursuant to clause (ii), above, at the time such
election is made and at the time of extension (A) the Company is not in
bankruptcy, otherwise insolvent or in liquidation, (B) the Company is not in
default in the payment of any interest or principal on such Securities, (C) in
the case of any series of Securities issued to a BankAmerica Trust, such
BankAmerica Trust is not in arrears on payments of Distributions on the
Preferred Securities issued by such BankAmerica Trust and no deferred
Distributions are accumulated and (D) such Securities are rated not less than
BBB- by S&P or Baa3 by Moody's or the equivalent by any other nationally
recognized statistical rating organization. In the event the Company elects to
shorten or extend the Stated Maturity of the Series A Subordinated Debentures,
it shall give notice to the Trustee, and the Trustee shall give notice of such
shortening or extension to the Holders, no less than 30 and no more than 60 days
prior to the effectiveness thereof.
SECTION 3.15. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption or other related material as a convenience to Holders; provided
that any such notice or other related material may state that no representation
is made as to the correctness of such numbers either as printed
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on the Securities or as contained in any notice of redemption or other related
material and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year of the date of deposit, or
(iii) are to be called for redemption within one year by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of Clause (B) (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee
as trust funds in trust for such purpose an amount in the
currency or currencies in which the Securities of such series are
payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
(including any Additional Interest) to the date of such deposit
(in the case of Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
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(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, or the earlier
resignation or removal of the Trustee or any Authenticating Agent, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by the Trustee, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default," wherever used herein with respect to the Securities of
any series, means any one of the following events that has occurred and is
continuing (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):
(1) default in the payment of any interest upon any Security of that
series, including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension Period); or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the performance, or breach, in any material respect, of any
covenant of the Company in this Indenture (other than a covenant a default in
the performance of which or the breach of which is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
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least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied; or
(4) the entry of a decree or order for relief in respect of the Company by
a court having jurisdiction in the premises in an involuntary case under Federal
or State bankruptcy laws, as now or hereafter constituted, and the continuance
of any such decree or order unstayed and in effect for a period of 60
consecutive days; or
(5) the commencement by the Company of a voluntary case under Federal or
State bankruptcy laws, as now or hereafter constituted, or the consent by the
Company to the entry of a decree or order for relief in an involuntary case
under any such laws; or
(6) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.1(4) or 5.1(5)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), provided that, in the case of
the Securities of a series issued to a BankAmerica Trust, if, upon an Event of
Default, the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series fail to declare the principal of all
the Securities of that series to be immediately due and payable, the holders of
at least 25% in aggregate Liquidation Amount (as defined in the related Trust
Agreement) of the corresponding series of Preferred Securities then outstanding
shall have such right by a notice in writing to the Company and the Trustee; and
upon any such declaration such principal amount (or specified portion thereof)
of and the accrued interest (including any Additional Interest) on all the
Securities of such series shall become immediately due and payable. Payment of
principal and interest (including any Additional Interest) on such Securities
shall remain subordinated to the extent provided in Article XIII notwithstanding
that such amount shall become immediately due and payable as herein provided. If
an Event of Default specified in Section 5.1(4) or 5.1(5) with respect to
Securities of any series at the time Outstanding occurs, the principal amount of
all the Securities of that series (or, if the Securities of that series are
Discount Securities, such portion of the principal amount of such Securities as
may be specified by the terms of that series) shall automatically, and without
any declaration or other action on the part of the Trustee or any Holder, become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
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(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue installments of interest (including any Additional
Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which has
become due solely by such acceleration, have been cured or waived as provided in
Section 5.13.
In the case of Securities of a series issued to a BankAmerica Trust, the
holders of a majority in aggregate Liquidation Amount (as defined in the related
Trust Agreement) of the related series of Preferred Securities issued by such
BankAmerica Trust shall also have the right to rescind and annul such
declaration and its consequences by written notice to the Company and the
Trustee, subject to the satisfaction of the conditions set forth in Clauses (1)
and (2) above of this Section 5.2.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
(including any Additional Interest) on any Security when such interest becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (and premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities and
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collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon the Securities,
wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors,
(a) the Trustee (irrespective of whether the principal of the Securities of
any series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of overdue principal (and premium, if any) or
interest (including any Additional Interest)) shall be entitled and empowered,
by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest (including any Additional Interest) owing and
unpaid in respect to the Securities and to file such other papers or
documents as may be necessary or advisable and to take any and all actions
as are authorized under the Trust Indenture Act in order to have the claims
of the Holders and any predecessor to the Trustee under Section 6.7 allowed
in any such judicial proceedings; and
(ii) in particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such
claims and to distribute the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee for distribution in
accordance with Section 5.6, and in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 5.5. Trustee May Enforce Claim Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of all the amounts owing the Trustee and any predecessor Trustee
under Section 6.7, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property on account of principal (or premium,
if any) or interest (including any Additional Interest), upon presentation of
the Securities and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee;
SECOND: Subject to Article XIII, to the payment of the amounts then due and
unpaid upon such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such series of
Securities for principal (and premium, if any) and interest (including any
Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7. Limitation on Suits.
No Holder of any Securities of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
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(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest; Direct Action by Holders of Preferred Securities.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right which is absolute and unconditional to receive
payment of the principal of (and premium, if any) and (subject to Section 3.7)
interest (including any Additional Interest) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such right shall not be impaired without the consent of such
Holder. In the case of Securities of a series issued to a BankAmerica Trust, any
holder of the corresponding series of Preferred Securities issued by such
BankAmerica Trust shall have the right, upon the occurrence of an Event of
Default described in Section 5.1(1) or 5.1(2), to institute a suit directly
against the Company for enforcement of payment to such holder of principal of
(premium, if any) and (subject to Section 3.7) interest (including any
Additional Interest) on the Securities having a principal amount equal to the
aggregate Liquidation Amount (as defined in the Trust Agreement under which such
BankAmerica Trust is formed) of such Preferred Securities of the corresponding
series held by such holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee, any Holder or any holder of Preferred Securities has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee, such Holder or such holder of
Preferred Securities, then and in every such case the Company, the Trustee, the
Holders and such holder of Preferred Securities shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee, the Holders and the holders of Preferred Securities shall continue as
though no such proceeding had been instituted.
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SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in the last paragraph of Section 3.6, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee, any Holder of any Security or any
holder of any Preferred Security to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to
the Holders and the right and remedy given to the holders of Preferred
Securities by Section 5.8 may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee, the Holders or the holders of Preferred
Securities, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, determine that the proceeding so directed
would be unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series affected thereby and, in the case of any
Securities of a series issued to a BankAmerica Trust, the holders of a majority
in aggregate Liquidation Amount (as defined in the related Trust Agreement) of
the Preferred Securities issued by such BankAmerica Trust, may waive any past
default hereunder and its consequences with respect to such series except a
default:
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(1) in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Any such waiver shall be deemed to be on behalf of the Holders of all the
Securities of such series or, in the case of a waiver by holders of Preferred
Securities issued by such BankAmerica Trust, by all holders of Preferred
Securities issued by such BankAmerica Trust.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest (including any
Additional Interest) on any Security on or after the respective Stated
Maturities expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
Holders pursuant to Section 5.12 relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series.
(d) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
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(e) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.2. Notice of Defaults.
Within 90 days after actual knowledge by a Responsible Officer of the
Trustee of the occurrence of any default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders of
Securities of such series, as their names and addresses appear in the Securities
Register, notice of such default, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of Securities of such series; and provided, further,
that, in the case of any default of the character specified in Section 5.1(3),
no such notice to Holders of Securities of such series shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, Security or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity
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against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
Security or other paper or document, but the Trustee in its discretion may make
such inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
[(h) the Trustee shall not be under any obligation to take any action that
is discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any Event of Default
unless either (i) a Responsible Officer of the Trustee shall have actual
knowledge thereof or (2) the Trustee shall have received notice thereof in
accordance with Section 1.5(1) hereof from the Company or a Holder; and
(j) no permissive power or authority available to the Trustee shall be
construed as a duty.]
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.8 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder in such amounts as the Company and the Trustee
shall agree from time to time (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
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 hereunder.
The obligations of the Company under this Section 6.7 shall survive the
termination of the Indenture or the earlier resignation or removal of the
Trustee.
To secure the Company's payment obligations in this Section, the Company
and the Holders agree that the Trustee shall have a lien prior to the Securities
on all money or property held or collected by the Trustee. Such lien shall
survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 5.1(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or any successor statute.
SECTION 6.8. Disqualification; Conflicting Interests.
The Trustee for the Securities of any series issued hereunder shall be
subject to the provisions of Section 310(b) of the Trust Indenture Act. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of said Section 310(b).
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
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(a) a corporation organized and doing business under the laws of the United
States of America or of any State or Territory or the District of Columbia,
authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal, State, Territorial or District of
Columbia authority, or
(b) a corporation or other Person organized and doing business under the
laws of a foreign government that is permitted to act as Trustee pursuant to a
rule, regulation or order of the Commission, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
authority of such foreign government or a political subdivision thereof
substantially equivalent to supervision or examination applicable to United
States institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then,
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article. Neither the Company nor any Person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and shall fail
to resign after written request therefor by the Company or by any such Holder,
or
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(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company, acting pursuant to the authority of a
Board Resolution, may remove the Trustee with respect to all Securities, or
(ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee with respect to the Securities of
that or those series. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and supersede
the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to the
Holders of Securities of such series as their names and addresses appear in the
Securities Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an instrument in writing or an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such instrument in writing or supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such instrument in writing or supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts, and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case any
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor Trustee or in
the name of such successor Trustee, and in
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all cases the certificate of authentication shall have the full force which it
is provided anywhere in the Securities or in this Indenture that the certificate
of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.6, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State or Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided
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in Section 1.6 to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the rights,
powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provision of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities referred to in the within mentioned
Indenture.
Dated:
Bankers Trust Company
As Trustee
By:
---------------------------
As Authenticating Agent
By:
----------------------------
Authorized Officer
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record Date in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Securities Registrar.
SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided in the Trust
Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act, at the times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than 60 days after December 31 in
each calendar year, commencing 60 days after the first December 31 after the
first issuance of Securities under this Indenture.
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(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange upon which any
Securities are listed and also with the Commission. The Company will notify the
Trustee when any Securities are listed on any securities exchange.
SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and with the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided in the Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with
the Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Company shall continue to file with the Commission and provide the
Trustee with the annual reports and the information, documents and other reports
which are specified in Sections 13 and 15(d) of the Exchange Act. The Company
also shall comply with the other provisions of Trust Indenture Act Section
314(a).
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company 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 Company or
convey, transfer or lease its properties and assets substantially as an entirety
to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the corporation formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust
organized and existing under the laws of the United States of America or any
State or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest (including any Additional Interest) on all the Securities
and the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing;
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(3) in the case of the Securities of a series issued to a BankAmerica
Trust, such consolidation, merger, conveyance, transfer or lease is permitted
under the related Trust Agreement and BankAmerica Guarantee and does not give
rise to any breach or violation of the related Trust Agreement or BankAmerica
Guarantee; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and any such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and the Trustee, subject to Section 6.1,
may rely upon such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2. Successor Corporation Substituted.
Upon any consolidation or merger by the Company with or into any other
Person, or any conveyance, transfer or lease by the Company of its properties
and assets substantially as an entirety to any Person in accordance with Section
8.1, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Securities and may be
dissolved and liquidated.
Such successor Person may cause to be signed, and may issue either in its
own name or in the name of the Company, any or all of the Securities issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee; and, upon the order of such successor Person instead
of the Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication pursuant to such provisions and
any Securities which such successor Person thereafter shall cause to be signed
and delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form may be made in the Securities thereafter to be
issued as may be appropriate.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and the
assumption by any such successor of the covenants of the Company herein and in
the Securities contained; or
(2) to convey, transfer, assign, mortgage or pledge any property to or with
the Trustee or to surrender any right or power herein conferred upon the
Company; or
(3) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 or 3.1; or
(4) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(5) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default are
to be for the benefit of less than all series of Securities, stating that such
additional Events of Default are expressly being included solely for the benefit
of such series); or
(6) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (a) shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision or (b) shall not apply to any Outstanding Securities; or
(7) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (7) shall not
adversely affect the interest of the Holders of Securities of any series in any
material respect or, in the case of the Securities of a series issued to a
BankAmerica Trust and for so long as any of the corresponding series of
Preferred Securities issued by such BankAmerica Trust shall remain outstanding,
the holders of such Preferred Securities; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
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(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.11 or as otherwise
specified as contemplated by Section 2.1 or Section 3.1 with respect to the
deferral of the payment of interest on the Securities of any series, change the
Stated Maturity of the principal of, or any installment of interest (including
any Additional Interest) on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or reduce any premium payable upon the
redemption thereof, or reduce the amount of principal of a Discount Security
that would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.2, or change the place of payment where, or the
coin or currency in which, any Security or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.5, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Security affected thereby;
provided, further, that, in the case of the Securities of a series issued to a
BankAmerica Trust, so long as any of the corresponding series of Preferred
Securities issued by such BankAmerica Trust remains outstanding, (i) no such
amendment shall be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of this Indenture shall
occur, and no waiver of any Event of Default or compliance with any covenant
under this Indenture shall be effective, without the prior consent of the
holders of at least a majority of the aggregate Liquidation Amount of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Securities of such series and all accrued and, subject
to Section 3.7, unpaid interest (including any Additional Interest) thereon have
been paid in full and (ii) no amendment shall be made to Section 5.8 of this
Indenture that would impair the rights of the holders of Preferred Securities
provided therein without the prior consent of the holders of each Preferred
Security then outstanding unless and until the principal (and premium, if any)
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of the Securities of such series and all accrued and (subject to Section 3.7)
unpaid interest (including any Additional Interest) thereon have been paid in
full.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities or Preferred Securities,
or which modifies the rights of the Holders of Securities or holders of
Preferred Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities or holders of Preferred Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture, and that
all conditions precedent have been complied with. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise or
that may subject it to any liability.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
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ARTICLE X
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities, an office or agency where Securities of that series may be presented
or surrendered for payment and an office or agency where Securities of that
series may be surrendered for transfer or exchange and where notices and demands
to or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company initially appoints the Trustee, acting
through its Corporate Trust Office, as its agent for said purposes. The Company
will give prompt written notice to the Trustee of any change in the location of
any such office or agency. If at any time the Company shall fail to maintain
such office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in each Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation and any change in
the location of any such office or agency.
SECTION 10.3. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to 10:00 a.m. New York City time on each due date of the principal of or
interest on any Securities, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal and
premium (if any) or interest, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its failure so to act.
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The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal (and
premium, if any) or interest;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid on Company Request to the Company, or (if then held by the Company) shall
(unless otherwise required by mandatory provision of applicable escheat or
abandoned or unclaimed property law) be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.4. Statement as to Compliance.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate executed by the principal executive officer, principal financial
officer or principal accounting officer of the Company covering the preceding
calendar year, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance, observance or fulfillment
of or compliance
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with any of the terms, provisions, covenants and conditions of this Indenture,
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge. For the purpose of
this Section 10.4, compliance shall be determined without regard to any grace
period (other than an Extension Period) or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 10.5. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition provided pursuant to Section 3.1, 9.1(3) or 9.1(4) with respect to
the Securities of any series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
SECTION 10.6. Additional Sums.
In the case of the Securities of a series issued to a BankAmerica Trust, so
long as no Event of Default has occurred and is continuing and except as
otherwise specified as contemplated by Section 2.1 or Section 3.1, in the event
that (i) a BankAmerica Trust is the Holder of all of the Outstanding Securities
of such series and (ii) a Tax Event in respect of such BankAmerica Trust shall
have occurred and be continuing, the Company shall pay to such BankAmerica Trust
(and its permitted successors or assigns under the related Trust Agreement) as
Holder of the Securities of such series for so long as such BankAmerica Trust
(or its permitted successor or assignee) is the registered holder of any
Securities of such series, such additional sums as may be necessary in order
that the amount of Distributions (including any Additional Amounts (as defined
in such Trust Agreement)) paid by such BankAmerica Trust on the related
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
Additional Taxes (the "Additional Sums"). Whenever in this Indenture or the
Securities there is a reference in any context to the payment of principal of or
interest on the Securities, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made.
SECTION 10.7. Additional Covenants.
The Company covenants and agrees with each Holder of Securities of each
series that it shall not, and it shall not permit any Subsidiary of the Company
to, (a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock, or (b) make any payment of principal of or interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu in all respects with or junior in interest to the
Securities of such series or make
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any guarantee payments with respect to any guarantee by the Company of debt
securities of any subsidiary of the Company if such guarantee ranks pari passu
with or junior in interest to the Securities (other than (a) dividends or
distributions in Common Stock, (b) any declaration of a dividend in connection
with the implementation of a Rights Plan, the issuance of any Common Stock of
any class or series of preferred stock of the Company under any Rights Plan in
the future or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under any BankAmerica Guarantee, and (d) purchases of Common Stock
related to the issuance of Common Stock or rights under any of the Company's
benefit plans for its directors, officers or employees) if at such time (i)
there shall have occurred any event of which the Company has actual knowledge
that (A) with the giving of notice or the lapse of time, or both, would
constitute an Event of Default with respect to the Securities of such series and
(B) in respect of which the Company shall not have taken reasonable steps to
cure, (ii) if the Securities of such series are held by a BankAmerica Trust, the
Company shall be in default with respect to its payment of any obligations under
the BankAmerica Guarantee relating to the Preferred Securities issued by such
BankAmerica Trust or (iii) the Company shall have given notice of its election
to begin an Extension Period with respect to the Securities of such series as
provided herein and shall not have rescinded such notice, or such Extension
Period, or any extension thereof, shall be continuing. For purposes hereof,
neither the Company's Senior Debt nor its Senior Subordinated Debt shall be
deemed to be pari passu with the Securities.
The Company also covenants with each Holder of Securities of a series
issued to a BankAmerica Trust (i) to maintain directly or indirectly 100%
ownership of the Common Securities of such BankAmerica Trust; provided, however,
that any permitted successor of the Company hereunder may succeed to the
Company's ownership of such Common Securities, (ii) as holder of the Common
Securities not to voluntarily terminate, wind-up or liquidate such BankAmerica
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 the Securities of such series to the holders
of Preferred Securities in liquidation of such BankAmerica 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 such Trust Agreement, to cause such BankAmerica
Trust to remain classified as a grantor trust and not an association taxable as
a corporation for United States federal income tax purposes.
SECTION 10.8. Original Issue Discount.
On or before December 15 of each year during which any Securities are
outstanding, the Company shall furnish to each Paying Agent such information as
may be reasonably requested by each Paying Agent in order that each Paying Agent
may prepare the information which it is required to report for such year on
Internal Revenue Service Forms 1096 and 1099 pursuant to Section 6049 of the
Internal Revenue Code of 1986, as amended. Such information shall include the
amount of original issue discount includible in income for each $25 of principal
amount at Stated Maturity of outstanding Securities during such year.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1. Applicability of This Article.
Redemption of Securities of any series (whether by operation of a sinking
fund or otherwise) as permitted or required by any form of Security issued
pursuant to this Indenture shall be made in accordance with such form of
Security and this Article; provided, however, that if any provision of any such
form of Security shall conflict with any provision of this Article, the
provision of such form of Security shall govern. Except as otherwise set forth
in the form of Security for such series, each Security of such series shall be
subject to partial redemption only in the amount of $25 or integral multiples
thereof.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of any of the Securities of any particular series and having the
same terms, the Company shall, not less than 30 nor more than 60 days prior to
the Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and, in the case of Securities of a series held by
a BankAmerica Trust, the related Property Trustee of such date and of the
principal amount of Securities of that series to be redeemed and provide the
additional information required to be included in the notice or notices
contemplated by Section 11.4. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities, the Company shall furnish the Trustee with an Officers'
Certificate and an Opinion of Counsel evidencing compliance with such
restriction. The Company shall have received the prior approval of the Federal
Reserve if then required under applicable capital guidelines or policies of the
Federal Reserve prior to redeeming any Securities pursuant hereto.
SECTION 11.3. Selection of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all the Securities of
such series and of a specified tenor are to be redeemed (unless such redemption
affects only a single Security), the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the Trustee,
from the Outstanding Securities of such series and specified tenor not
previously called for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for partial redemption and the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case of
any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed. If the
Company shall so direct, Securities registered in the name of the Company, any
Affiliate or any Subsidiary thereof shall not be included in the Securities
selected for redemption.
SECTION 11.4. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not later than the thirtieth day, and not earlier than the sixtieth day,
prior to the Redemption Date, to each Holder of Securities to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Securities of each series to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price or if the Redemption Price cannot be calculated
prior to the time the notice is required to be sent, the estimate of the
Redemption Price provided pursuant to the Indenture together with a statement
that it is an estimate and that the actual Redemption Price will be calculated
on the third Business Day prior to the Redemption Date (if such an estimate of
the Redemption Price is given, a subsequent notice shall be given as set forth
above setting forth the Redemption Price promptly following the calculation
thereof);
(c) if less than all Outstanding Securities of such particular series and
having the same terms are to be redeemed, the identification (and, in the case
of partial redemption, the respective principal amounts) of the particular
Securities to be redeemed;
(d) that on the Redemption Date, the Redemption Price will become due and
payable upon each such Security or portion thereof, and that interest thereon,
if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be surrendered for
payment of the Redemption Price;
(f) that the redemption is for a sinking fund, if such is the case; and
(g) such other provisions as may be required in respect of the terms of a
particular series of Securities.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall not be
irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
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receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 11.5. Deposit of Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date specified in
the notice of redemption given as provided in Section 11.4, the Company will
deposit with the Trustee or with one or more Paying Agents (or if the Company is
acting as its own Paying Agent, the Company will segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and any accrued interest (including Additional Interest) on, all the
Securities which are to be redeemed on that date.
SECTION 11.6. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.4, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places stated
in such notice at the applicable Redemption Price, together with accrued
interest (including any Additional Interest) to the Redemption Date. On
presentation and surrender of such Securities at a Place of Payment in said
notice specified, the said securities or the specified portions thereof shall be
paid and redeemed by the Company at the applicable Redemption Price, together
with accrued interest (including any Additional Interest) to the Redemption
Date; provided, however, that, unless otherwise specified as contemplated by
Section 3.1, installments of interest whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant record dates according to their terms and the provisions of Section
3.7.
Upon presentation of any Security redeemed in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder thereof, at
the expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the Security so presented and having the same Original Issue Date,
Stated Maturity and terms. If a Global Security is so surrendered, such new
Security (subject to Section 3.5) will also be a new Global Security.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium, if any, on such Security
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.7. Right of Redemption of Securities Initially Issued to a
BankAmerica Trust.
In the case of the Securities of a series initially issued to a BankAmerica
Trust, if specified as contemplated by Section 3.1, the Company, at its option,
may redeem such Securities (i) on or after the date ten years after the Original
Issue Date of such Securities, in whole at any time or in part from time to
time, or (ii) upon the occurrence and during the continuation of a Tax Event or
Capital Treatment Event, prior to the date ten years after the Original Issue
Date of such Securities and within 90 days following the occurrence of such Tax
Event or Capital
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Treatment Event in respect of such BankAmerica Trust, in whole (but not in
part), in each case at a Redemption Price specified as contemplated by Section
3.1.
ARTICLE XII
SINKING FUNDS
SECTION 12.1. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.1 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any sinking fund payment in excess of such minimum amount which is
permitted to be made by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment." If provided for by the terms
of any Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.2. Each sinking fund payment
shall be applied to the redemption (or purchase by tender or otherwise) of
Securities of any series as provided for by the terms of such Securities.
SECTION 12.2. Satisfaction of Sinking Fund Payments with Securities.
In lieu of making all or any part of a mandatory sinking fund payment with
respect to any Securities of a series in cash, the Company may at its option, at
any time no more than 16 months and no less than 45 days prior to the date on
which such sinking fund payment is due, deliver to the Trustee Securities of
such series (together with the unmatured coupons, if any, appertaining thereto)
theretofore purchased or otherwise acquired by the Company, except Securities of
such series that have been redeemed through the application of mandatory or
optional sinking fund payments pursuant to the terms of the Securities of such
series, accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.3. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
such Securities pursuant to the terms of such Securities, the portion thereof,
if any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.1) and the
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portion thereof, if any, which is to be satisfied by delivering and crediting
Securities pursuant to Section 12.2 and will also deliver to the Trustee any
Securities to be so delivered. Such Officers' Certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the cash payment or
payments therein referred to, if any, on or before the succeeding sinking fund
payment date. In the case of the failure of the Company to deliver such
Officers' Certificate (or, as required by this Indenture, the Securities and
coupons, if any, specified in such Officers' Certificate) by the due date
therefor, the sinking fund payment due on the succeeding sinking fund payment
date for such series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of the Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit securities
as provided in Section 12.2 and without the right to make the optional sinking
fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made with respect
to the Securities of any particular series shall be applied by the Trustee (or
by the Company if the Company is acting as its own Paying Agent) on the sinking
fund payment date on which such payment is made (or, if such payment is made
before a sinking fund payment date, on the sinking fund payment date immediately
following the date of such payment) to the redemption of Securities of such
series at the Redemption Price specified in such Securities with respect to the
sinking fund. Any sinking fund moneys not so applied or allocated by the Trustee
(or, if the Company is acting as its own Paying Agent, segregated and held in
trust by the Company as provided in Section 10.3) for such series and together
with such payment (or such amount so segregated) shall be applied in accordance
with the provisions of this Section 12.3. Any and all sinking fund moneys with
respect to the Securities of any particular series held by the Trustee (or if
the Company is acting as its own Paying Agent, segregated and held in trust as
provided in Section 10.3) on the last sinking fund payment date with respect to
Securities of such series and not held for the payment or redemption of
particular Securities of such series shall be applied by the Trustee (or by the
Company if the Company is acting as its own Paying Agent), together with other
moneys, if necessary, to be deposited (or segregated) sufficient for the
purpose, to the payment of the principal of the Securities of such series at
Maturity. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 11.4. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Section 11.6. On or before each sinking fund payment
date, the Company shall pay to the Trustee (or, if the Company is acting as its
own Paying Agent, the Company shall segregate and hold in trust as provided in
Section 10.3) in cash a sum in the currency in which Securities of such series
are payable (except as provided pursuant to Section 3.1) equal to the principal,
premium, if any, and any interest accrued to the Redemption Date for Securities
or portions thereof to be redeemed on such sinking fund payment date pursuant to
this Section 12.3.
Neither the Trustee nor the Company shall redeem any Securities of a series
with sinking fund moneys or mail any notice of redemption of Securities of such
series by operation of the sinking fund for such series during the continuance
of a default in payment of interest, if any, on any Securities of such series or
of any Event of Default (other than an Event of Default occurring as a
consequence of this paragraph) with respect to the Securities of such series,
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except that if the notice of redemption shall have been provided in accordance
with the provisions hereof, the Trustee (or the Company, if the Company is then
acting as its own Paying Agent) shall redeem such Securities if cash sufficient
for that purpose shall be deposited with the Trustee (or segregated by the
Company) for that purpose in accordance with the terms of this Article XII.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such default or
Event of Default, be held as security for the payment of the Securities and
coupons, if any, of such series; provided, however, that in case such default or
Event of Default shall have been cured or waived herein, such moneys shall
thereafter be applied on the next sinking fund payment date for the Securities
of such series on which such moneys may be applied pursuant to the provisions of
this Section 12.3.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the payment of the principal
of (and premium, if any) and interest (including any Additional Interest) on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness.
SECTION 13.2. No Payment When Senior Indebtedness in Default; Payment Over
of Proceeds Upon Dissolution, Etc.
In the event that the Company shall default in the payment of any principal
of (or premium, if any) or interest 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, upon written notice of
such default to the Company by the holders of Senior Indebtedness or any trustee
therefor, 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 on
account of the principal of (or premium, if any) or interest on any of the
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Securities.
In the event of (a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceedings relating
to the Company, its creditors or its property, (b) any proceeding for the
liquidation, dissolution or other winding up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings, (c)
any assignment by the Company for the benefit of creditors or (d) any other
marshalling of the assets of the Company (each such event, if any, herein
sometimes referred to as a "Proceeding"), 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
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distribution, whether in cash, securities or other property, shall be made to
any Holder of any of the Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Company 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 these subordination provisions with respect to the
indebtedness evidenced by the 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 these subordination provisions) be payable or deliverable in
respect of the Securities of any series 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 Proceeding) shall have
been paid in full.
In the event of any Proceeding, after payment in full of all sums owing
with respect to Senior Indebtedness, the Holders of the Securities, together
with the holders of any obligations of the Company ranking on a parity with the
Securities (which for this purpose only shall include the Allocable Amounts of
Senior Subordinated Debt), shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid
principal of (and premium, if any) and interest on the 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 any obligations
of the Company ranking junior to the Securities and such other obligations. In
the event that, notwithstanding the foregoing, any payment or distribution of
any character or any security, whether in cash, securities or other property
(other than securities of the Company 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 these subordination provisions with respect to
the indebtedness evidenced by the 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), shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof and before all 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. In the event of the failure of the Trustee or any Holder
to endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same.
The Trustee and Holders will take such action (including, without
limitation, the delivery of this Indenture to an agent for the holders of Senior
Indebtedness or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Indebtedness at the time outstanding,
be necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
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The provisions of this Section 13.2 shall not impair any rights, interests,
remedies or powers of any secured creditor of the Company in respect of any
security interest the creation of which is not prohibited by the provisions of
this Indenture.
The securing of any obligations of the Company, otherwise raking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.3. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture, or in any
of the Securities, shall prevent (a) the Company at any time, except during the
conditions described in the first paragraph of Section 13.2 or the pendency of
any Proceeding referred to in Section 13.2, from making payments at any time of
principal of (and premium, if any) or interest (including Additional Interest)
on the Securities, or (b) the application by the Trustee of any moneys deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.4. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all amounts due or to become due on all
Senior Indebtedness, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of all indebtedness of the Company which by its express terms is subordinated to
Senior Indebtedness of the Company to substantially the same extent as the
Securities are subordinated to the Senior Indebtedness and is entitled to like
rights of subrogation by reason of any payments or distributions made to holders
of such Senior Indebtedness) to the rights of the holders of such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
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SECTION 13.5. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as between the Company and the Holders of the Securities,
the obligations of the Company, which are absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest (including any Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Indebtedness; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 13.6. Trustee to Effectuate Subordination.
Each Holder of a Security by his or her acceptance thereof authorizes and
directs the Trustee on his or her behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 13.7. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the immediately preceding
paragraph, the holders of Senior Indebtedness may, at any time and from to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
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SECTION 13.8. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least two Business Days
prior to the date upon which by the terms hereof any monies may become payable
for any purpose (including, without limitation, the payment of the principal of
(and premium, if any) or interest (including any Additional Interest) on any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies and to apply
the same to the purpose for which they were received and shall not be affected
by any notice to the contrary which may be received by it within two Business
Days prior to such date.
Subject to the provisions of Section 6.1, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee or attorney-in-fact
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee or attorney-in-fact therefor). In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 13.9. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
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SECTION 13.10. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 13.11. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 13.12. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
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* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BANKAMERICA CORPORATION
By:
-------------------------
Attest:
BANKERS TRUST COMPANY
as Trustee
By:
-------------------------
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Exhibit 4(g)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL I
THIS Certificate of Trust of BankAmerica Capital I (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital I.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(h)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL I
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital I"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-------------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(i)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL II
THIS Certificate of Trust of BankAmerica Capital II (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital II.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(j)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL II
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital II"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-------------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(k)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL III
THIS Certificate of Trust of BankAmerica Capital III (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital III.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(l)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL III
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital III"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
------------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), as trustee
By: /s/ M. Lisa Wilkins
------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(m)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL IV
THIS Certificate of Trust of BankAmerica Capital IV (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital IV.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(n)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL IV
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital IV"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-----------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(o)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL V
THIS Certificate of Trust of BankAmerica Capital V (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital V.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(p)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL V
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital V"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-----------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(q)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL VI
THIS Certificate of Trust of BankAmerica Capital VI (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital VI.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(r)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL VI
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital VI"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-----------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(s)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL VII
THIS Certificate of Trust of BankAmerica Capital VII (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital VII.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(t)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL VII
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital VII"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-----------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(u)
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL VIII
THIS Certificate of Trust of BankAmerica Capital VIII (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital VIII.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
<PAGE>
Exhibit 4(v)
TRUST AGREEMENT
OF
BANKAMERICA CAPITAL VIII
THIS TRUST AGREEMENT is made as of November 4, 1996 (this "Trust
Agreement"), by and among BankAmerica Corporation, a Delaware corporation, as
Depositor (the "Depositor"), and Bankers Trust (Delaware), a Delaware banking
corporation, as trustee (the "Trustee"). The Depositor and the Trustee hereby
agree as follows:
1. The trust created hereby shall be known as "BankAmerica Capital VIII"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Depositor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Depositor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
------- -- ---
this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustee and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Trust Agreement or
Declaration, the Trustee shall not have any duty or obligation hereunder or with
respect of the trust estate, except as otherwise required by applicable law or
as may be necessary to obtain prior to such execution and delivery any licenses,
consents or approvals required by applicable law or otherwise. Notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Depositor and the Trustee hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and to execute, in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement,
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Preferred Securities of the Trust, (b) any
preliminary
<PAGE>
prospectus or prospectus supplement thereto relating to the Preferred Securities
required to be filed pursuant to Rule 424 under the 1933 Act, and (c) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Preferred Securities to be listed on the New York
Stock Exchange or such other exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Preferred Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange, or state securities or Blue Sky laws to be executed
on behalf of the Trust by the Trustee, the Trustee, in its capacity as trustee
of the Trust, is hereby authorized and directed to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing, it being
understood that the Trustee, in its capacity as trustee of the Trust, shall not
be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
the New York Stock Exchange or other exchange, or state securities or Blue Sky
laws. In connection with all of the foregoing, the Trustee, solely in its
capacity as trustee of the Trust, and the Depositor hereby constitute and
appoint Richard Laiderman as his or its, as the case may be, true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
for the Depositor or in the Depositor's name, place and stead, in any and all
capacities, to sign any and all amendments (including all pre-effective and
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
any other documents in connection therewith, with the Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his respective substitute or substitutes, shall do or cause to be done
by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware
-2-
<PAGE>
or, if not a natural person, an entity which has its principal place of business
in the State of Delaware. Subject to the foregoing, the Depositor is entitled
to appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (with regard to conflict of laws
principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
BANKAMERICA CORPORATION,
as Depositor
By: /s/ Shaun M. Maguire
-----------------------------------
Name: Shaun M. Maguire
Title: Senior Vice President
and Assistant Treasurer
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as trustee
of the Trust
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
-3-
<PAGE>
Exhibit 4(w)
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
among
BANKAMERICA CORPORATION,
as Depositor,
BANKERS TRUST COMPANY,
as Property Trustee,
BANKERS TRUST (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of December __, 1996
BANKAMERICA CAPITAL /*/
================================================================================
- -------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
----
ARTICLE I.
<S> <C> <C>
DEFINED TERMS................................. 1
Section 1.1. Definitions................................................. 1
ARTICLE II.
CONTINUATION OF THE TRUST.......................... 10
Section 2.1. Name........................................................ 10
Section 2.2. Office of the Delaware Trustee; Principal Place of Business. 10
Section 2.3. Initial Contribution of Trust Property; Organizational
Expenses.................................................... 10
Section 2.4. Issuance of the Preferred Securities; Authentication........ 11
Section 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures............................................... 11
Section 2.6. Declaration of Trust........................................ 11
Section 2.7. Authorization to Enter into Certain Transactions............ 12
Section 2.8. Assets of Trust............................................. 15
Section 2.9. Title to Trust Property..................................... 15
ARTICLE III.
PAYMENT ACCOUNT............................... 15
Section 3.1. Payment Account............................................. 15
ARTICLE IV.
DISTRIBUTIONS; REDEMPTION......................... 16
Section 4.1. Distributions............................................... 16
Section 4.2. Redemption.................................................. 17
Section 4.3. Subordination of Common Securities.......................... 19
Section 4.4. Payment Procedures.......................................... 20
Section 4.5. Tax Returns and Reports..................................... 20
Section 4.6. Payment of Taxes, Duties, Etc. of the Trust................. 20
Section 4.7. Payments under Indenture or Pursuant to Direct Actions...... 21
i
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE V.
<C> <S> <C>
TRUST SECURITIES CERTIFICATES............................ 21
Section 5.1. Initial Ownership........................................... 21
Section 5.2. The Trust Securities Certificates........................... 21
Section 5.3. Execution and Delivery of Trust Securities Certificates..... 21
Section 5.4. Registration of Transfer and Exchange of Preferred
Securities Certificates..................................... 22
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates................................................ 22
Section 5.6. Persons Deemed Securityholders.............................. 23
Section 5.7. Access to List of Securityholders' Names and Addresses...... 23
Section 5.8. Maintenance of Office or Agency............................. 23
Section 5.9. Appointment of Paying Agent................................. 23
Section 5.10. Ownership of Common Securities by Depositor................. 24
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificates..................................... 24
Section 5.12. Notices to Clearing Agency.................................. 25
Section 5.13. Definitive Preferred Securities Certificates................ 25
Section 5.14. Rights of Securityholders................................... 26
ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING.................... 28
Section 6.1. Limitations on Voting Rights................................ 28
Section 6.2. Notice of Meetings.......................................... 29
Section 6.3. Meetings of Preferred Securityholders....................... 29
Section 6.4. Voting Rights............................................... 30
Section 6.5. Proxies, etc................................................ 30
Section 6.6. Securityholder Action by Written Consent.................... 30
Section 6.7. Record Date for Voting and Other Purposes................... 30
Section 6.8. Acts of Securityholders..................................... 31
Section 6.9. Inspection of Records....................................... 32
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES.............................. 32
Section 7.1. Representations and Warranties of the Property Trustee and
the Delaware................................................ 32
Section 7.2. Representations and Warranties of Depositor................. 33
</TABLE>
ii
<PAGE>
ARTICLE VIII.
THE TRUSTEES............................. 33
Section 8.1. Certain Duties and Responsibilities......................... 34
Section 8.2. Certain Notices............................................. 35
Section 8.3. Certain Rights of Property Trustee.......................... 35
Section 8.4. Not Responsible for Recitals or Issuance of Securities...... 38
Section 8.5. May Hold Securities......................................... 38
Section 8.6. Compensation; Indemnity; Fees............................... 38
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees 39
Section 8.8. Conflicting Interests....................................... 40
Section 8.9. Co-Trustees and Separate Trustee............................ 40
Section 8.10. Resignation and Removal; Appointment of Successor........... 41
Section 8.11. Acceptance of Appointment by Successor...................... 42
Section 8.12. Merger, Conversion, Consolidation or Succession to Business. 43
Section 8.13. Preferential Collection of Claims Against Depositor or Trust 43
Section 8.14. Reports by Property Trustee................................. 44
Section 8.15. Reports to the Property Trustee............................. 45
Section 8.16. Evidence of Compliance with Conditions Precedent............ 45
Section 8.17. Number of Trustees.......................................... 45
Section 8.18. Delegation of Power......................................... 45
ARTICLE IX.
TERMINATION, LIQUIDATION AND MERGER.......................... 46
Section 9.1. Termination Upon Expiration Date............................ 46
Section 9.2. Early Termination........................................... 46
Section 9.3. Termination................................................. 46
Section 9.4. Liquidation................................................. 47
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of
the Trust................................................... 48
ARTICLE X.
MISCELLANEOUS PROVISIONS........................ 49
Section 10.1. Limitation of Rights of Securityholders..................... 49
Section 10.2. Amendment................................................... 49
Section 10.3. Separability................................................ 51
Section 10.5. Payments Due on Non-Business Day............................ 51
Section 10.6. Successors.................................................. 51
Section 10.7. Headings.................................................... 51
Section 10.8. Reports, Notices and Demands................................ 51
iii
<PAGE>
Section 10.9. Agreement Not to Petition.................................. 52
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act..... 53
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.................................................. 53
EXHIBIT A - Certificate of Trust
EXHIBIT B - Certificate Depository Agreement
EXHIBIT C - Common Securities Certificate
EXHIBIT D - Agreement as to Expenses and Liabilities
EXHIBIT E - Preferred Securities Certificate
iv
<PAGE>
BANKAMERICA CAPITAL /*/
Certain Sections of this Trust Agreement relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Trust Agreement
Act Section Section
- --------------- ---------------
<S> <C>
((S)) 310 (a)(1)............................................... 8.7
(a)(2)............................................... 8.7
(a)(3)............................................... 8.9
(a)(4)............................................... 2.7(a)(ii)
(b).................................................. 8.8
((S)) 311 (a................................................... 8.13
(b).................................................. 8.13
((S)) 312 (a).................................................. 5.7
(b).................................................. 5.7
(c).................................................. 5.7
((S)) 313 (a).................................................. 8.14(a)
(a)(4)............................................... 8.14(b)
(b).................................................. 8.14(b)
(c).................................................. 10.8
(d).................................................. 8.14(c)
((S)) 314 (a).................................................. 8.15
(b).................................................. Not Applicable
(c)(1)............................................... 8.16
(c)(2)............................................... 8.16
(c)(3)............................................... Not Applicable
(d).................................................. Not Applicable
(e).................................................. 1.1, 8.16
((S)) 315 (a).................................................. 8.1(a), 8.3(a)
(b).................................................. 8.2, 10.8
(c).................................................. 8.1(a)
(d).................................................. 8.1, 8.3
(e).................................................. Not Applicable
((S)) 316 (a).................................................. Not Applicable
(a)(1)(A)............................................ Not Applicable
(a)(1)(B)............................................ Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.14
(c).................................................. 6.7
((S)) 317 (a)(1)............................................... Not Applicable
(a)(2)............................................... Not Applicable
(b).................................................. 5.9
((S)) 318 (a).................................................. 10.10
- ------------
</TABLE>
Note: This reconciliation and tie sheet shall not, for any purpose, be deemed to
be a part of the Trust Agreement.
- -------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
i
<PAGE>
AMENDED AND RESTATED TRUST AGREEMENT, dated as of December __, 1996, among
(i) BankAmerica Corporation, a Delaware corporation (including any successors or
assigns, the "Depositor"), (ii) Bankers Trust Company, a New York banking
corporation, as property trustee, (in each such capacity, the "Property Trustee"
and, in its separate corporate capacity and not in its capacity as Property
Trustee, the "Bank"), (iii) Bankers Trust (Delaware), a Delaware banking
corporation organized under the laws of the State of Delaware, as Delaware
trustee (the "Delaware Trustee"), (iv) Shaun M. Maguire, an individual, Richard
A. Laiderman, an individual, and Stephen E. Wagner, an individual, each of whose
address is c/o BankAmerica Corporation, 555 California Street, San Francisco,
California 94104 (each an "Administrative Trustee" and collectively the
"Administrative Trustees") (the Property Trustee, the Delaware Trustee and the
Administrative Trustees referred to collectively as the "Trustees") and (v) the
several Holders, as hereinafter defined.
Witnesseth
Whereas, the Depositor, the Property Trustee and the Delaware Trustee have
heretofore duly declared and established a business trust pursuant to the
Delaware Business Trust Act by the entering into that certain Trust Agreement,
dated as of November 4, 1996 (the "Original Trust Agreement"), and by the
execution and filing by the Property Trustee and the Delaware Trustee with the
Secretary of State of the State of Delaware of the Certificate of Trust, filed
on November 4, 1996, attached as Exhibit A; and
Whereas, the Depositor and the Trustees desire to amend and restate the
Original Trust Agreement in its entirety as set forth herein to provide for,
among other things, (i) the issuance of the Common Securities by the Trust to
the Depositor, (ii) the issuance and sale of the Preferred Securities by the
Trust pursuant to the Underwriting Agreement, (iii) the acquisition by the Trust
from the Depositor of all of the right, title and interest in the Debentures and
(iv) the appointment of the Administrative Trustees;
Now Therefore, in consideration of the agreements and obligations set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each party, for the benefit of the
other parties and for the benefit of the Securityholders, hereby amends and
restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE I.
Defined Terms
Section 1.1. Definitions.
For all purposes of this Trust Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
(a) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to Trust Securities of a given
Liquidation Amount and/or a given period, the amount of Additional Interest (as
defined in the Indenture) paid by the Depositor on a Like Amount of Debentures
for such period.
"Additional Sums" has the meaning specified in Section 10.6 of the
Indenture.
"Administrative Trustee" means each of the Persons identified as an
"Administrative Trustee" in the preamble to this Trustee Agreement solely in
such Person's capacity as Administrative Trustee of the Trust formed and
continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Bank" has the meaning specified in the preamble to this Trust Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having jurisdiction in the
premises judging such Person a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjudication or
composition of or in respect of such Person under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of such Person or of any substantial part of its property or ordering
the winding up or liquidation of its
2
<PAGE>
affairs, and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(b) the institution by such Person of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or similar official) of
such Person or of any substantial part of its property, or the making by it of
an assignment for the benefit of creditors, or the admission by it in writing of
its inability to pay its debts generally as they become due and its willingness
to be adjudicated a bankrupt, or the taking of corporate action by such Person
in furtherance of any such action.
"Bankruptcy Laws" has the meaning specified in Section 10.9.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Depositor to have been duly adopted by the
Depositor's Board of Directors, or such committee of the Board of Directors or
officers of the Depositor to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustees.
"Book-Entry Preferred Securities Certificates" means a beneficial interest
in the Preferred Securities Certificates, ownership and transfers of which shall
be made through book entries by a Clearing Agency as described in Section 5.11.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) 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 (c) a day on which the Property
Trustee's Corporate Trust Office or the Corporate Trust Office of the Debenture
Trustee is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust, the
Depositor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates,
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Securities Exchange Act of 1934, as amended. The
Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
3
<PAGE>
"Closing Date" means the First Time of Delivery, which date is also the
date of execution and delivery of this Trust Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Security" means an undivided beneficial interest in the assets of
the Trust, having a Liquidation Amount of $______ and having the rights provided
therefor in this Trust Agreement, including the right to receive Distributions
and a Liquidation Distribution as provided herein.
"Common Securities Certificate" means a certificate evidencing ownership of
Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means (i) when used with respect to the Property
Trustee, the principal office of the Property Trustee located in New York, New
York which on the date of this Trust Agreement is Four Albany Street, New York,
New York 10006 - Attention; Corporate Trust and Agency Group - Corporate Market
Services, and (ii) when used with respect to the Debenture Trustee, its
Corporate Trust Office as defined in the Indenture.
"Debenture Event of Default" means an "Event of Default" as defined in the
Indenture.
"Debenture Redemption Date" means, with respect to any Debentures to be
redeemed under the Indenture, the date fixed for redemption under the Indenture.
"Debenture Tax Event" means a "Tax Event" as defined in the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York banking
corporation and any successor thereto.
"Debentures" means the aggregate principal amount of the Depositor's _____%
Junior Subordinated Deferrable Interest Debentures, Series /*/, issued pursuant
to the Indenture.
"Definitive Preferred Securities Certificates" means either or both (as the
context requires) of (a) Preferred Securities Certificates issued as Book-Entry
Preferred Securities Certificate as provided in Section 5.11(a) and (b)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
- -------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
4
<PAGE>
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C. ((S)) 3801, et seq., as it may be amended from time to time.
"Delaware Trustee" means the Person identified as the "Delaware Trustee" in
the preamble to this Trust Agreement solely in its capacity as Delaware Trustee
of the Trust formed and continued hereunder and not in its individual capacity,
or its successor in interest in such capacity, or any successor trustee
appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust Securities as
provided in Section 4.1.
"Early Termination Event" has the meaning specified in Section 9.2.
"Event of Default" means any one of the following events (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):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any Distribution when it
becomes due and payable, and continuation of such default for a period of 30
days; or
(c) default by the Trust in the payment of any Redemption Price of any
Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any material respect, of
any covenant or warranty of the Trustees in this Trust Agreement (other than a
covenant or warranty a default in the performance or breach of which is dealt
with in clause (b) or (c) 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 Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to the Property
Trustee and the failure by the Depositor to appoint a successor Property Trustee
within 60 days thereof.
"Expense Agreement" means the Agreement as to Expenses and Liabilities
between the Depositor and the Trust, substantially in the form attached as
Exhibit D, as amended from time to time.
5
<PAGE>
"Expiration Date" has the meaning specified in Section 9.1.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Depositor and Bankers Trust Company, as trustee, contemporaneously with the
execution and delivery of this Trust Agreement, for the benefit of the holders
of the Preferred Securities, as amended from time to time.
"Indenture" means the Junior Subordinated Indenture, dated as of _________
__, 199_, between the Depositor and the Debenture Trustee, as trustee, as
amended or supplemented from time to time.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust Securities,
Trust Securities having a Liquidation Amount equal to the principal amount of
Debentures to be contemporaneously redeemed in accordance with the Indenture the
proceeds of which will be used to pay the Redemption Price of such Trust
Securities, and (b) with respect to a distribution of Debentures to Holders of
Trust Securities in connection with a dissolution or liquidation of the Trust,
Debentures having a principal amount equal to the Liquidation Amount of the
Trust Securities of the Holder to whom such Debentures are distributed.
"Liquidation Amount" means the stated amount of $_____ per Trust Security.
"Liquidation Date" means the date on which Debentures are to be distributed
to Holders of Trust Securities in connection with a termination and liquidation
of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with
a condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has
read the covenant or condition and the definitions relating thereto;
6
<PAGE>
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(d) a statement as to whether, in the opinion of each such officer, such
condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel to the Depositor
who shall, and whose opinion shall, be reasonably acceptable to the Property
Trustee.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of the
date of determination, all Trust Securities theretofore executed and delivered
under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Property Trustee or
delivered to the Property Trustee for cancellation;
(b) Trust Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Property Trustee or any
Paying Agent for the Holders of such Trust Securities; provided that, if such
Trust Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Trust Agreement; and
(c) Trust Securities which have been paid or in exchange for or in lieu
of which other Preferred Securities have been executed and delivered pursuant to
Sections 5.4, 5.5, 5.11 and 5.13;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Preferred Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Preferred Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that a Responsible Officer of such Trustee
actually knows to be so owned shall be so disregarded and (b) the foregoing
shall not apply at any time when all of the outstanding Preferred Securities are
owned by the Depositor, one or more of the Trustees and/or any such Affiliate.
Preferred Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Administrative Trustees the pledgee's right so to act with respect to such
Preferred Securities and that the pledgee is not the Depositor or any Affiliate
of the Depositor.
7
<PAGE>
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Paying Agent" means any paying agent or co-paying agent appointed pursuant
to Section 5.9 and shall initially be the Bank.
"Payment Account" means a segregated non-interest-bearing corporate trust
account maintained by the Property Trustee with the Bank in its trust department
for the benefit of the Securityholders in which all amounts paid in respect of
the Debentures will be held and from which the Property Trustee, through the
Paying Agent, shall make payments to the Securityholders in accordance with
Sections 4.1 and 4.2.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount of $_____ and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing ownership
of Preferred Securities, substantially in the form attached as Exhibit E.
"Property Trustee" means the Person identified as the "Property Trustee" in
the preamble to this Trust Agreement solely in its capacity as Property Trustee
of the Trust heretofore formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be redeemed,
the date fixed for such redemption by or pursuant to this Trust Agreement;
provided that each Debenture Redemption Date and the stated maturity of the
Debentures shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Debentures, allocated on a pro rata basis (based on Liquidation Amounts) among
the Trust Securities.
"Relevant Trustee" shall have the meaning specified in Section 8.10.
8
<PAGE>
"Responsible Officer" means, when used with respect to the Property
Trustee, any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Property Trustee
customarily performing functions similar to those performed by any of the above
designated officers, and also, with respect to a particular matter, any other
officer, to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject and with respect to the Delaware
Trustee, any officer of the Delaware Trustee customarily performing functions
similar to those performed by any of the above designated officers, and also,
with respect to a particular matter, any other officer, to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust Security
or Trust Securities is or are registered in the Securities Register; any such
Person shall be deemed to be a beneficial owner within the meaning of the
Delaware Business Trust Act; provided, however, that in determining whether the
Holders of the requisite amount of Preferred Securities have voted on any matter
provided for in this Trust Agreement, then for the purpose of any such
determination, so long as Definitive Preferred Securities Certificates have not
been issued, the term Securityholders or Holders as used herein shall refer to
the Owners.
"Time of Delivery" has the meaning specified in the Underwriting Agreement.
"Trust" means the Delaware business trust created and continued hereby and
identified on the cover page to this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as the
same may be modified, amended or supplemented in accordance with the applicable
provisions hereof, including (i) all exhibits hereto and (ii) for all purposes
of this Trust Agreement and any such modification, amendment or supplement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Trust Agreement and any such modification, amendment or supplement,
respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debentures, (b) the rights of the Property
Trustee under the Guarantee, (c) any cash on deposit in, or owing to, the
Payment Account and (d) all proceeds and rights in respect of the foregoing and
any other property and assets for the time being held or deemed to be held by
the Property Trustee pursuant to the trusts of this Trust Agreement.
9
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"Trust Security" means any one of the Common Securities or the Preferred
Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trustees" means, collectively, the Property Trustee, the Delaware Trustee
and the Administrative Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
___________ __, 199_, among the Trust, the Depositor and the underwriters named
therein.
ARTICLE II.
CONTINUATION OF THE TRUST
SECTION 2.1. Name.
The Trust continued hereby shall be known as "BankAmerica Capital /*/," as
such name may be modified from time to time by the Administrative Trustees
following written notice to the Holders of Trust Securities and the other
Trustees, in which name the Trustees may conduct the business of the Trust, make
and execute contracts and other instruments on behalf of the Trust and sue and
be sued.
SECTION 2.2. Office of the Delaware Trustee; Principal Place of Business.
The address of the Delaware Trustee in the State of Delaware is 1001
Jefferson Street, Suite 550, Wilmington, Delaware 19801, Attention: M. Lisa
Wilkins, or such other address in the State of Delaware as the Delaware Trustee
may designate by written notice to the Securityholders and the Depositor. The
principal executive office of the Trust is c/o BankAmerica Corporation, 555
California Street, San Francisco, California 94104.
SECTION 2.3. Initial Contribution of Trust Property; Organizational
Expenses.
The Property Trustee acknowledges receipt in trust from the Depositor in
connection with the Original Trust Agreement of the sum of $10, which
constituted the initial Trust Property. The Depositor shall pay organizational
expenses of the Trust as they arise or shall, upon request of any Trustee,
promptly reimburse such Trustee for any such expenses paid by such Trustee. The
Depositor shall make no claim upon the Trust Property for the payment of such
expenses.
SECTION 2.4. Issuance of the Preferred Securities; Authentication.
- -------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
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On ________ __, 199_ the Depositor, on behalf of the Trust and pursuant to
the Original Trust Agreement, executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Trust Agreement, an
Administrative Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.3 and deliver, or in the alternative, execute by facsimile and deliver
to the Property Trustee for authentication and delivery, in accordance with
Section 5.3, Preferred Securities Certificates, registered in the name of the
nominee of the initial Clearing Agency, in an aggregate amount of ___________
Preferred Securities having an aggregate Liquidation Amount of $___________,
against receipt of such aggregate purchase price of such Preferred Securities of
$___________, which amount the Administrative Trustee shall promptly deliver to
the Property Trustee, less the amount payable by the Depositor as compensation
to the underwriters under the Underwriting Agreement.
SECTION 2.5. Issuance of the Common Securities; Subscription and Purchase
of Debentures.
Contemporaneously with the execution and delivery of this Trust Agreement,
an Administrative Trustee, on behalf of the Trust, shall execute in accordance
with Section 5.2 and deliver to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of _______
Common Securities having an aggregate Liquidation Amount of $____________
against payment by the Depositor of such amount, which amount such
Administrative Trustee shall promptly deliver to the Property Trustee.
Contemporaneously therewith, an Administrative Trustee, on behalf of the Trust,
shall subscribe to and purchase from the Depositor Debentures, registered in the
name of the Trust and having an aggregate principal amount equal to $_________,
and, in satisfaction of the purchase price for such Debentures, the Property
Trustee, on behalf of the Trust, shall deliver to the Depositor the sum of
$_________, less the amount payable by the Depositor as compensation to the
underwriters under the Underwriting Agreement. (being the sum of the amounts
delivered to the Property Trustee pursuant to (i) Section 2.4 and (ii) this
Section 2.5).
SECTION 2.6. Declaration of Trust.
The exclusive purposes and functions of the Trust are (a) to issue and sell
Trust Securities and use the proceeds from such sale to acquire the Debentures,
and (b) to engage in those activities necessary, convenient or incidental
thereto. The Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein, and
the Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
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SECTION 2.7. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance
with the terms of this Trust Agreement. Subject to the limitations set forth in
paragraph (b) of this Section, and in accordance with the following provisions
(i) and (ii), the Trustees shall have the authority to enter into all
transactions and agreements determined by the Trustees to be appropriate in
exercising the authority, express or implied, otherwise granted to the Trustees
under this Trust Agreement, and to perform all acts in furtherance thereof,
including without limitation, the following:
(i) As among the Trustees, each Administrative Trustee shall have
the power and authority to act on behalf of the Trust with respect to the
following matters:
(A) the issuance and sale of the Trust Securities;
(B) to cause the Trust to enter into, and to execute, deliver
and perform on behalf of the Trust, the Expense Agreement and the
Certificate Depository Agreement and such other agreements as may be
necessary or desirable in connection with the purposes and function
of the Trust;
(C) assisting in the registration of the Preferred Securities
under the Securities Act of 1933, as amended, and under state
securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;
(D) assisting in the listing of the Preferred Securities upon
such securities exchange or exchanges as shall be determined by the
Depositor and the registration of the Preferred Securities under the
Securities Exchange Act of 1934, as amended, and the preparation and
filing of all periodic and other reports and other documents pursuant
to the foregoing;
(E) the sending of notices (other than notices of default)
and other information regarding the Trust Securities and the
Debentures to the Securityholders in accordance with this Trust
Agreement;
(F) the appointment of a Paying Agent, authenticating agent
and Securities Registrar in accordance with this Trust Agreement;
(G) registering transfer of the Trust Securities in
accordance with this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
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(I) execution and delivery of closing certificates, pursuant
to the Underwriting Agreement and the application for a taxpayer
identification number;
(J) unless otherwise determined by the Depositor, the
Property Trustee or the Administrative Trustees, or as otherwise
required by the Delaware Business Trust Act or the Trust Indenture
Act, to execute on behalf of the Trust (either acting alone or
together with any or all of the Administrative Trustees) any
documents that the Administrative Trustees have the power to execute
pursuant to this Trust Agreement; and
(K) the taking of any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement for the
benefit of the Securityholders (without consideration of the effect
of any such action on any particular Securityholder).
(ii) As among the Trustees, the Property Trustee shall have the
power, duty and authority to act on behalf of the Trust with respect to the
following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Debentures;
(C) the collection of interest, principal and any other
payments made in respect of the Debentures in the Payment Account;
(D) the distribution through the Paying Agent of amounts owed
to the Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers and privileges
of a holder of the Debentures;
(F) the sending of notices of default and other information
regarding the Trust Securities and the Debentures to the
Securityholders in accordance with this Trust Agreement;
(G) the distribution of the Trust Property in accordance with
the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust and the
preparation, execution and filing of the certificate of cancellation
with the Secretary of State of the State of Delaware;
(I) after an Event of Default (other than under paragraph
(b), (c), (d) or (e) of the definition of such term if such Event of
Default is by or with
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respect to the Property Trustee) the taking of any action incidental
to the foregoing as the Property Trustee may from time to time
determine is necessary or advisable to give effect to the terms of
this Trust Agreement and protect and conserve the Trust Property for
the benefit of the Securityholders (without consideration of the
effect of any such action on any particular Securityholder); and
(J) except as otherwise provided in this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties, liabilities,
powers or the authority of the Administrative Trustees set forth in
Section 2.7(a)(i).
(b) So long as this Trust Agreement remains in effect, the Trust (or the
Trustees acting on behalf of the Trust) shall not undertake any business,
activities or transaction except as expressly provided herein or contemplated
hereby. In particular, the Trustees shall not (i) acquire any investments or
engage in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise dispose of
any of the Trust Property or interests therein, including to Securityholders,
except as expressly provided herein, (iii) take any action that would reasonably
be expected to cause the Trust to fail or cease to qualify as a "grantor trust"
for United States Federal income tax purposes, (iv) incur any indebtedness for
borrowed money or issue any other debt or (v) take or consent to any action that
would result in the placement of a Lien on any of the Trust Property. The
Administrative Trustees shall defend all claims and demands of all Persons at
any time claiming any Lien on any of the Trust Property adverse to the interest
of the Trust or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred Securities,
the Depositor shall have the right and responsibility to assist the Trust with
respect to, or effect on behalf of the Trust, the following (and any actions
taken by the Depositor in furtherance of the following prior to the date of this
Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the Commission
and the execution on behalf of the Trust of a registration statement on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) the determination of the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred
Securities and the determination of any and all such acts, other than
actions which must be taken by or on behalf of the Trust, and the advice to
the Trustees of actions they must take on behalf of the Trust, and the
preparation for execution and filing of any documents to be executed and
filed by the Trust or on behalf of the Trust, as the Depositor deems
necessary or advisable in order to comply with the applicable laws of any
such States;
(iii) the preparation for filing by the Trust and execution on
behalf of the Trust of an application to the New York Stock Exchange or any
other national stock exchange
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or the Nasdaq National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) the preparation for filing by the Trust with the Commission and
the execution on behalf of the Trust of a registration statement on Form
8-A relating to the registration of the Preferred Securities under Section
12(b) or 12(g) of the Exchange Act, including any amendments thereto;
(v) the negotiation of the terms of, and the execution and delivery
of, the Underwriting Agreement providing for the sale of the Preferred
Securities; and
(vi) the taking of any other actions necessary or desirable to carry
out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the Administrative
Trustees are authorized and directed to conduct the affairs of the Trust and to
operate the Trust so that the Trust will not be deemed to be an "investment
company" required to be registered under the 1940 Act, or fail to be classified
as a grantor trust for United States Federal income tax purposes and so that the
Debentures will be treated as indebtedness of the Depositor for United States
Federal income tax purposes. In this connection, the Depositor and the
Administrative Trustees are authorized to take any action, not inconsistent with
applicable law, the Certificate of Trust or this Trust Agreement, that each of
the Depositor and any Administrative Trustee determines in its discretion to be
necessary or desirable for such purposes, as long as such action does not
adversely affect in any material respect the interests of the holders of the
Preferred Securities.
SECTION 2.8. Assets of Trust.
The assets of the Trust shall consist of the Trust Property.
SECTION 2.9. Title to Trust Property.
Legal title to all Trust Property shall be vested at all times in the
Property Trustee (in its capacity as such) and shall be held and administered by
the Property Trustee for the benefit of the Trust and the Securityholders in
accordance with this Trust Agreement.
ARTICLE III.
PAYMENT ACCOUNT
SECTION 3.1. Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall establish
the Payment Account. The Property Trustee and any agent of the Property Trustee
shall have exclusive control and sole right of withdrawal with respect to the
Payment Account for the purpose of
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making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All monies and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein.
(b) The Property Trustee shall deposit in the Payment Account, promptly
upon receipt, all payments of principal of or interest on, and any other
payments or proceeds with respect to, the Debentures. Amounts held in the
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV.
Distributions; Redemption
SECTION 4.1. Distributions.
(a) The Trust Securities represent undivided beneficial interests in the
Trust Property, and Distributions (including of Additional Amounts) will be made
on the Trust Securities at the rate and on the dates that payments of interest
(including of Additional Interest, as defined in the Indenture) are made on the
Debentures. Accordingly:
(i) Distributions on the Trust Securities shall be cumulative, and
will accumulate whether or not there are funds of the Trust available for
the payment of Distributions. Distributions shall accrue from ________ __,
199_, and, except in the event (and to the extent) that the Depositor
exercises its right to defer the payment of interest on the Debentures
pursuant to the Indenture, shall be payable [quarterly] [semi-annually] in
arrears on [_____________________________] of each year, commencing on
_________ __, 199_. If any date on which a Distribution is otherwise
payable on the Trust Securities is not a Business Day, then the payment of
such Distribution shall 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 the date such payment was originally payable (each
date on which distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(ii) Assuming payments of interest on the Debentures are made when
due (and before giving effect to Additional Amounts, if applicable),
Distributions on the Trust Securities shall be payable at a rate of ____%
per annum of the Liquidation Amount of the Trust Securities. The amount of
Distributions payable for any period less than a full period shall be
computed on the basis of a 360-day year of twelve 30-day months and the
actual partial month in a period. Distributions payable for each full
Distribution period
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will be computed by dividing the rate per annum by [_____]. The amount of
Distributions payable for any period shall include the Additional Amounts,
if any.
(iii) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Distributions.
(b) Distributions on the Trust Securities with respect to a Distribution
Date shall be payable to the Holders thereof as they appear on the Securities
Register for the Trust Securities at the close of business on the relevant
record date, which shall be one Business Day prior to such Distribution Date;
provided, however, that in the event that the Preferred Securities do not remain
in book-entry-only form, the relevant record date shall be the date 15 days
prior to the relevant Distribution Date.
SECTION 4.2. Redemption.
(a) On each Debenture Redemption Date and on the stated maturity of the
Debentures, the Trust will be required to redeem a Like Amount of Trust
Securities at the Redemption Price.
(b) Notice of redemption shall be given by the Property Trustee by first-
class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior
to the Redemption Date to each Holder of Trust Securities to be redeemed, at
such Holder's address appearing in the Security Register. All notices of
redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price provided pursuant to the Indenture
together with a statement that it is an estimate and that the actual
Redemption Price will be calculated on the third Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date that notice of such actual
Redemption Price is received pursuant to the Indenture);
(iii) the CUSIP number;
(iv) if less than all the Outstanding Trust Securities are to be
redeemed, the identification and the total Liquidation Amount of the
particular Trust Securities to be redeemed; and
(v) that on the Redemption Date the Redemption Price will become
due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
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(vi) the place or places where the Trust Securities are to be
surrendered for the payment of the Redemption Price.
The Trust in issuing the Trust Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Property Trustee shall indicate the "CUSIP"
numbers of the Trust Securities in notices of redemption and related materials
as a convenience to Securityholders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Trust Securities or as contained in any notice of redemption and
related materials.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price with the proceeds from the contemporaneous
redemption of Debentures. Redemptions of the Trust Securities shall be made and
the Redemption Price shall be payable on each Redemption Date only to the extent
that the Trust has funds then on hand and available in the Payment Account for
the payment of such Redemption Price.
(d) If the Property Trustee gives a notice of redemption in respect of
any Preferred Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, subject to Section 4.2(c), the Property Trustee will, so long
as the Preferred Securities are in book-entry-only form, irrevocably deposit
with the Clearing Agency for the Preferred Securities funds sufficient to pay
the applicable Redemption Price and will give such Clearing Agency irrevocable
instructions and authority to pay the Redemption Price to the holders thereof.
If the Preferred Securities are no longer in book-entry-only form, the Property
Trustee, subject to Section 4.2(c), will irrevocably deposit with the Paying
Agent funds sufficient to pay the applicable Redemption Price and will give the
Paying Agent irrevocable instructions and authority to pay the Redemption Price
to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Register
for the Trust 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
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the Redemption Price
including any unpaid Distribution payable on or prior to the Redemption Date,
but without interest, and such Securities will cease to be outstanding. In the
event that any date on which any Redemption Price is payable is not a Business
Day, then payment of the Redemption Price 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
falls in the next calendar year, such payment will be made on the immediately
preceding Business Day, in each case, with the same force and effect as if made
on such date. In the event that payment of the Redemption Price in respect of
any Trust Securities called for redemption is improperly withheld or refused and
not paid either by the Trust or by the Depositor pursuant to the Guarantee,
Distributions on such Trust Securities will continue to accrue, at the then
applicable rate, from the Redemption Date originally established by the Trust
for such Trust Securities to the date such Redemption Price is actually paid, in
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which case the actual payment date will be the date fixed for redemption for
purposes of calculating the Redemption Price.
(e) Subject to Section 4.3(a), if less than all the Outstanding Trust
Securities are to be redeemed on a Redemption Date, then the aggregate
Liquidation Amount of Trust Securities to be redeemed shall be allocated on a
pro rata basis (based on Liquidation Amounts) among the Common Securities and
the Preferred Securities. The particular Preferred Securities to be redeemed
shall be selected on a pro rata basis (based upon Liquidation Amounts) not more
than 60 days prior to the Redemption Date by the Property Trustee from the
Outstanding Preferred Securities not previously called for redemption,
[provided, however, that with respect to Holders that would be required to hold
less than 100 but more than zero Preferred Securities as a result of such pro
rata redemption, the Property Trustee shall redeem each such Holders to either
100 Preferred Securities or zero Preferred Securities and shall use] [by] such
method (including, without limitation, by lot) as the Property Trustee shall
deem fair and appropriate [and which may provide for the selection for
redemption of portions (equal to $_____ or an integral multiple of $_____ in
excess thereof) of the Liquidation Amount of Preferred Securities of a
denomination larger than $_____]. Such determination shall be conclusive and
binding upon the Holders and the Property Trustee shall have no liability in
connection therewith. The Property Trustee shall promptly notify the Security
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 this 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
Liquidation Amount of Preferred Securities that has been or is to be redeemed.
Section 4.3. Subordination of Common Securities.
(a) Payment of Distributions (including Additional Amounts, if
applicable) on, and the Redemption Price of, the Trust Securities, as
applicable, shall be made, subject to Section 4.2(e), pro rata among the Common
Securities and the Preferred Securities based on the Liquidation Amount of the
Trust Securities; provided, however, that if on any Distribution Date or
Redemption Date any Event of Default resulting from a Debenture Event of Default
shall have occurred and be continuing, no payment of any Distribution (including
Additional Amounts, if applicable) on, or Redemption Price of, any Common
Security, and no other payment on account of the redemption, liquidation or
other acquisition of Common Securities, shall be made unless payment in full in
cash of all accumulated and unpaid Distributions (including Additional Amounts,
if applicable) on all 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 Outstanding
Preferred Securities then called for redemption, shall have been made or
provided for, and all funds immediately available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions (including
Additional Amounts, if applicable) on, or the Redemption Price of, Preferred
Securities then due and payable.
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(b) In the case of the occurrence of any Event of Default resulting from
any Debenture Event of Default, the Holder of Common Securities will be deemed
to have waived any right to act with respect to any such Event of Default under
this Trust Agreement until the effect of all such Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated.
Until any such Event of Default under this Trust Agreement with respect to the
Preferred Securities has been so cured, waived or otherwise eliminated, the
Property Trustee shall act solely on behalf of the Holders of the Preferred
Securities and not the Holder of the Common Securities, and only the Holders of
the Preferred Securities will have the right to direct the Property Trustee to
act on their behalf.
SECTION 4.4. Payment Procedures.
Payments of Distributions (including Additional Amounts, if applicable) in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto as such address shall appear on the Securities
Register or, if the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable Distribution Dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
SECTION 4.5. Tax Returns and Reports.
The Administrative Trustees shall prepare (or cause to be prepared), at the
Depositor's expense, and file all United States federal, state and local tax and
information returns and reports required to be filed by or in respect of the
Trust. In this regard, the Administrative Trustees shall (a) prepare and file
(or cause to be prepared and filed) the appropriate Internal Revenue Service
Form required to be filed in respect of the Trust in each taxable year of the
Trust and (b) prepare and furnish (or cause to be prepared and furnished) to
each Securityholder the appropriate Internal Revenue Service form required to be
provided on such form. The Administrative Trustees shall provide the Depositor
and the Property Trustee with a copy of all such returns and reports promptly
after such filing or furnishing. The Property Trustee shall comply with United
States federal withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to Securityholders under the
Trust Securities.
On or before December 15 of each year during which any Preferred Securities
are outstanding, the Administrative Trustees shall furnish to the Property
Trustee such information as may be reasonably requested by the Property Trustee
in order that the Property Trustee may prepare the information which it is
required to report for such year on Internal Revenue Service Forms 1096 and 1099
pursuant to Section 6049 of the Internal Revenue Code of 1986, as amended. Such
information shall include the amount of original issue discount includible in
income for each outstanding Preferred Security during such year.
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SECTION 4.6. Payment of Taxes, Duties, Etc. of the Trust.
Upon receipt under the Debentures of Additional Sums, the Property Trustee
shall promptly pay any taxes, duties or governmental charges of whatsoever
nature (other than withholding taxes) imposed on the Trust by the United States
or any other taxing authority.
SECTION 4.7. Payments under Indenture or Pursuant to Direct Actions.
Any amount payable hereunder to any Holder of Preferred Securities shall be
reduced by the amount of any corresponding payment such Holder (or an Owner with
respect to the Holder's Preferred Securities) has directly received pursuant to
Section 5.8 of the Indenture or Section 5.14 of this Trust Agreement.
ARTICLE V.
TRUST SECURITIES CERTIFICATES
SECTION 5.1. Initial Ownership.
Upon the creation of the Trust and the contribution by the Depositor
pursuant to Section 2.3 and until the issuance of the Trust Securities, and at
any time during which no Trust Securities are outstanding, the Depositor shall
be the sole beneficial owner of the Trust.
SECTION 5.2. The Trust Securities Certificates.
The Preferred Securities Certificates shall be issued in minimum
denominations of $_____ Liquidation Amount and integral multiples of $_____ in
excess thereof, and the Common Securities Certificates shall be issued in
denominations of $_____ Liquidation Amount and integral multiples thereof. The
Trust Securities Certificates shall be executed on behalf of the Trust by manual
signature of at least one Administrative Trustee. Trust Securities Certificates
bearing the manual signatures of individuals who were, at the time when such
signatures shall have been affixed, authorized to sign on behalf of the Trust,
shall be validly issued and entitled to the benefits of this Trust Agreement,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities Certificates or did
not hold such offices at the date of delivery of such Trust Securities
Certificates. A transferee of a Trust Securities Certificate shall become a
Securityholder, and shall be entitled to the rights and subject to the
obligations of a Securityholder hereunder, upon due registration of such Trust
Securities Certificate in such transferee's name pursuant to Sections 5.4, 5.11
and 5.13.
SECTION 5.3. Execution and Delivery of Trust Securities Certificates.
At the Time of Delivery, the Administrative Trustees shall cause [Trust]
[Common] Securities Certificates, in an aggregate Liquidation Amount as provided
in [Sections 2.4 and] 2.5, to be
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executed on behalf of the Trust and delivered, [and the Administrative Trustees
shall cause Preferred Securities Certificates, in an aggregate Liquidation
Amount as provided in Section 2.4, to be executed by facsimile and delivered to
the Property Trustee and upon such delivery the Property Trustee shall
authenticate such Preferred Certificates, and deliver such Preferred
Certificates in each case] to or upon the written order of the Depositor, signed
by its chairman of the board, its president, any executive vice president or any
vice president, treasurer or assistant treasurer or controller without further
corporate action by the Depositor, in authorized denominations.
Section 5.4. Registration of Transfer and Exchange of Preferred Securities
Certificates.
The Depositor shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a register or registers for the purpose of
registering Trust Securities Certificates and transfers and exchanges of
Preferred Securities Certificates (the "Securities Register") in which, the
registrar designated by the Depositor (the "Securities Registrar"), subject to
such reasonable regulations as it may prescribe, shall provide for the
registration of Preferred Securities Certificates and Common Securities
Certificates (subject to Section 5.10 in the case of the Common Securities
Certificates) and registration of transfers and exchanges of Preferred
Securities Certificates as herein provided. The Bank shall be the initial
Securities Registrar.
Upon surrender for registration of transfer of any Preferred Securities
Certificate at the office or agency maintained pursuant to Section 5.8, the
Administrative Trustees or any one of them shall execute and deliver, in the
name of the designated transferee or transferees, one or more new Preferred
Securities Certificates in authorized denominations of a like aggregate
Liquidation Amount dated the date of execution by such Administrative Trustee or
Trustees.
The Securities Registrar shall not be required to register the transfer of
any Preferred Securities that have been called for redemption. At the option of
a Holder, Preferred Securities Certificates may be exchanged for other Preferred
Securities Certificates in authorized denominations of the same class and of a
like aggregate Liquidation Amount upon surrender of the Preferred Securities
Certificates to be exchanged at the office or agency maintained pursuant to
Section 5.8.
Every Preferred Securities Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to an Administrative Trustee and the
Securities Registrar duly executed by the Holder or his attorney duly authorized
in writing. Each Preferred Securities Certificate surrendered for registration
of transfer or exchange shall be cancelled and subsequently disposed of by an
Administrative Trustee in accordance with such Person's customary practice.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
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The provisions of Sections 8.1, 8.3 and 8.6 herein shall apply to the Bank
also in its role as Securities Registrar, for so long as the Bank shall act as
Securities Registrar.
Whenever this document makes reference to the execution of Trust Securities
Certificates, such reference to execution shall mean manual execution or, in the
alternative, execution by facsimile signature by an Administrative Trustee and
authentication by the Property Trustee.
Preferred Securities Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper Administrative
Trustees of the Trust shall bind the Trust, notwithstanding that such
individuals or any of them have ceased to hold such office prior to the
authentication and delivery of such Preferred Securities Certificates or did not
hold such offices at the date of such Preferred Securities Certificates.
Each Preferred Securities Certificate that is executed by facsimile and
authenticated by the Property Trustee shall be dated the date of its
authentication.
No Preferred Securities Certificate that is executed by facsimile and
authenticated by the Property Trustee shall be entitled to any benefit under
this Trust Agreement or be valid or obligatory for any purpose, unless there
appears on such Preferred Securities Certificate a certificate of authentication
substantially in the form provided for in the form attached as Exhibit E
executed by the Property Trustee by the manual signature of one of its
authorized officers, and such certificate upon any Preferred Securities
Certificate shall be conclusive evidence, and the only evidence, that such
Preferred Securities Certificate has been duly authenticated and delivered
hereunder.
Section 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates.
If (a) any mutilated Trust Securities Certificate shall be surrendered to
the Securities Registrar, or if the Securities Registrar shall receive evidence
to its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required by them to
save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser, the
Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
Section 5.6. Persons Deemed Securityholders.
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The Trustees or the Securities Registrar shall treat the Person in whose
name any Trust Securities Certificate shall be registered in the Securities
Register as the owner of such Trust Securities Certificate for the purpose of
receiving Distributions and for all other purposes whatsoever, and neither the
Trustees nor the Securities Registrar shall be bound by any notice to the
contrary.
Section 5.7. Access to List of Securityholders' Names and Addresses.
Each Holder and each Owner shall be deemed to have agreed not to hold the
Depositor, the Property Trustee, the Delaware Trustee or the Administrative
Trustees accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section 5.8. Maintenance of Office or Agency.
The Administrative Trustees shall maintain an office or offices or agency
or agencies where Preferred Securities Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustees in respect of the Trust Securities Certificates may be served. The
Corporate Trust Office of the Property Trustee is initially designated the
office for such purpose. The Administrative Trustees shall give prompt written
notice to the Depositor and to the Securityholders of any change in the location
of the Securities Register or any such office or agency.
Section 5.9. Appointment of Paying Agent.
The Paying Agent shall make Distributions to Securityholders from the
Payment Account and shall report the amounts of such Distributions to the
Property Trustee and the Administrative Trustees. Any Paying Agent shall have
the revocable power to withdraw funds from the Payment Account for the purpose
of making the Distributions referred to above. The Administrative Trustees may
revoke such power and remove the Paying Agent if such Trustees determine in
their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect. The Paying
Agent shall initially be the Bank, and any co-paying agent chosen by the Bank,
and reasonably acceptable to the Administrative Trustees and the Depositor. Any
Person acting as Paying Agent shall be permitted to resign as Paying Agent upon
30 days' written notice to the Administrative Trustees, the Property Trustee and
the Depositor. In the event that the Bank shall no longer be the Paying Agent
or a successor Paying Agent shall resign or its authority to act be revoked, the
Administrative Trustees shall appoint a successor that is reasonably acceptable
to the Property Trustee and the Depositor to act as Paying Agent (which shall be
a bank or trust company). The Administrative Trustees shall cause such
successor Paying Agent or any additional Paying Agent appointed by the
Administrative Trustees to execute and deliver to the Trustees an instrument in
which such successor Paying Agent or additional Paying Agent shall agree with
the Trustees that as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled thereto
until such sums shall be paid to such Securityholders. The
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Paying Agent shall return all unclaimed funds to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6
herein shall apply to the Bank also in its role as Paying Agent, for so long as
the Bank shall act as Paying Agent and, to the extent applicable, to any other
paying agent appointed hereunder. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
Section 5.10. Ownership of Common Securities by Depositor.
At the Time of Delivery, the Depositor shall acquire and retain beneficial
and record ownership of the Common Securities. To the fullest extent permitted
by law, other than a transfer in connection with a consolidation or merger of
the Depositor into another Person, or any conveyance, transfer or lease by the
Depositor of its properties and assets substantially as an entirety to any
Person, pursuant to Section 8.1 of the Indenture, any attempted transfer of the
Common Securities shall be void. The Administrative Trustees shall cause each
Common Securities Certificate issued to the Depositor to contain a legend
stating "THIS CERTIFICATE IS NOT TRANSFERABLE".
Section 5.11. Book-Entry Preferred Securities Certificates; Common
Securities Certificate.
(a) The Preferred Securities Certificates, upon original issuance, will be
issued in the form of a typewritten Preferred Securities Certificate or
Certificates representing Book-Entry Preferred Securities Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust. Such Preferred Securities Certificate or Certificates
shall initially be registered on the Securities Register in the name of Cede &
Co., the nominee of the initial Clearing Agency, and no Owner will receive a
Definitive Preferred Securities Certificate representing such Owner's interest
in such Preferred Securities, except as provided in Section 5.13. Unless and
until Definitive Preferred Securities Certificates have been issued to Owners
pursuant to Section 5.13:
(i) the provisions of this Section 5.11(a) shall be in full force
and effect;
(ii) the Securities Registrar and the Trustees shall be entitled to
deal with the Clearing Agency for all purposes of this Trust Agreement
relating to the Book-Entry Preferred Securities Certificates (including the
payment of the Liquidation Amount of and Distributions on the Preferred
Securities evidenced by Book-Entry Preferred Securities Certificates and
the giving of instructions or directions to Owners of Preferred Securities
evidenced by Book-Entry Preferred Securities Certificates) as the sole
Holder of Preferred Securities evidenced by Book-Entry Preferred Securities
Certificates and shall have no obligations to the Owners thereof;
(iii) to the extent that the provisions of this Section 5.11 conflict
with any other provisions of this Trust Agreement, the provisions of this
Section 5.11 shall control; and
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(iv) the rights of the Owners of the Book-Entry Preferred Securities
Certificates shall be exercised only through the Clearing Agency and shall
be limited to those established by law and agreements between such Owners
and the Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until Definitive
Preferred Securities Certificates are issued pursuant to Section 5.13, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments on the Preferred
Securities to such Clearing Agency Participants.
(b) A single Common Securities Certificate representing the Common
Securities shall be issued to the Depositor in the form of a definitive Common
Securities Certificate.
Section 5.12. Notices to Clearing Agency.
To the extent that a notice or other communication to the Owners is
required under this Trust Agreement, unless and until Definitive Preferred
Securities Certificates shall have been issued to Owners pursuant to Section
5.13, the Trustees shall give all such notices and communications specified
herein to be given to Owners to the Clearing Agency, and shall have no
obligations to the Owners.
Section 5.13. Definitive Preferred Securities Certificates.
If (a) the Depositor advises the Trustees in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Preferred Securities Certificates, and the Depositor is
unable to locate a qualified successor, (b) the Depositor at its option advises
the Trustees in writing that it elects to terminate the book-entry system
through the Clearing Agency or (c) after the occurrence of a Debenture Event of
Default, Owners of Preferred Securities Certificates representing beneficial
interests aggregating at least a majority of the Liquidation Amount advise the
Administrative Trustees in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Owners of
Preferred Securities Certificates, then the Administrative Trustees shall notify
the Clearing Agency and the Clearing Agency shall notify all Owners of Preferred
Securities Certificates and the other Trustees of the occurrence of any such
event and of the availability of the Definitive Preferred Securities
Certificates to Owners of such class or classes, as applicable, requesting the
same. Upon surrender to the Administrative Trustees of the typewritten
Preferred Securities Certificate or Certificates representing the Book Entry
Preferred Securities Certificates by the Clearing Agency, accompanied by
registration instructions, the Administrative Trustees, or any one of them,
shall execute the Definitive Preferred Securities Certificates in accordance
with the instructions of the Clearing Agency. Neither the Securities Registrar
nor the Trustees shall be liable for any delay in delivery of such instructions
and may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Preferred Securities
Certificates, the Trustees shall recognize the Holders of the Definitive
Preferred Securities Certificates as Securityholders. The Definitive Preferred
Securities Certificates shall be printed, lithographed or engraved or may be
produced in any
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other manner as is reasonably acceptable to the Administrative Trustees, as
evidenced by the execution thereof by the Administrative Trustees or any one of
them.
Section 5.14. Rights of Securityholders.
(a) The legal title to the Trust Property is vested exclusively in the
Property Trustee (in its capacity as such) in accordance with Section 2.9, and
the Securityholders shall not have any right or title therein other than the
undivided beneficial interest in the assets of the Trust conferred by their
Trust Securities and they shall have no right to call for any partition or
division of property, profits or rights of the Trust except as described below.
The Trust Securities shall be personal property giving only the rights
specifically set forth therein and in this Trust Agreement. The Trust
Securities shall have no preemptive or similar rights and when issued and
delivered to Securityholders against payment of the purchase price therefor will
be fully paid and nonassessable by the Trust. The Holders of the Trust
Securities, in their capacities as such, shall be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
(b) For so long as any Preferred Securities remain Outstanding, if, upon a
Debenture Event of Default, the Debenture Trustee fails or the holders of not
less than 25% in principal amount of the outstanding Debentures fail to declare
the principal of all of the Debentures to be immediately due and payable, the
Holders of at least 25% in Liquidation Amount of the Preferred Securities then
Outstanding shall have such right by a notice in writing to the Depositor and
the Debenture Trustee with a copy to the Property Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Debentures shall become immediately due and payable, provided that the payment
of principal and interest on such Debentures shall remain subordinated to the
extent provided in the Indenture.
At any time after such a declaration of acceleration with respect to the
Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Debenture Trustee as in the Indenture
provided, the Holders of a majority in Liquidation Amount of the Preferred
Securities, by written notice to the Property Trustee, the Depositor and the
Debenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Depositor has paid or deposited with the Debenture Trustee a
sum sufficient to pay
(A) all overdue installments of interest (including any
Additional Interest (as defined in the Indenture)) on all of the
Debentures,
(B) the principal of (and premium, if any, on) any Debentures
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Debentures,
and
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(C) all sums paid or advanced by the Debenture Trustee under the
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Debenture Trustee and the Property Trustee, their
agents and counsel; and
(ii) all Events of Default with respect to the Debentures, other than
the non-payment of the principal of the Debentures which has become due
solely by such acceleration, have been cured or waived as provided in
Section 5.13 of the Indenture.
The Holders of a majority in aggregate Liquidation Amount of the Preferred
Securities may, on behalf of the Holders of all the Preferred Securities, waive
any past default under the Indenture, 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 Indenture cannot be modified
or amended without the consent of the holder of each outstanding Debenture. No
such rescission shall affect any subsequent default or impair any right
consequent thereon.
Upon receipt by the Property Trustee of written notice declaring such an
acceleration, or rescission and annulment thereof, by Holders of the Preferred
Securities all or part of which is represented by Book-Entry Preferred
Securities Certificates, a record date shall be established for determining
Holders of Outstanding Preferred Securities entitled to join in such notice,
which record date shall be at the close of business on the day the Property
Trustee receives such notice. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to join in such
notice, whether or not such Holders remain Holders after such record date;
provided, that, unless such declaration of acceleration, or rescission and
annulment, as the case may be, shall have become effective by virtue of the
requisite percentage having joined in such notice prior to the day which is 90
days after such record date, such notice of declaration of acceleration, or
rescission and annulment, as the case may be, shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new written notice of declaration of
acceleration, or rescission and annulment thereof, as the case may be, that is
identical to a written notice which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 5.14(b).
(c) For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Trust Agreement
and the Indenture, upon a Debenture Event of Default specified in Section 5.1(1)
or 5.1(2) of the Indenture, any Holder of Preferred Securities shall have the
right to institute a proceeding directly against the Depositor, pursuant to
Section 5.8 of the Indenture, for enforcement of payment to such Holder of the
principal amount of or interest on Debentures having a principal amount equal to
the Liquidation Amount of the Preferred Securities of such Holder (a "Direct
Action"). Except as set forth in Section 5.14(b) and this Section 5.14(c), the
Holders of Preferred Securities shall have no right to exercise directly any
right or remedy available to the holders of, or in respect of, the Debentures.
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ARTICLE VI.
ACTS OF SECURITYHOLDERS; MEETINGS; VOTING
Section 6.1. Limitations on Voting Rights.
(a) Except as provided in this Section, in Sections 5.14, 8.10 and 10.2
and in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) So long as any Debentures are held by the Property Trustee, the
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 Debenture Trustee with respect to such
Debentures, (ii) waive any past default which is waivable under Section 5.13 of
the Indenture, (iii) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (iv) consent to
any amendment, modification or termination of the Indenture or the Debentures,
where such consent shall be required, without, in each case, obtaining the prior
approval of the Holders of at least a majority in Liquidation Amount of all
Outstanding Preferred Securities, provided, however, that where a consent under
the Indenture would require the consent of each holder of Debentures affected
thereby, no such consent shall be given by the Property Trustee without the
prior written consent of each Holder of Preferred Securities. The Trustees
shall not revoke any action previously authorized or approved by a vote of the
Holders of Preferred Securities, except by a subsequent vote of the Holders of
Preferred Securities. The Property Trustee shall notify all Holders of the
Preferred Securities of any notice of default received from the Debenture
Trustee with respect to the Debentures. In addition to obtaining the foregoing
approvals of the Holders of the Preferred Securities, prior to taking any of the
foregoing actions, the Trustees shall, at the expense of the Depositor, obtain
an Opinion of Counsel experienced in such matters to the effect that such action
shall not cause the Trust to be classified as an association taxable as a
corporation for United States federal income tax purposes.
(c) If any proposed amendment to the Trust Agreement provides for, or the
Trustees otherwise propose to effect, (i) any action that would adversely affect
in any material respect the powers, preferences or special rights of the
Preferred Securities, whether by way of amendment to the Trust Agreement or
otherwise, or (ii) the dissolution, winding-up or termination of the Trust,
other than pursuant to the terms of this Trust Agreement, then the Holders of
Outstanding Preferred Securities as a class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of the Holders of at least a majority in Liquidation
Amount of the Outstanding Preferred Securities. Notwithstanding any other
provision of this Trust Agreement, no amendment to this Trust Agreement may be
made
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if, as a result of such amendment, it would cause the Trust to fail to be
classified as a grantor trust for United States Federal income tax purposes.
Section 6.2. Notice of Meetings.
Notice of all meetings of the Preferred Securityholders, stating the time,
place and purpose of the meeting, shall be given by the Property Trustee
pursuant to Section 10.8 to each Preferred Securityholder of record, at his
registered address, at least 15 days and not more than 90 days before the
meeting. At any such meeting, any business properly before the meeting may be
so considered whether or not stated in the notice of the meeting. Any adjourned
meeting may be held as adjourned without further notice.
Section 6.3. Meetings of Preferred Securityholders.
No annual meeting of Securityholders is required to be held. The
Administrative Trustees, however, shall call a meeting of Preferred
Securityholders to vote on any matter upon the written request of the Preferred
Securityholders of record of 25% of the Preferred Securities (based upon their
Liquidation Amount) and the Administrative Trustees or the Property Trustee may,
at any time in their discretion, call a meeting of Preferred Securityholders to
vote on any matters as to which Preferred Securityholders are entitled to vote.
Preferred Securityholders of record of 50% of the Outstanding Preferred
Securities (based upon their Liquidation Amount), present in person or by proxy,
shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by the Preferred
Securityholders of record present, in person or by proxy, holding more than a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by the Preferred Securityholders of record present, either in person or by
proxy, at such meeting shall constitute the action of the Preferred
Securityholders, unless this Trust Agreement requires a greater number of
affirmative votes.
Section 6.4. Voting Rights.
Securityholders shall be entitled to one vote for each $_____ of
Liquidation Amount represented by their Trust Securities in respect of any
matter as to which such Securityholders are entitled to vote.
Section 6.5. Proxies, etc.
At any meeting of Securityholders, any Securityholder entitled to vote
thereat may vote by proxy, provided that no proxy shall be voted at any meeting
unless it shall have been placed on file with the Administrative Trustees, or
with such other officer or agent of the Trust as the Administrative Trustees may
direct, for verification prior to the time at which such vote shall be taken.
If authorized by the Property Trustee, proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of
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record shall be entitled to vote. When Trust Securities are held jointly by
several Persons, any one of them may vote at any meeting in person or by proxy
in respect of such Trust Securities, but if more than one of them shall be
present at such meeting in person or by proxy, and such joint owners or their
proxies so present disagree as to any vote to be cast, such vote shall not be
received in respect of such Trust Securities. A proxy purporting to be executed
by or on behalf of a Securityholder shall be deemed valid unless challenged at
or prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
Section 6.6. Securityholder Action by Written Consent.
Any action which may be taken by Securityholders at a meeting may be taken
without a meeting if Securityholders holding more than a majority of all
Outstanding Trust Securities (based upon their Liquidation Amount) entitled to
vote in respect of such action (or such larger proportion thereof as shall be
required by any express provision of this Trust Agreement) shall consent to the
action in writing.
Section 6.7. Record Date for Voting and Other Purposes.
For the purposes of determining the Securityholders who are entitled to
notice of and to vote at any meeting or by written consent, or to participate in
any distribution on the Trust Securities in respect of which a record date is
not otherwise provided for in this Trust Agreement, or for the purpose of any
other action, the Administrative Trustees or Property Trustee may from time to
time fix a date, not more than 90 days prior to the date of any meeting of
Securityholders or the payment of a distribution or other action, as the case
may be, as a record date for the determination of the identity of the
Securityholders of record for such purposes.
Section 6.8. Acts of Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Trust Agreement to be given, made or
taken by Securityholders or Owners may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Securityholders
or Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to the Property Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders or
Owners signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Trust Agreement and (subject to Section 8.1) conclusive in favor
of the Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the
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individual signing such instrument or writing acknowledged to him the execution
thereof. Where such execution is by a signer acting in a capacity other than
his individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which any Trustee receiving the same
deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to take
any action hereunder with regard to any particular Trust Security may do so with
regard to all or any part of the Liquidation Amount of such Trust Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such liquidation amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
Section 6.9. Inspection of Records.
Upon reasonable notice to the Administrative Trustees and the Property
Trustee, the records of the Trust shall be open to inspection by Securityholders
during normal business hours for any purpose reasonably related to such
Securityholder's interest as a Securityholder.
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ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
Section 7.1. Representations and Warranties of the Property Trustee and
the Delaware Trustee.
The Property Trustee and the Delaware Trustee, each severally on
behalf of and as to itself, hereby represents and warrants for the benefit of
the Depositor and the Securityholders that:
(a) the Property Trustee is a New York banking corporation duly
organized, validly existing and in good standing under the laws of New York;
(b) the Property Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(c) the Delaware Trustee is a Delaware corporation duly organized,
validly existing and in good standing in the State of Delaware;
(d) the Delaware Trustee has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Trust Agreement
and has taken all necessary action to authorize the execution, delivery and
performance by it of this Trust Agreement;
(e) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and the Delaware Trustee and constitutes the
valid and legally binding agreement of each of the Property Trustee and the
Delaware Trustee enforceable against each of them in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(f) the execution, delivery and performance of this Trust Agreement
has been duly authorized by all necessary corporate or other action on the part
of the Property Trustee and the Delaware Trustee and does not require any
approval of stockholders of the Property Trustee and the Delaware Trustee and
such execution, delivery and performance will not (i) violate the Charter or By-
laws of the Property Trustee or the Delaware Trustee, (ii) violate any provision
of any indenture, mortgage, credit agreement, license or other agreement or
instrument to which the Property Trustee or the Delaware Trustee is a party or
by which it is bound, which violation would materially and adversely affect the
Trust, the Securityholders or the Property Trustee's or the Delaware Trustee's,
as the case may be, performance under the Trust Agreement, or result in the
creation or imposition of any Lien on any properties included in the Trust
Property, or (iii) violate any law, governmental rule or regulation of the
United States or the State of Delaware, as the case may be, governing the
banking, trust or general powers of the Property
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Trustee or the Delaware Trustee (as appropriate in context) or any order,
judgment or decree applicable to the Property Trustee or the Delaware Trustee;
(g) neither the authorization, execution or delivery by the Property
Trustee or the Delaware Trustee of this Trust Agreement nor the consummation of
any of the transactions by the Property Trustee or the Delaware Trustee (as
appropriate in context) contemplated herein or therein requires the consent or
approval of, the giving of notice to, the registration with or the taking of any
other action with respect to any governmental authority or agency under any
existing Federal law governing the banking, trust or general powers of the
Property Trustee or the Delaware Trustee, as the case may be, under the laws of
the United States or the State of Delaware; and
(h) there are no proceedings pending or, to the best of each of the
Property Trustee's and the Delaware Trustee's knowledge, threatened against or
affecting the Property Trustee or the Delaware Trustee in any court or before
any governmental authority, agency or arbitration board or tribunal which, in
the good faith judgment of the Property Trustee or the Delaware Trustee, as the
case may be, individually or in the aggregate, would materially and adversely
affect the Trust or the right, power and authority of the Property Trustee or
the Delaware Trustee, as the case may be, to enter into or perform its
obligations as one of the Trustees under this Trust Agreement.
Section 7.2. Representations and Warranties of Depositor.
The Depositor hereby represents and warrants for the benefit of the
Securityholders that:
(a) the Trust Securities Certificates issued at each Time of Delivery
on behalf of the Trust have been duly authorized and will have been, duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable by
the Trust (or the Trustees on behalf of the Trust) under the laws of the State
of Delaware or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee or the Delaware
Trustee, as the case may be, of this Trust Agreement.
ARTICLE VIII.
THE TRUSTEES
Section 8.1. Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as provided by
this Trust Agreement and, in the case of the Property Trustee, by the Trust
Indenture Act. Notwithstanding
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the foregoing, no provision of this Trust Agreement shall require the Trustees
to expend or risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise of any of
their rights or powers, if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity satisfactory to it against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Article. Nothing in this Trust
Agreement shall be construed to release an Administrative Trustee from liability
for its own gross negligent action, its own gross negligent failure to act, or
its own willful misconduct. To the extent that, at law or in equity, an
Administrative Trustee has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to the Securityholders, such Administrative
Trustee shall not be liable to the Trust or to any Securityholder for such
Trustee's good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of the Administrative Trustees otherwise existing at law or in
equity, are agreed by the Depositor and the Securityholders to replace such
other duties and liabilities of the Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a majority in Liquidation
Amount of the Trust Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee,
or exercising any trust or power conferred upon the Property Trustee under
this Trust Agreement;
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(iii) the Property Trustee's sole duty with respect to the custody,
safe keeping and physical preservation of the Debentures and the Payment
Account shall be to deal with such property in a similar manner as the
Property Trustee deals with similar property for its own account, subject
to the protections and limitations on liability afforded to the Property
Trustee under this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest on any
money received by it except as it may otherwise agree with the Depositor;
and money held by the Property Trustee need not be segregated from other
funds held by it except in relation to the Payment Account maintained by
the Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law; and
(v) the Property Trustee shall not be responsible for monitoring the
compliance by the Administrative Trustees or the Depositor with their
respective duties under this Trust Agreement, nor shall the Property
Trustee be liable for the default or misconduct of the Administrative
Trustees or the Depositor.
Section 8.2. Certain Notices.
Within five Business Days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Securityholders, the Administrative
Trustees and the Depositor, unless such Event of Default shall have been cured
or waived.
Within five Business Days after the receipt of notice of the Depositor's
exercise of its right to defer the payment of interest on the Debentures
pursuant to the Indenture, the Administrative Trustee shall transmit, in the
manner and to the extent provided in Section 10.8, notice of such exercise to
the Securityholders and the Property Trustee, unless such exercise shall have
been revoked.
Section 8.3. Certain Rights of Property Trustee.
Subject to the provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall fully be protected
in acting or refraining from acting in good faith upon any resolution, Opinion
of Counsel, certificate, written representation of a Holder or transferee,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) if (i) in performing its duties under this Trust Agreement the
Property Trustee is required to decide between alternative courses of
action or (ii) in construing any of the
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provisions of this Trust Agreement the Property Trustee finds the same ambiguous
or inconsistent with any other provisions contained herein or (iii) the Property
Trustee is unsure of the application of any provision of this Trust Agreement,
then, except as to any matter as to which the Preferred Securityholders are
entitled to vote under the terms of this Trust Agreement, the Property Trustee
shall deliver a notice to the Depositor requesting written instructions of the
Depositor as to the course of action to be taken and the Property Trustee shall
take such action, or refrain from taking such action, as the Property Trustee
shall be instructed in writing to take, or to refrain from taking, by the
Depositor; provided, however, that if the Property Trustee does not receive such
instructions of the Depositor within ten Business Days after it has delivered
such notice, or such reasonably shorter period of time set forth in such notice
(which to the extent practicable shall not be less than two Business Days), it
may, but shall be under no duty to, take or refrain from taking such action not
inconsistent with this Trust Agreement as it shall deem advisable and in the
best interests of the Securityholders, in which event the Property Trustee shall
have no liability except for its own bad faith, negligence or willful
misconduct;
(c) any direction or act of the Depositor or the Administrative Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate which,
upon receipt of such request, shall be promptly delivered by the Depositor or
the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any recording, filing
or registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel (which counsel may be
counsel to the Depositor or any of its Affiliates, and may include any of its
employees) and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon and in accordance with
such advice, such counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees; the Property Trustee shall
have the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Trust Agreement at the request or
direction of any of the Securityholders pursuant to this Trust Agreement, unless
such Securityholders shall have offered to the Property Trustee security or
indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
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(h) the Property Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other evidence of indebtedness or other paper or document,
unless requested in writing to do so by one or more Securityholders, but the
Property Trustee may make such further inquiry or investigation into such facts
or matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its agents or
attorneys and the Property Trustee shall not be responsible for any misconduct
or negligence on the part of, or for the supervision of, any such agent or
attorney appointed with due care by it hereunder;
(j) whenever in the administration of this Trust Agreement the Property
Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder the Property
Trustee (i) may request instructions from the Holders of the Trust Securities
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be fully protected in acting in accordance with such instructions;
(k) except as otherwise expressly provided by this Trust Agreement, the
Property Trustee shall not be under any obligation to take any action that is
discretionary under the provisions of this Trust Agreement;
(l) when the Property Trustee incurs expenses or renders services in
connection with a Bankruptcy Event, such expenses (including the fees and
expenses of its counsel) and the compensation for such services are intended to
constitute expenses of administration under any bankruptcy law or law relating
to creditors rights generally; and
(m) the Property Trustee shall not be charged with knowledge of an Event of
Default unless a Responsible Officer of the Property Trustee obtains actual
knowledge of such event or the Property Trustee receives written notice of such
event from Securityholders holding more than a majority of Preferred Securities
(based upon Liquidation Amount).
No provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
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Section 8.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Trust Securities Certificates
shall be taken as the statements of the Trust, and the Trustees do not assume
any responsibility for their correctness. The Trustees shall not be accountable
for the use or application by the Depositor of the proceeds of the Debentures.
Section 8.5. May Hold Securities.
Any Trustee or any other agent of any Trustee or the Trust, in its
individual or any other capacity, may become the owner or pledgee of Trust
Securities and, subject to Sections 8.8 and 8.13 and except as provided in the
definition of the term "Outstanding" in Article I, may otherwise deal with the
Trust with the same rights it would have if it were not a Trustee or such other
agent.
Section 8.6. Compensation; Indemnity; Fees.
The Depositor agrees:
(a) to pay to the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustees upon request for all reasonable expenses, disbursements and advances
incurred or made by the Trustees in accordance with any provision of this Trust
Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to the fullest extent permitted by applicable law, to indemnify and
hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee, (iii) any
officer, director, shareholder, employee, representative or agent of any
Trustee, and (iv) any employee or agent of the Trust or its Affiliates,
(referred to herein as an "Indemnified Person") from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
The provisions of this Section 8.6 shall survive the termination of this
Trust Agreement or the earlier resignation or removal of any Trustee.
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No Trustee may claim any lien or charge on any Trust Property as a result
of any amount due pursuant to this Section 8.6.
The Depositor and any Trustee (in the case of the Property Trustee, subject
to Section 8.8 hereof) may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of Trust
Securities shall have no rights by virtue of this Trust Agreement in and to such
independent ventures or the income or profits derived therefrom, and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. Neither the Depositor, nor any Trustee,
shall be obligated to present any particular investment or other opportunity to
the Trust even if such opportunity is of a character that, if presented to the
Trust, could be taken by the Trust, and the Depositor or any Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Trustee may engage or be interested in any financial or other
transaction with the Depositor or any Affiliate of the Depositor, or may act as
depository for, trustee or agent for, or act on any committee or body of holders
of, securities or other obligations of the Depositor or its Affiliates.
Section 8.7. Corporate Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with respect
to the Trust Securities. The Property Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such and has a combined capital
and surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
(b) There shall at all times be one or more Administrative Trustees
hereunder with respect to the Trust Securities. Each Administrative Trustee
shall be either a natural person who is at least 21 years of age or a legal
entity that shall act through one or more persons authorized to bind that
entity.
(c) There shall at all times be a Delaware Trustee with respect to the
Trust Securities. The Delaware Trustee shall either be (i) a natural person who
is at least 21 years of age and a resident of the State of Delaware or (ii) a
legal entity with its principal place of business in the State of Delaware and
that otherwise meets the requirements of applicable Delaware law that shall act
through one or more persons authorized to bind such entity.
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Section 8.8. Conflicting Interests.
If the Property Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Property Trustee shall
either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act and
this Trust Agreement.
Section 8.9. Co-Trustees and Separate 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 Depositor and the Administrative
Trustees, by agreed action of the majority of such Trustees, shall have
power to appoint, and upon the written request of the Administrative
Trustees, the Depositor shall for such purpose join with the Administrative
Trustees in the execution, delivery, and performance of all instruments and
agreements necessary or proper to appoint, one or more Persons approved by
the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent
required by law 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 the capacity aforesaid, any
property, title, right or power deemed necessary or desirable, subject to
the other provisions of this Section. If the Depositor does not join in
such appointment within 15 days after the receipt by it of a request so to
do, or in case a Debenture Event of Default has occurred and is continuing,
the Property Trustee alone shall have power to make such appointment. Any
co-trustee or separate trustee appointed pursuant to this Section shall
either be (i) a natural person who is at least 21 years of age and a
resident of the United States or (ii) a legal entity with its principal
place of business in the United States that shall act through one or more
persons authorized to bind such entity.
Should any written instrument from the Depositor be required by any
co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right, or power,
any and all such instruments shall, on request, be executed, acknowledged
and delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent permitted by
law, but to such extent only, be appointed subject to the following terms,
namely:
(a) The Trust Securities shall be executed and delivered and all
rights, powers, duties, and obligations hereunder in respect of the custody
of securities, cash and other personal property held by, or required to be
deposited or pledged with, the Trustees specified hereunder shall be
exercised solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby conferred or
imposed upon the Property Trustee in respect of any property covered by
such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee
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and such co-trustee or separate trustee jointly, as shall be provided in
the instrument appointing such co-trustee or separate trustee, except to
the extent that under any law of any jurisdiction in which any particular
act is to be performed, the Property Trustee shall be incompetent or
unqualified to perform such act, in which event such rights, powers, duties
and obligations shall be exercised and performed by such co-trustee or
separate trustee.
(c) The Property Trustee at any time, by an instrument in writing
executed by it, with the written concurrence of the Depositor, may accept
the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case a Debenture Event of Default has occurred
and is continuing, the Property Trustee shall have power to accept the
resignation of, or remove, any such co-trustee or separate trustee without
the concurrence of the Depositor. Upon the written request of the Property
Trustee, the Depositor shall join with the Property Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to effectuate such resignation or removal. A successor
to any co-trustee or separate trustee so resigned or removed may be
appointed in the manner provided in this Section.
(d) No co-trustee or separate trustee hereunder shall be personally
liable by reason of any act or omission of the Property Trustee or any
other trustee hereunder.
(e) The Property Trustee shall not be liable by reason of any act of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee shall be
deemed to have been delivered to each such co-trustee and separate trustee.
Section 8.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of any Trustee (the "Relevant Trustee") and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, the Relevant Trustee
may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant
Trustee within 30 days after the giving of such notice of resignation, the
Relevant Trustee may petition, at the expense of the Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them,
may be removed at such time by Act of the Holders of a majority in
Liquidation Amount of the Preferred Securities, delivered to the Relevant
Trustee (in its
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individual capacity and on behalf of the Trust). An Administrative Trustee
may be removed by the Common Securityholder at any time.
If any Trustee shall resign, be removed or become incapable of acting
as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred
and be continuing, the Common Securityholder, by Act of the Common
Securityholder delivered to the retiring Trustee, shall promptly appoint a
successor Trustee or Trustees, and the retiring Trustee shall comply with
the applicable requirements of Section 8.11. If the Property Trustee or
the Delaware Trustee shall resign, be removed or become incapable of
continuing to act as the Property Trustee or the Delaware Trustee, as the
case may be, at a time when a Debenture Event of Default shall have
occurred and be continuing, the Preferred Securityholders, by Act of the
Securityholders of a majority in Liquidation Amount of the Preferred
Securities then Outstanding delivered to the retiring Relevant Trustee,
shall promptly appoint a successor Relevant Trustee or Trustees, and such
successor Trustee shall comply with the applicable requirements of Section
8.11. If an Administrative Trustee shall resign, be removed or become
incapable of acting as Administrative Trustee, at a time when a Debenture
Event of Default shall have occurred and be continuing, the Common
Securityholder by Act of the Common Securityholder delivered to the
Administrative Trustee shall promptly appoint a successor Administrative
Trustee or Administrative Trustees and such successor Administrative
Trustee or Trustees shall comply with the applicable requirements of
Section 8.11. If no successor Relevant Trustee shall have been so
appointed by the Common Securityholder or the Preferred Securityholders and
accepted appointment in the manner required by Section 8.11, any
Securityholder who has been a Securityholder of Trust Securities for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and each
removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give
notice to the Depositor. Each notice shall include the name of the
successor Relevant Trustee and the address of its Corporate Trust Office if
it is the Property Trustee.
Notwithstanding the foregoing or any other provision of this Trust
Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of the
remaining Administrative Trustees if there are at least two of them or (b)
otherwise by the Depositor (with the successor in each case being a Person
who satisfies the eligibility requirement for Administrative Trustees or
Delaware Trustee, as the case may be, set forth in Section 8.7).
Section 8.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Relevant Trustee,
the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall
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execute and deliver an amendment hereto wherein each successor Relevant
Trustee shall accept such appointment and which (a) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Relevant Trustee all the rights, powers,
trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring
Relevant Trustee shall become effective to the extent provided therein and
each such successor Relevant Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or
any successor Relevant Trustee such retiring Relevant Trustee shall duly
assign, transfer and deliver to such successor Relevant Trustee all Trust
Property, all proceeds thereof and money held by such retiring Relevant
Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case
may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Section 8.12. Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware Trustee may
be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which such
Relevant Trustee shall be a party, or any Person succeeding to all or
substantially all the corporate trust business of such Relevant Trustee,
shall be the successor of such Relevant Trustee hereunder, provided such
Person shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto.
Section 8.13. Preferential Collection of Claims Against Depositor or
Trust.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon
the Trust Securities or the property of the Trust or of such other obligor
or their creditors, the Property Trustee (irrespective of whether any
Distributions on the Trust Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of
whether the Property Trustee shall have made any demand on the Trust for
the payment of any past due Distributions) shall be entitled and empowered,
to the fullest extent permitted by law, by intervention in such proceeding
or otherwise:
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(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the Property
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement adjustment or compensation affecting the
Trust Securities or the rights of any Holder thereof or to authorize the
Property Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 8.14. Reports by Property Trustee.
(a) Not later than 60 days after December 31 of each year commencing
with December 31, 199 , the Property Trustee shall transmit to all
Securityholders in accordance with Section 10.8, and to the Depositor, a brief
report dated as of the immediately preceding December 31 with respect to:
(i) its eligibility under Section 8.7 or, in lieu thereof, if to the
best of its knowledge it has continued to be eligible under said Section, a
written statement to such effect; and
(ii) any change in the property and funds in its possession as
Property Trustee since the date of its last report and any action taken by
the Property Trustee in the performance of its duties hereunder which it
has not previously reported and which in its opinion materially affects the
Trust Securities.
(b) In addition the Property Trustee shall transmit to Securityholders such
reports concerning the Property Trustee and its actions under this Trust
Agreement as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Property Trustee with each national stock exchange, the
Nasdaq National Market
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or such other interdealer quotation system or self-regulatory organization upon
which the Trust Securities are listed or traded, with the Commission and with
the Depositor.
Section 8.15. Reports to the Property Trustee.
The Depositor and the Administrative Trustees on behalf of the Trust shall
provide to the Property Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and the compliance
certificate required by Section 314(a) of the Trust Indenture Act in the form,
in the manner and at the times required by Section 314 of the Trust Indenture
Act.
Section 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314 (c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
Section 8.17. Number of Trustees.
(a) The number of Trustees shall be five, provided that the Holder of all
of the Common Securities by written instrument may increase or decrease the
number of Administrative Trustees. The Property Trustee and the Delaware
Trustee may be the same Person.
(b) If a Trustee ceases to hold office for any reason and the number of
Administrative Trustees is not reduced pursuant to Section 8.17(a), or if the
number of Trustees is increased pursuant to Section 8.17(a), a vacancy shall
occur. The vacancy shall be filled with a Trustee appointed in accordance with
Section 8.10.
(c) The death, resignation, retirement, removal, bankruptcy, incompetence
or incapacity to perform the duties of a Trustee shall not operate to annul,
dissolve or terminate the Trust. Whenever a vacancy in the number of
Administrative Trustees shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
Section 8.18. Delegation of Power.
(a) Any Administrative Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose
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of executing any documents contemplated in Section 2.7(a), including any
registration statement or amendment thereto filed with the Commission, or making
any other governmental filing; and
(b) The Administrative Trustees shall have power to delegate from time to
time to such of their number or to the Depositor the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Administrative Trustees or otherwise as the Administrative Trustees may
deem expedient, to the extent such delegation is not prohibited by applicable
law or contrary to the provisions of this Trust Agreement, as set forth herein.
ARTICLE IX.
Termination, Liquidation and Merger
Section 9.1. Termination Upon Expiration Date.
Unless earlier terminated, the Trust shall automatically terminate on
December 31, 2___ (the "Expiration Date"), following the distribution of the
Trust Property in accordance with Section 9.4.
Section 9.2. Early Termination.
The first to occur of any of the following events is an "Early Termination
Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the dissolution
or liquidation of, the Depositor;
(b) the written direction to the Property Trustee from the Depositor at any
time to terminate the Trust and, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, distribute Debentures to
Securityholders in exchange for the Preferred Securities; provided, however,
that [(i) the Property Trustee shall have first received an Opinion of Counsel
to the effect that such distribution will not be a taxable event to the Holders
and (ii)] so long as the Depositor is the holder of the Common Securities, the
prior approval of the Federal Reserve to do so if then required under applicable
capital guidelines or policies of the Federal Reserve;
(c) the redemption of all of the Preferred Securities in connection with
the redemption of all the Debentures; and
(d) the entry of an order for dissolution of the Trust by a court of
competent jurisdiction.
Section 9.3. Termination.
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The respective obligations and responsibilities of the Trustees and the
Trust created and continued hereby shall terminate upon the latest to occur of
the following: (a) the distribution by the Property Trustee to Securityholders
upon the liquidation of the Trust pursuant to Section 9.4, or upon the
redemption of all of the Trust Securities pursuant to Section 4.2, of all
amounts required to be distributed hereunder upon the final payment of the Trust
Securities; (b) the payment of any expenses owed by the Trust; and (c) the
discharge of all administrative duties of the Administrative Trustees, including
the performance of any tax reporting obligations with respect to the Trust or
the Securityholders.
Section 9.4. Liquidation.
(a) If an Early Termination Event specified in clause (a), (b) or (d) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be liquidated by
the Trustees as expeditiously as the Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Debentures,
subject to Section 9.4(d). Notice of liquidation shall be given by the Property
Trustee by first-class mail, postage prepaid mailed not later than 30 nor more
than 60 days prior to the Liquidation Date to each Holder of Trust Securities at
such Holder's address appearing in the Securities Register. All notices of
liquidation shall:
(i) state the Liquidation Date;
(ii) state that from and after the Liquidation Date, the Trust
Securities will no longer be deemed to be Outstanding and any Trust
Securities Certificates not surrendered for exchange will be deemed to
represent a Like Amount of Debentures; and
(iii) provide such information with respect to the mechanics by which
Holders may exchange Trust Securities Certificates for Debentures, or if
Section 9.4(d) applies receive a Liquidation Distribution, as the
Administrative Trustees or the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debentures to Securityholders,
the Property Trustee, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debentures in exchange for
the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding, (ii)
certificates representing a Like Amount of Debentures will be issued to holders
of Trust Securities Certificates, upon surrender of such certificates to the
Administrative Trustees or their agent for exchange, (iii) the Depositor shall
use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange, interdealer quotation system or self-
regulatory organization as the Preferred Securities are then listed, (iv) any
Trust Securities Certificates not so surrendered for exchange will be deemed to
represent a Like Amount of Debentures, accruing interest at the rate provided
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for in the Debentures from the last Distribution Date on which a Distribution
was made on such Trust Securities Certificates until such certificates are so
surrendered (and until such certificates are so surrendered, no payments of
interest or principal will be made to Holders of Trust Securities Certificates
with respect to such Debentures) and (v) all rights of Securityholders holding
Trust Securities will cease, except the right of such Securityholders to receive
Debentures upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other provisions of this Section
9.4, whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debentures in the manner provided
herein is determined by the Property Trustee not to be practical, the Trust
Property shall be liquidated, and the Trust shall be dissolved, wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders, after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the Liquidation Amount per Trust Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"). If, upon any such dissolution, winding
up or termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The holder of the Common Securities
will be entitled to receive Liquidation Distributions upon any such dissolution,
winding-up or termination pro rata (determined as aforesaid) with Holders of
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. Any such determination and liquidation by the Property
Trustee shall be conclusive upon the Securityholders and the Property Trustee
shall have no liability in connection therewith.
Section 9.5. Mergers, Consolidations, Amalgamations or Replacements of the
Trust.
The 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 corporation or other body, except pursuant
to this Section 9.5. At the request of the Depositor, with the consent of the
Administrative Trustees and without the consent of the Holders of the Preferred
Securities, the Property Trustee or the Delaware Trustee, the Trust may 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 the 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
Depositor expressly appoints a trustee of such successor entity possessing the
same powers and duties as the Property Trustee as the holder of the Debentures,
(iii) the Successor Securities are
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<PAGE>
listed or traded, 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 or traded, 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 identical to that of
the Trust, (vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Depositor and the Property Trustee have
received an Opinion of Counsel 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 Trust nor such successor
entity will be required to register as an investment company under the 1940 Act
and (viii) the Depositor 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, the 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 Trust or the successor entity to be classified
as other than a grantor trust for United States Federal income tax purposes.
ARTICLE X.
Miscellaneous Provisions
Section 10.1. Limitation of Rights of Securityholders.
The death or incapacity of any person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such person or any
Securityholder for such person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
Section 10.2. Amendment.
(a) This Trust Agreement may be amended from time to time by the Property
Trustee, the Delaware Trustee and the Depositor without the consent of any
Securityholders, (i) to cure any ambiguity, correct or supplement any provision
herein which may be inconsistent
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with any other provision herein, or to make any other provisions with respect to
matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, or (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the 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 Trust will not be
required to register as an investment company under the 1940 Act; provided,
however, that in the case of clause (i), such action shall not adversely affect
in any material respect the interests of any Securityholder, and any amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of this
Trust Agreement may be amended by the Trustees and the Depositor with (i) the
consent of Trust Securityholders representing not less than a majority (based
upon Liquidation Amounts) of the Trust Securities then Outstanding and (ii)
receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States Federal income tax purposes or the Trust's exemption from status
of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other provision in this Trust
Agreement, without the consent of each affected Securityholder (such consent
being obtained in accordance with Section 6.3 or 6.6 hereof), this 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 Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement, no
Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the Trust to fail or cease to qualify for the exemption from
status of an investment company under the 1940 Act or fail or cease to be
classified as a grantor trust for United States Federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the contrary,
without the consent of the Depositor, this Trust Agreement may not be amended in
a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement is made, the
Administrative Trustees shall promptly provide to the Depositor a copy of such
amendment.
(g) Neither the Property Trustee nor the Delaware Trustee shall be required
to enter into any amendment to this Trust Agreement which affects its own
rights, duties or immunities
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under this Trust Agreement or would otherwise expose the Property Trustee to any
liability or be contrary to applicable law. The Property Trustee shall be
entitled to receive an Opinion of Counsel and an Officers' Certificate stating
that any amendment to this Trust Agreement is in compliance with this Trust
Agreement.
Section 10.3. Separability.
In case any provision in this Trust Agreement or in the Trust Securities
Certificates shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 10.4. Governing Law.
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND THE TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF DELAWARE. THE PROVISIONS OF SECTION 3540 AND 3561 OF
TITLE 12 OF THE DELAWARE CODE SHALL NOT APPLY TO THIS TRUST.
Section 10.5. Payments Due on Non-Business Day.
If the date fixed for any payment on any Trust Security shall be a day that
is not a Business Day, then such payment need not be made on such date but may
be made on the next succeeding day that is a Business Day (except as otherwise
provided in Sections 4.1(a) and 4.2(d)), with the same force and effect as
though made on the date fixed for such payment, and no interest shall accrue
thereon for the period after such date.
Section 10.6. Successors.
This Trust Agreement shall be binding upon and shall inure to the benefit
of any successor to the Depositor, the Trust or the Relevant Trustee, including
any successor by operation of law. Except in connection with a consolidation,
merger or sale involving the Depositor that is permitted under Article Eight of
the Indenture and pursuant to which the assignee agrees in writing to perform
the Depositor's obligations hereunder, the Depositor shall not assign its
obligations hereunder.
Section 10.7. Headings.
The Article and Section headings are for convenience only and shall not
affect the construction of this Trust Agreement.
Section 10.8. Reports, Notices and Demands.
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Any report, notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (a) in the case of a
Preferred Securityholder, to such Preferred Securityholder as such
Securityholder's name and address may appear on the Securities Register; and (b)
in the case of the Common Securityholder or the Depositor, to BankAmerica
Corporation, 555 California Street, San Francisco, California 94104, Attention:
Treasurer, Facsimile No.: (415) 622-3611. Any notice to Preferred
Securityholders shall also be given to such owners as have, within two years
preceding the giving of such notice, filed their names and addresses with the
Property Trustee for that purpose. Such notice, demand or other communication
to or upon a Securityholder shall be deemed to have been sufficiently given or
made, for all purposes, upon hand delivery, mailing or transmission.
Any notice, demand or other communication which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon the
Trust, the Property Trustee, the Delaware Trustee or the Administrative Trustees
shall be given in writing by deposit thereof, first class postage prepaid, in
the United States mail, hand delivery or overnight courier or by facsimile
transmission (confirmed by delivery of the original), in each case, addressed
(until another address is published by the Trust) as follows: (a) with respect
to the Trust, to the Delaware Trustee, the Property Trustee, and the
Administrative Trustees at their respective addresses set forth below; (b) with
respect to the Property Trustee, to Bankers Trust Company, Four Albany Street,
New York, New York 10004 - Attention: Jenna Kaufman (c) with respect to the
Delaware Trustee, to Bankers Trust (Delaware), 1001 Jefferson Street, Suite 550,
Wilmington, Delaware 19801 - Attention: M. Lisa Wilkins; and (d) with respect
to the Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention Administrative Trustees of BankAmerica
Capital /*/." Such notice, demand or other communication to or upon the Trust
or the Property Trustee shall be deemed to have been sufficiently given or made
only upon actual receipt of the writing by the Trust or the Property Trustee.
Section 10.9. Agreement Not to Petition.
Each of the Trustees and the Depositor agree for the benefit of the
Securityholders that, until at least one year and one day after the Trust has
been terminated in accordance with Article IX, they shall not file, or join in
the filing of, a petition against the Trust under any bankruptcy, insolvency,
reorganization or other similar law (including, without limitation, the United
States Bankruptcy Code) (collectively, "Bankruptcy Laws") or otherwise join in
the commencement of any proceeding against the Trust under any Bankruptcy Law.
In the event the Depositor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that at the expense
of the Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
- --------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
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or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be stopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustees or the
Trust may assert. The provisions of this Section 10.9 shall survive the
termination of this Trust Agreement.
Section 10.10. Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a trustee for
the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Trust Agreement by any
of the provisions of the Trust Indenture Act, such required provision shall
control. If any provision of this Trust Agreement modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
latter provision shall be deemed to apply to this Trust Agreement as so modified
or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
Section 10.11. Acceptance of Terms of Trust Agreement, Guarantee and
Indenture.
THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST THEREIN BY
OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER, WITHOUT ANY SIGNATURE
OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND
THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH
SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE TRUST AND
SUCH SECURITYHOLDER AND SUCH OTHERS.
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BankAmerica Corporation
By:
-------------------------------------
Name:
Title:
Bankers Trust Company,
as Property Trustee
By:
-------------------------------------
Name:
Title:
Bankers Trust (Delaware),
as Delaware Trustee
By:
-------------------------------------
Name:
Title:
----------------------------------------
Shaun M. Maguire,
as Administrative Trustee
----------------------------------------
Richard A. Laiderman,
as Administrative Trustee
----------------------------------------
Stephen E. Wagner,
as Administrative Trustee
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EXHIBIT A
CERTIFICATE OF TRUST
OF
BANKAMERICA CAPITAL /*/
THIS Certificate of Trust of BankAmerica Capital /*/ (the "Trust"),
dated as of November 4, 1996, is being duly executed and filed by the
undersigned, as trustee, to form a business trust under the Delaware Business
Trust Act (12 Del. C. (S)3801, et seq.).
------- -- ----
1. Name. The name of the business trust formed hereby is
----
BankAmerica Capital /*/.
2. Delaware Trustee. The name and business address of the trustee
----------------
of the Trust in the State of Delaware are Bankers Trust (Delaware), 1001
Jefferson Street, Wilmington, New Castle County, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective
--------------
upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE), not in its individual
capacity but solely as trustee of the Trust
/s/ M. Lisa Wilkins
-----------------------------------------------
Name: M. Lisa Wilkins
Title: Assistant Secretary
- ---------------
/*/ Insert I, II, III, IV, V, VI, VII, or VIII as applicable.
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EXHIBIT B
The Depository Trust Company,
55 Water Street, 49th Floor,
New York, New York 10041-0099 __________, 199_
Attention: _______________________________
General Counsel's Office
Re: BankAmerica Capital/*/ ____% Preferred Securities, Series /*/
Ladies and Gentlemen:
The purpose of this letter is to set forth certain matters relating to the
issuance and deposit with The Depository Trust Company ("DTC") of the
BankAmerica Capital /*/ ____% Preferred Securities, Series /*/ (the "Preferred
Securities"), of BankAmerica Capital /*/, a Delaware business trust (the
"Issuer"), formed pursuant to a Trust Agreement between BankAmerica Corporation
("BankAmerica Corporation") and Bankers Trust Company, as Property Trustee,
Bankers Trust (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein. The payment of distributions on the Preferred Securities, and
payments due upon liquidation of Issuer or redemption of the Preferred
Securities, to the extent the Issuer has funds available for the payment thereof
are guaranteed by BankAmerica Corporation to the extent set forth in a Guarantee
Agreement dated __________ __, ____ by BankAmerica Corporation with respect to
the Preferred Securities. BankAmerica Corporation and the Issuer propose to
sell the Preferred Securities to certain Underwriters (the "Underwriters")
pursuant to an Underwriting Agreement dated __________ __, 199_ by and among the
Underwriters, the Issuer and BankAmerica Corporation dated __________ __, ____,
and the Underwriters wish to take delivery of the Preferred Securities through
DTC. Bankers Trust Company is acting as transfer agent and registrar with
respect to the Preferred Securities (the "Transfer Agent and Registrar").
To induce DTC to accept the Preferred Securities as eligible for deposit at
DTC, and to act in accordance with DTC's rules with respect to the Preferred
Securities, the Issuer, the Transfer Agent and Registrar make the following
representations to DTC:
1. Prior to the closing of the sale of the Preferred Securities to the
Underwriters, which is expected to occur on or about __________ __, ____, there
shall be deposited with DTC one or more global certificates (individually and
collectively, the "Global Certificate") registered in the name of DTC's
Preferred Securities nominee, Cede & Co., representing an aggregate of
____________ Preferred Securities and bearing the following legend:
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
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Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to
Issuer or its agent for registration of transfer, exchange, or
payment, and any certificate issued is registered in the name of Cede
& Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Preferred Securities will be issued, and may be transferred, only in blocks
having not less than ___ Preferred Securities.
2. The Amended and Restated Trust Agreement of the Issuer provides for the
voting by holders of the Preferred Securities under certain limited
circumstances (with no provision for revocation of consents or votes by
subsequent holders). The Issuer shall establish a record date for such purposes
and shall, to the extent possible, give DTC notice of such record date not less
than 15 calendar days in advance of such record date.
3. In the event of a stock split, conversion, recapitalization,
reorganization or any other similar transaction resulting in the cancellation of
all or any part of the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice of such event at least 5
business days prior to the effective date of such event.
4. In the event of distribution on, or an offering or issuance of rights
with respect to, the Preferred Securities outstanding, the Issuer or the
Transfer Agent and Registrar shall send DTC a notice specifying: (a) the amount
of and conditions, if any, applicable to the payment of any such distribution or
any such offering or issuance of rights; (b) any applicable expiration or
deadline date, or any date by which any action on the part of the holders of
Preferred Securities is required; and (c) the date any required notice is to be
mailed by or on behalf of the Issuer to holders of Preferred Securities or
published by or on behalf of the Issuer (whether by mail or publication, the
"Publication Date"). Such notice shall be sent to DTC by a secure means (e.g.,
legible telecopy, registered or certified mail, overnight delivery) in a timely
manner designed to assure that such notice is in DTC's possession no later than
the close of business on the business day before the Publication Date. The
Issuer or the Transfer Agent and Registrar will forward such notice either in a
separate secure transmission for each CUSIP number or in a secure transmission
of multiple CUSIP numbers (if applicable) that includes a manifest or list of
each CUSIP number submitted in that transmission. (The party sending such
notice shall have a method to verify subsequently the use of such means and the
timeliness of such notice.) The Publication Date shall be not less than 30
calendar days nor more than 60 calendar days prior to the payment of any such
distribution or any such offering or issuance of rights with respect to the
Preferred Securities. After establishing the amount of payment to be made on
the Preferred Securities, the Issuer or the Transfer Agent and Registrar will
notify DTC's Dividend Department of such payment 5 business days prior to
payment date. Notices to DTC's Dividend
2
<PAGE>
Department by telecopy shall be sent to (212) 709-1723. Such notices by mail or
by any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
The Issuer or the Transfer Agent and Registrar shall confirm DTC's receipt
of such telecopy by telephoning the Dividend Department at (212) 709-1270.
5. In the event of a redemption by the Issuer of the Preferred Securities,
notice specifying the terms of the redemption and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC
not less than 30 calendar days prior to such event by a secure means in the
manner set forth in paragraph 4. Such redemption notice shall be sent to DTC's
Call Notification Department at (516) 227-4164 or (516) 227-4190, and receipt of
such notice shall be confirmed by telephoning (516) 227-4070. Notice by mail or
by any other means shall be sent to:
Call Notification Department
The Depository Trust Company
711 Stewart Avenue
Garden City, New York 11530-4719
6. In the event of any invitation to tender the Preferred Securities,
notice specifying the terms of the tender and the Publication Date of such
notice shall be sent by the Issuer or the Transfer Agent and Registrar to DTC by
a secure means and in a timely manner as described in paragraph 4. Notices to
DTC pursuant to this paragraph and notices of other corporate actions (including
mandatory tenders, exchanges and capital changes) shall be sent, unless
notification to another department is expressly provided for herein, by telecopy
to DTC's Reorganization Department at (212) 709-1093 or (212) 709-1094 and
receipt of such notice shall be confirmed by telephoning (212) 709-6884, or by
mail or any other means to:
Manager, Reorganization Department
Reorganization Window
The Depository Trust Company
7 Hanover Square, 23rd Floor
New York, New York 10004-2695
7. All notices and payment advices sent to DTC shall contain the CUSIP
number or numbers of the Preferred Securities and the accompanying designation
of the Preferred
3
<PAGE>
Securities, which, as of the date of this letter, is "BankAmerica Capital /*/
____% Preferred Securities, Series /*/.
8. Distribution payments or other cash payments with respect to the
Preferred Securities evidenced by the Global Certificate shall be received by
Cede & Co., as nominee of DTC, or its registered assigns in same day funds no
later than 2:30 p.m. (Eastern Time) on each payment date. Such funds shall be
made payable to the order of Cede & Co., and shall be wired in accordance with
the instructions in the attached Principal and Income Payments Rider.
9. DTC may direct the Issuer and the Transfer Agent and Registrar to use
any other telecopy number or address of DTC as the number or address to which
notices or payments may be sent.
10. In the event of a conversion, redemption, or any other similar
transaction (e.g., tender made and accepted in response to the Issuer's or the
Transfer Agent and Registrar's invitation) necessitating a reduction in the
aggregate number of Preferred Securities outstanding evidenced by Global
Certificates, DTC, in its discretion: (a) may request the Issuer or the Transfer
Agent and Registrar to issue and countersign a new Global Certificate; or (b)
may make an appropriate notation on the Global Certificate indicating the date
and amount of such reduction.
11. DTC may discontinue its services as a securities depositary with
respect to the Preferred Securities at any time by giving reasonable notice to
the Issuer and the Transfer Agent and Registrar (at which time DTC will confirm
with the Issuer or the Transfer Agent and Registrar the aggregate number of
Preferred Securities deposited with it) and discharging its responsibilities
with respect thereto under applicable law. Under such circumstances, the Issuer
may determine to make alternative arrangements for book-entry settlement for the
Preferred Securities, make available one or more separate global certificates
evidencing Preferred Securities to any Participant having Preferred Securities
credited to its DTC account, or issue definitive Preferred Securities to the
beneficial holders thereof, and in any such case, DTC agrees to cooperate fully
with the Issuer and the Transfer Agent and Registrar, and to return the Global
Certificate, duly endorsed for transfer as directed by the Issuer or the
Transfer Agent and Registrar, together with any other documents of transfer
reasonably requested by the Issuer or the Transfer Agent and Registrar.
12. In the event that the Issuer determines that beneficial owners of
Preferred Securities shall be able to obtain definitive Preferred Securities,
the Issuer or the Transfer Agent and Registrar shall notify DTC of the
availability of certificates. In such event, the Issuer or the Transfer Agent
and Registrar shall issue, transfer and exchange certificates in appropriate
amounts, as required by DTC and others, and DTC agrees to cooperate fully with
the Issuer and the Transfer Agent and Registrar and to return the Global
Certificate, duly endorsed for transfer
- ----------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
4
<PAGE>
as directed by the Issuer or the Transfer Agent and Registrar, together with any
other documents of transfer reasonably requested by the Issuer or the Transfer
Agent and Registrar.
13. This letter may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Nothing herein shall be deemed to require the Transfer Agent and Registrar
to advance funds on behalf of BankAmerica Capital /*/.
Very truly yours,
BANKAMERICA CAPITAL /*/
(as Issuer)
By:
------------------------------------
Name:
Title:
(AS TRANSFER AGENT AND REGISTRAR)
BANKERS TRUST COMPANY,
as Trustee
By:
------------------------------------
Name:
Title:
RECEIVED AND ACCEPTED:
THE DEPOSITORY TRUST COMPANY
By:
--------------------------------------
Authorized Officer
- -----------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
5
<PAGE>
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
Certificate Number
Number of Common Securities
C-1
Certificate Evidencing Common Securities
of
BankAmerica Capital /*/
____% Common Securities
(liquidation amount $____ per Common Security)
BankAmerica Capital /*/, a statutory business trust formed under the laws of
the Business Trust Act of the State of Delaware (the "Trust"), hereby certifies
that BankAmerica Corporation (the "Holder") is the registered owner of
( ) common securities of the Trust representing beneficial interests of the
Trust and designated the ____% Common Securities (liquidation amount $____ per
Common Security) (the "Common Securities"). In accordance with Section 5.10 of
the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , , as the same may be amended from time to
time (the "Trust Agreement") including the designation of the terms of the
Common Securities as set forth therein. The Trust will furnish a copy of the
Trust Agreement to the Holder without charge upon written request to the Trust
at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
- ------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
1
<PAGE>
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
BANKAMERICA CAPITAL /*/
By:
-----------------------------------------
Name:
Administrative Trustee
- ------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
2
<PAGE>
EXHIBIT D
AGREEMENT AS TO EXPENSES AND LIABILITIES
AGREEMENT dated as of __________ __, 199_, between BankAmerica Corporation,
a Delaware corporation ("BankAmerica Corporation"), and BankAmerica Capital /*/,
a Statutory business trust formed under the Business Trust Act of the State of
Delaware (the "Trust").
WHEREAS, the Trust intends to issue its Common Securities (the "Common
Securities") to and receive Debentures from BankAmerica Corporation and to issue
and sell ____% Cumulative Quarterly Income Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _______ __, 199_ as the same may be amended from time to time (the "Trust
Agreement");
WHEREAS, BankAmerica Corporation will directly or indirectly own all of the
Common Securities of the Trust and will issue the Debentures;
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase BankAmerica Corporation hereby agrees shall
benefit BankAmerica Corporation and which purchase BankAmerica Corporation
acknowledges will be made in reliance upon the execution and delivery of this
Agreement, BankAmerica Corporation and Trust hereby agree as follows:
ARTICLE I.
SECTION 1.1. Guarantee by BankAmerica Corporation.
Subject to the terms and conditions hereof, BankAmerica Corporation hereby
irrevocably and unconditionally guarantees to each person or entity to whom the
Trust is now or hereafter becomes indebted or liable (the "Beneficiaries") the
full payment, when and as due, of any and all Obligations (as hereinafter
defined) to such Beneficiaries. As used herein, "Obligations" means any costs,
expenses or liabilities of the Trust (including, without limitation, any tax
liability of the Trust), other than obligations of the Trust to pay to holders
of any Preferred Securities or other similar interests in the Trust the amounts
due such holders pursuant to the terms of the Preferred Securities or such other
similar interests, as the case may be. This Agreement is intended to be for the
benefit of, and to be enforceable by, all such Beneficiaries, whether or not
such Beneficiaries have received notice hereof.
- --------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
1
<PAGE>
SECTION 1.2. Term of Agreement.
This Agreement shall terminate and be of no further force and effect upon
the later of (a) the date on which full payment has been made of all amounts
payable to all holders of all the Preferred Securities (whether upon redemption,
liquidation, exchange or otherwise) and (b) the date on which there are no
Beneficiaries remaining; provided, however, that this Agreement shall continue
to be effective or shall be reinstated, as the case may be, if at any time any
holder of Preferred Securities or any Beneficiary must restore payment of any
sums paid under the Preferred Securities, under any Obligation, under the
Guarantee Agreement dated the date hereof by BankAmerica Corporation and Bankers
Trust Company, as guarantee trustee or under this Agreement for any reason
whatsoever. This Agreement is continuing, irrevocable, unconditional and
absolute.
SECTION 1.3. Waiver of Notice.
BankAmerica Corporation hereby waives notice of acceptance of this
Agreement and of any Obligation to which it applies or may apply, and
BankAmerica Corporation hereby waives presentment, demand for payment, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
SECTION 1.4. No Impairment.
The obligations, covenants, agreements and duties of BankAmerica
Corporation under this Agreement shall in no way be affected or impaired by
reason of the happening from time to time of any of the following:
(a) the extension of time for the payment by the Trust of all or any
portion of the Obligations or for the performance of any other obligation under,
arising out of, or in connection with, the obligations;
(b) any failure, omission, delay or lack of diligence on the part of the
Beneficiaries to enforce, assert or exercise any right, privilege, power or
remedy conferred on the Beneficiaries with respect to the Obligations or any
action on the part of the Trust granting indulgence or extension of any kind; or
(c) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust.
There shall be no obligation of the Beneficiaries to give notice to, or obtain
the consent of, BankAmerica Corporation with respect to the happening of any of
the foregoing.
SECTION 1.5. Enforcement.
2
<PAGE>
A Beneficiary may enforce this Agreement directly against BankAmerica
Corporation and BankAmerica Corporation waives any right or remedy to require
that any action be brought against the Trust or any other person or entity
before proceeding against BankAmerica Corporation.
SECTION 1.6. Subrogation.
BankAmerica Corporation shall be subrogated to all (if any) rights of the
Trust in respect of any amounts paid to the Beneficiaries by BankAmerica
Corporation under this Agreement; provided, however, that BankAmerica
Corporation shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Agreement, if, at the time of any such
payment, any amounts are due and unpaid under this Agreement.
ARTICLE II.
SECTION 2.1. Binding Effect.
All guarantees and agreements contained in this Agreement shall bind the
successors, assigns, receivers, trustees and representatives of BankAmerica
Corporation and shall inure to the benefit of the Beneficiaries.
SECTION 2.2. Amendment.
So long as there remains any Beneficiary or any Preferred Securities of any
series are outstanding, this Agreement shall not be modified or amended in any
manner adverse to such Beneficiary or to the holders of the Preferred
Securities.
SECTION 2.3. Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor by facsimile transmission (confirmed by mail), telex or by registered
or certified mail, addressed as follows (and if so given, shall be deemed given
when mailed or upon receipt of an answer-back, if sent by telex):
BankAmerica Capital /*/
c/o Bankers Trust (Delaware)
1001 Jefferson Street, Suite 550
Wilmington, Delaware 19801
Attention: M. Lisa Wilkins
- -----------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
3
<PAGE>
BankAmerica Corporation
555 California Street
San Francisco, California 94104
Facsimile No.: (415) 622-3611
Attention: Treasurer
4
<PAGE>
Section 2.4. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
This Agreement is executed as of the day and year first above written.
BANKAMERICA CORPORATION
By:
------------------------------------
Name:
Title:
BANKAMERICA CAPITAL /*/
By:
------------------------------------
Name:
Administrative Trustee
- ---------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
5
<PAGE>
EXHIBIT E
IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT--This Preferred
Security is a Global Certificate within the meaning of the Trust Agreement
hereinafter referred to and is registered in the name of The Depository Trust
Company (the "Depository") or a nominee of the Depository. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than the Depository or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except in
limited circumstances.
Unless this Preferred Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to BankAmerica Capital
/*/ or its agent for registration of transfer, exchange or payment, and any
Preferred Security issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of The Depository Trust
Company and any payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THE PREFERRED SECURITIES EVIDENCED HEREBY 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.
Certificate Number
Number of Preferred Securities
P-
CUSIP NO.
Certificate Evidencing Preferred Securities
of
BankAmerica Capital /*/
% Cumulative Preferred Securities,
----
Series /*/
(liquidation amount $ per Preferred Security)
----
- ------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
1
<PAGE>
BankAmerica Capital /*/, a statutory business trust formed under the laws of
the State of Delaware (the "Trust"), hereby certifies that (the "Holder") is the
registered owner of ( ) preferred securities of the Trust representing an
undivided beneficial interest in the assets of the Trust and designated the
BankAmerica Capital /*/ ____% Cumulative Quarterly Income Preferred Securities,
Series /*/ (liquidation amount $____ per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section
5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of , , as the same may be amended from time to time
(the "Trust Agreement") including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement entered into by BankAmerica Corporation, a ________
corporation, and Bankers Trust Company, as guarantee trustee, dated as of
_________ __, 199_, (the "Guarantee"), to the extent provided therein. The Trust
will furnish a copy of the Trust Agreement and the Guarantee to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust Agreement
and is entitled to the benefits thereunder.
[This Certificate is not valid unless countersigned by the Securities
Registrar.]
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this day of , .
BANKAMERICA CAPITAL /*/
By:
------------------------------------
Name:
Administrative Trustee
[Countersigned:
BANKERS TRUST COMPANY
By:
---------------------------------]
Securities Registrar
- -----------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
2
<PAGE>
[REVERSE OF CERTIFICATE]
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
------------------
(Transfers of
- --------------------------------------------------
fewer than 100 Preferred Securities are prohibited)
Preferred Securities represented by the within Certificate to:
- --------------------------------------------------------------------------------
(Insert assignee's name)
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------
- --------------------------------------------------------------------------------
agent to transfer said Preferred Securities on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
----------------
Signature:
----------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Preferred
- --------------------
Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions with
membership in an approved signature guarantee medallion program), pursuant to
S.E.C. Rule 17Ad-15.
3
<PAGE>
Exhibit 4(y)
================================================================================
GUARANTEE AGREEMENT
Between
BANKAMERICA CORPORATION
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
dated as of
________ __, 199__
BANKAMERICA CAPITAL /*/
================================================================================
- --------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I. DEFINITIONS............................................... 1
Section 1.1. Definitions............................................ 1
ARTICLE II. TRUST INDENTURE ACT...................................... 3
Section 2.1. Trust Indenture Act; Application....................... 3
Section 2.2. List of Holders........................................ 3
Section 2.3. Reports by the Guarantee Trustee....................... 4
Section 2.4. Periodic Reports to Guarantee Trustee.................. 4
Section 2.5. Evidence of Compliance with Conditions Precedent....... 4
Section 2.6. Events of Default; Waiver.............................. 4
Section 2.7. Event of Default; Notice............................... 4
Section 2.8. Conflicting Interests.................................. 4
ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE...... 5
Section 3.1. Powers and Duties of the Guarantee Trustee............. 5
Section 3.2. Certain Rights of Guarantee Trustee.................... 6
Section 3.3. Indemnity.............................................. 7
ARTICLE IV. GUARANTEE TRUSTEE........................................ 7
Section 4.1. Guarantee Trustee; Eligibility......................... 7
Section 4.2. Appointment, Removal and Resignation of the Guarantee
Trustee................................................ 8
ARTICLE V. GUARANTEE................................................... 8
Section 5.1. Guarantee.............................................. 8
Section 5.2. Waiver of Notice and Demand............................ 8
Section 5.3. Obligations Not Affected............................... 9
Section 5.4. Rights of Holders...................................... 9
Section 5.5. Guarantee of Payment................................... 9
Section 5.6. Subrogation............................................ 10
Section 5.7. Independent Obligations................................ 10
ARTICLE VI. COVENANTS AND SUBORDINATION.............................. 10
Section 6.1. Subordination.......................................... 10
Section 6.2. Pari Passu Guarantees.................................. 10
ARTICLE VII. TERMINATION............................................. 10
Section 7.1. Termination............................................ 10
ARTICLE VIII. MISCELLANEOUS.......................................... 11
Section 8.1. Successors and Assigns................................. 11
Section 8.2. Amendments............................................. 11
Section 8.3. Notices................................................ 11
Section 8.4. Benefit................................................ 12
Section 8.5. Interpretation......................................... 12
Section 8.6. Governing Law.......................................... 13
<PAGE>
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _______ __, 199__, is executed and
delivered by BANKAMERICA CORPORATION, a Delaware corporation (the "Guarantor")
having its principal office at 555 California Street, San Francisco, California
94104, and BANKERS TRUST COMPANY, a New York banking corporation, as trustee
(the "Guarantee Trustee"), for the benefit of the Holders (as defined herein)
from time to time of the Preferred Securities (as defined herein) of BankAmerica
Capital /*/, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement, dated as of
________ __, 199__ (the "Trust Agreement"), among the Guarantor, as Depositor,
the Property Trustee and the Delaware Trustee named therein and the Holders from
time to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing $___________ aggregate Liquidation Amount (as defined in the
Trust Agreement) of its ____% Preferred Securities, Series /*/, Liquidation
Amount $___ per preferred security (the "Preferred Securities") representing
preferred undivided beneficial interests in the assets of the Issuer and having
the terms set forth in the Trust Agreement;
WHEREAS, the Preferred Securities will be issued by the Issuer and the
proceeds thereof, together with the proceeds from the issuance of the Issuer's
Common Securities (as defined below), will be used to purchase the Debentures
(as defined in the Trust Agreement) of the Guarantor which will be deposited
with Bankers Trust Company, as Property Trustee under the Trust Agreement, as
trust assets; and
WHEREAS, as incentive for the Holders to purchase Preferred Securities the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth herein, to pay to the Holders of the Preferred Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by each Holder of Preferred
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee Agreement for the
benefit of the Holders from time to time of the Preferred Securities.
ARTICLE I. DEFINITIONS
Section 1.1. Definitions.
As used in this Guarantee Agreement, the terms set forth below shall, unless
the context otherwise requires, have the following meanings. Capitalized or
otherwise defined terms used but not otherwise defined herein shall have the
meanings assigned to such terms in the Trust Agreement as in effect on the date
hereof.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person; provided, however, that an Affiliate of the
Guarantor shall not be deemed to be an Affiliate of the Issuer. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
- ----------------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
<PAGE>
"Board of Directors" means either the board of directors of the Guarantor or
any committee of that board duly authorized to act hereunder.
"Common Securities" means the securities representing common undivided
beneficial interests in the assets of the Issuer.
"Event of Default" means a default by the Guarantor on any of its payment or
other obligations under this Guarantee Agreement; provided, however, that,
except with respect to a default in payment of any Guarantee Payments, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"Guarantee Payments" means the following payments or distributions, without
duplication, with respect to the Preferred Securities, to the extent not paid or
made by or on behalf of the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Trust Agreement) required to be paid on the Preferred Securities,
to the extent the Issuer shall have funds on hand available therefor at such
time; (ii) the redemption price, including all accrued and unpaid Distributions
to the date of redemption (the "Redemption Price"), with respect to any
Preferred Securities called for redemption by the Issuer, to the extent the
Issuer shall have funds on hand available therefor at such time; and (iii) upon
a voluntary or involuntary termination, winding-up or liquidation of the Issuer,
unless Debentures are distributed to the Holders, the lesser of (a) the
aggregate of the Liquidation Amount of $___ per Preferred Security plus accrued
and unpaid Distributions on the Preferred Securities to the date of payment and
(b) the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee Agreement, and thereafter means each such Successor
Guarantee Trustee.
"Holder" means any holder, as registered on the books and records of the
Issuer, of any Preferred Securities; provided, however, that in determining
whether the holders of the requisite percentage of Preferred Securities have
given any request, notice, consent or waiver hereunder, "Holder" shall not
include the Guarantor, the Guarantee Trustee, or any Affiliate of the Guarantor
or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as of _________ __,
199__, as supplemented and amended between the Guarantor and Bankers Trust
Company, as trustee.
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount of the Securities" means, except as provided
by the Trust Indenture Act, a vote by the Holder(s), voting separately as a
class, of more than 50% of the Liquidation Amount of all then outstanding
Preferred Securities issued by the Issuer.
"Officers' Certificate" means, with respect to any Person, a certificate
signed by the Chairman or a Vice Chairman of the Board of Directors of such
Person or the President or a Vice President of such Person, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
such Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee Agreement shall include:
(a) a statement that each officer signing the Officers' Certificate has read
the covenant or condition and the definitions relating thereto;
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(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Officers' Certificate;
(c) a statement that each officer has made such examination or investigation
as, in such officer's opinion, is necessary to enable such officer to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether, in the opinion of each officer, such condition
or covenant has been complied with.
"Person" means a legal person, including any individual, corporation, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.
"Responsible Officer" means, when used with respect to the Guarantee Trustee,
any officer assigned to the Corporate Trust Office, including any managing
director, vice president, assistant vice president, assistant treasurer,
assistant secretary or any other officer of the Guarantee Trustee customarily
performing functions similar to those performed by any of the above designated
officers, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Successor Guarantee Trustee" means a successor Guarantee Trustee possessing
the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II. TRUST INDENTURE ACT
Section 2.1. Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Guarantee Agreement and
shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee Agreement
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
Section 2.2. List of Holders.
(a) The Guarantor shall furnish or cause to be furnished to the Guarantee
Trustee (a) semiannually, on or before June 30 and December 31 of each year, a
list, in such form as the Guarantee Trustee may reasonably require, of the names
and addresses of the Holders ("List of Holders") as of a date not more than 15
days prior to the delivery thereof, and (b) at such other times as the Guarantee
Trustee may request in writing, within 30 days after the receipt by the
Guarantor of any such request, a List of Holders as of a date not more than 15
days prior to the time such list is furnished, in each case to the extent such
information is in the possession or control of the Guarantor and is not
identical to a previously supplied list of Holders or has not otherwise been
received by the Guarantee Trustee in its capacity as such. The Guarantee Trustee
may destroy any List of Holders previously given to it on receipt of a new List
of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Section
311(a), Section 311(b) and Section 312(b) of the Trust Indenture Act.
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Section 2.3. Reports by the Guarantee Trustee.
Not later than 60 days after December 31 of each year, commencing 60 days
after December 31, 199__, the Guarantee Trustee shall provide to the Holders
such reports as are required by Section 313 of the Trust Indenture Act, if any,
in the form and in the manner provided by Section 313 of the Trust Indenture
Act. The Guarantee Trustee shall also comply with the requirements of Section
313(d) of the Trust Indenture Act.
Section 2.4. Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the Securities and
Exchange Commission and the Holders such documents, reports and information, if
any, as required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
Section 2.5. Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with such conditions precedent, if any, provided for in this
Guarantee Agreement that relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c)(1) may be given in the form of an
Officers' Certificate.
Section 2.6. Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of the Preferred Securities
may, by vote, on behalf of the Holders, waive any past Event of Default and its
consequences. Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee Agreement, but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent therefrom.
Section 2.7. Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of an
Event of Default, transmit by mail, first class postage prepaid, to the Holders,
notices of all Events of Default known to the Guarantee Trustee, unless such
Events of Default have been cured before the giving of such notice, provided,
that, except in the case of a default in the payment of a Guarantee Payment, the
Guarantee Trustee shall be protected in withholding such notice if and so long
as the Board of Directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Guarantee Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any Event
of Default unless a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice, of such Event of
Default.
Section 2.8. Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Guarantee Agreement for the purposes of clause (i) of the first proviso
contained in Section 310(b) of the Trust Indenture Act.
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ARTICLE III. POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
Section 3.1. Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee Trustee for the
benefit of the Holders, and the Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder exercising his or her rights
pursuant to Section 5.4(iv) or to a Successor Guarantee Trustee on acceptance by
such Successor Guarantee Trustee of its appointment to act as Successor
Guarantee Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents have
been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the Guarantee
Trustee shall enforce this Guarantee Agreement for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event of Default and
after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Guarantee Agreement, and no implied covenants shall be read into this Guarantee
Agreement against the Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee Agreement, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
(d) No provision of this Guarantee Agreement shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after the curing or
waiving of all such Events of Default that may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall be
determined solely by the express provisions of this Guarantee Agreement,
and the Guarantee Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in this Guarantee
Agreement; and
(B) in the absence of bad faith on the part of the Guarantee Trustee,
the Guarantee Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee and conforming
to the requirements of this Guarantee Agreement; but in the case of any
such certificates or opinions that by any provision hereof or of the Trust
Indenture Act are specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Guarantee
Agreement;
(ii) the Guarantee Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer of the Guarantee Trustee, unless
it shall be proved that the Guarantee Trustee was negligent in ascertaining
the pertinent facts upon which such judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in Liquidation Amount of
the Preferred Securities relating to the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee, or
exercising any trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
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(iv) no provision of this Guarantee Agreement shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is not assured to
it under the terms of this Guarantee Agreement or indemnity satisfactory to it
against such risk or liability is not assured to it.
Section 3.2. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document reasonably believed by it to be
genuine and to have been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor contemplated by this Guarantee
Agreement shall be sufficiently evidenced by an Officers' Certificate unless
otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee Agreement, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting to take any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate.
(iv) The Guarantee Trustee may consult with legal counsel, and the advice
or opinion of such legal counsel with respect to legal matters shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or opinion. Such legal counsel may be legal
counsel to the Guarantor or any of its Affiliates and may be one of its
employees. The Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement from
any court of competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Guarantee Agreement at the request
or direction of any Holder, unless such Holder shall have provided to the
Guarantee Trustee such security and indemnity satisfactory to it, against the
costs, expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction, including
such reasonable advances as may be requested by the Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(v) shall be taken to
relieve the Guarantee Trustee, upon the occurrence of an Event of Default, of
its obligation to exercise the rights and powers vested in it by this
Guarantee Agreement.
(vi) The Guarantee Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document,
but the Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents or attorneys, and the Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee Agreement the
Guarantee Trustee shall deem it desirable to receive instructions with respect
to enforcing any remedy or right or taking any other action
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hereunder, the Guarantee Trustee (A) may request and shall be entitled to
receive instructions from the Holders, (B) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (C) shall be fully protected in acting in accordance with such
instructions.
(b) No provision of this Guarantee Agreement shall be deemed to impose any
duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
Section 3.3. Compensation; Indemnity; Fees.
The Guarantor agrees:
(a) to pay to the Guarantee Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to reimburse the Guarantee
Trustee upon request for all reasonable expenses, disbursements and advances
incurred or made by the Guarantee Trustee in accordance with any provision of
this Guarantee Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(c) to indemnify the Guarantee Trustee and its directors, officers, agents and
employees for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on the part of the Guarantee Trustee,
arising out of or in connection with the acceptance or administration of this
Guarantee 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 hereunder. The Guarantee Trustee will not claim or
exact any lien or charge on any Guarantee Payments as a result of any amount due
to it under this Guarantee Agreement.
The provisions of this Section 3.3 shall survive the termination of this
Guarantee Agreement or the earlier resignation or removal of the Guarantee
Trustee.
ARTICLE IV. GUARANTEE TRUSTEE
Section 4.1. Guarantee Trustee: Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust Indenture Act to
act as such and has a combined capital and surplus of at least $50,000,000,
and shall be a corporation meeting the requirements of Section 310(a) of the
Trust Indenture Act. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
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(b) If at any time the Guarantee Trustee shall cease to be eligible to so act
under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting interest"
within the meaning of Section 310(b) of the Trust Indenture Act, the Guarantee
Trustee and Guarantor shall in all respects comply with the provisions of
Section 310(b) of the Trust Indenture Act.
Section 4.2. Appointment, Removal and Resignation of the Guarantee Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a Successor Guarantee
Trustee has been appointed and has accepted such appointment by written
instrument executed by such Successor Guarantee Trustee and delivered to the
Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation shall not
take effect until a Successor Guarantee Trustee has been appointed and has
accepted such appointment by instrument in writing executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and accepted
appointment as provided in this Section 4.2 within 60 days after delivery to the
Guarantor of an instrument of resignation, the resigning Guarantee Trustee may
petition, at the expense of the Guarantor, any court of competent jurisdiction
for appointment of a Successor Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE V. GUARANTEE
Section 5.1. Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by or on behalf of the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders. The Guarantor shall notify the
Guarantee Trustee of any such payment.
Section 5.2. Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of the Guarantee Agreement
and of any liability to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the Guarantee Trustee,
Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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Section 5.3. Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under this
Guarantee Agreement shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or any portion
of the Distributions (other than an extension of time for payment of
Distributions that results from the extension of any interest payment period on
the Debentures as provided in the Indenture), Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Preferred Securities;
(c) any failure, omission, delay or lack of diligence on the part of the
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Issuer or any of the assets of the
Issuer;
(e) any invalidity of, or defect or deficiency in, the Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or hereby
incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a legal
or equitable discharge or defense of a guarantor, it being the intent of this
Section 5.3 that the obligations of the Guarantor hereunder shall be absolute
and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to, or obtain the
consent of, the Guarantor with respect to the happening of any of the foregoing.
Section 5.4. Rights of Holders.
The Guarantor expressly acknowledges that: (i) this Guarantee Agreement will
be deposited with the Guarantee Trustee to be held for the benefit of the
Holders; (ii) the Guarantee Trustee has the right to enforce this Guarantee
Agreement on behalf of the Holders; (iii) the Holders of a majority in
Liquidation Amount of the 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 this Guarantee Agreement or exercising any
trust or power conferred upon the Guarantee Trustee under this Guarantee
Agreement; and (iv) any Holder may institute a legal proceeding directly against
the Guarantor to enforce its rights under this Guarantee Agreement, without
first instituting a legal proceeding against the Issuer or any other Person.
Section 5.5. Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not of collection.
This Guarantee Agreement will not be discharged except by payment of the
Guarantee Payments in full (without duplication of amounts theretofore paid by
the Issuer) or upon distribution of Debentures to Holders as provided in the
Trust Agreement.
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Section 5.6. Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid to the Holders by the
Guarantor under this Guarantee Agreement and shall have the right to waive
payment by the Issuer pursuant to Section 5.1; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
Section 5.7. Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent of
the obligations of the Issuer with respect to the Preferred Securities and that
the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee Agreement
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI. COVENANTS AND SUBORDINATION
Section 6.1. Subordination.
The obligations of the Guarantor under this Guarantee Agreement will
constitute unsecured obligations of the Guarantor and will rank subordinate and
junior in right of payment to all Senior Indebtedness (as defined in the
Indenture) to the extent and in the manner set forth in the Indenture. The
obligations of the Guarantor under this Guarantee Agreement do not constitute
Senior Indebtedness, Senior Debt or Senior Subordinated Debt (each as defined in
the Indenture).
Section 6.2. Pari Passu Guarantees.
The obligations of the Guarantor under this Guarantee Agreement shall rank
pari passu with the obligations of the Guarantor under any similar Guarantee
Agreements issued by the Guarantor on behalf of the holders of preferred or
capital securities issued by any BankAmerica Trust (as defined in the
Indenture).
ARTICLE VII. TERMINATION
Section 7.1. Termination.
This Guarantee Agreement shall terminate and be of no further force and effect
upon (i) full payment of the Redemption Price of all Preferred Securities, (ii)
the distribution of Debentures to the Holders in exchange for all of the
Preferred Securities or (iii) full payment of the amounts payable in accordance
with the Trust Agreement upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must repay any sums
paid with respect to Preferred Securities or this Guarantee Agreement.
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ARTICLE VIII. MISCELLANEOUS
Section 8.1. Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement shall bind
the successors, assigns, receivers, trustees and representatives of the
Guarantor and shall inure to the benefit of the Holders of the Preferred
Securities then outstanding. Except in connection with a consolidation, merger
or sale involving the Guarantor that is permitted under Article VIII of the
Indenture and pursuant to which the successor or assignee agrees in writing to
perform the Guarantor's obligations hereunder, the Guarantor shall not assign
its obligations hereunder.
Section 8.2. Amendments.
Except with respect to any changes which do not adversely affect the rights of
the Holders in any material respect (in which case no consent of the Holders
will be required), this Guarantee Agreement may only be amended with the prior
approval of the Holders of not less than a Majority in Liquidation Amount of all
the outstanding Preferred Securities. The provisions of Article VI of the Trust
Agreement concerning meetings of the Holders shall apply to the giving of such
approval.
Section 8.3. Notices.
Any notice, request or other communication required or permitted to be given
hereunder shall be in writing, duly signed by the party giving such notice, and
delivered, telecopied (confirmed by delivery of the original) or mailed by
first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such other
address, facsimile number or to the attention of such other Person as the
Guarantor may give notice to the Holders:
BankAmerica Corporation
555 California Street
San Francisco, California 94104
Facsimile No.: 415-622-3611
Attention: Treasurer
(b) if given to the Guarantee Trustee or the Issuer, in care of the Guarantee
Trustee, at the Issuer's (and the Guarantee Trustee's) address set forth below
or such other address as the Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
BankAmerica Capital/*/
c/o BankAmerica Corporation
555 California Street
San Francisco, California 94104
Facsimile No.: 415-622-3611
Attention: Treasurer
- ---------------------------------
/*/ Insert I, II, III, IV, V, VI, VII or VIII as applicable.
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with a copy to:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Facsimile No.: 212-250-6961
Attention: Corporate Trust and Agency Group -
Corporate Market Services
(c) if given to any Holder, at the address set forth on the books and records
of the Issuer.
All notices hereunder shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid, except that if a notice or other document is refused delivery
or cannot be delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been delivered on
the date of such refusal or inability to deliver.
Section 8.4. Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and is not
separately transferable from the Preferred Securities.
Section 8.5. Interpretation.
In this Guarantee Agreement, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not defined in the
preamble hereto have the respective meanings assigned to them in Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same meaning
throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee Agreement"
are to this Guarantee Agreement as modified, supplemented or amended from time
to time;
(d) all references in this Guarantee Agreement to Articles and Sections are to
Articles and Sections of this Guarantee Agreement unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when used
in this Guarantee Agreement unless otherwise defined in this Guarantee Agreement
or unless the context otherwise requires;
(f) a reference to the singular includes the plural and vice versa; and
(g) the masculine, feminine or neuter genders used herein shall include the
masculine, feminine and neuter genders.
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Section 8.6. Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THE
CONFLICT OF LAW PRINCIPLES THEREOF EXCEPT THAT THE RIGHTS, DUTIES AND
OBLIGATIONS OF THE TRUSTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
13
<PAGE>
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
BankAmerica Corporation
By:
---------------------------------------
Name:
Title:
Bankers Trust Company
as Guarantee Trustee
By:
---------------------------------------
Name:
Title:
14
<PAGE>
Exhibit 5(a)
[Letterhead of Orrick, Herrington & Sutcliffe LLP]
December 4, 1996
BankAmerica Corporation
555 California Street
San Francisco, CA 94104
Ladies and Gentlemen:
This opinion is delivered in connection with Amendment No. 1 to the
Registration Statement on Form S-3 (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), by BankAmerica Corporation,
a Delaware corporation ("BankAmerica Corporation"), and 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 business trust formed under the Business Trust
Act of the State of Delaware (collectively, the "Issuer Trusts" and together
with BankAmerica Corporation, the "Registrants"), with the Securities and
Exchange Commission (the "Commission") in connection with the registration by
the Registrants under the Act, of an aggregate of $1,500,000,000 of (i) Junior
Subordinated Deferrable Interest Debentures (the "Junior Subordinated
Debentures") and other Debt Securities of BankAmerica Corporation, (ii)
Preferred Securities of each of the Issuer Trusts (the "Preferred Securities")
and (iii) Guarantees of BankAmerica Corporation of obligations of the Issuer
Trusts under the Preferred Securities (the "Guarantees").
We have examined (i) the Registration Statement, (ii) the form of Junior
Subordinated Indenture (the "Junior Subordinated Indenture") between BankAmerica
Corporation and Bankers Trust Company, as Debenture Trustee (the "Debenture
Trustee"), as filed as an exhibit to the Registration Statement, pursuant to
which the Junior Subordinated Debentures are to be issued, (iii) the form of
Guarantee Agreement (a "Guarantee Agreement") to be executed by BankAmerica
Corporation and Bankers Trust Company, as Guarantee Trustee (the "Guarantee
Trustee"), as filed as an exhibit to the Registration Statement, (iv) the form
of Underwriting Agreement (an "Underwriting Agreement") to be executed by
BankAmerica Corporation and the underwriters to be named therein, as filed as an
exhibit to the Registration Statement and (v) the form of Amended and Restated
Trust Agreement (a "Trust Agreement") to be executed by BankAmerica
Corporation and Bankers Trust Company, as Property Trustee, as filed as an
exhibit to the Registration Statement. In addition, we have examined such other
instruments, documents and records as we deemed relevant and necessary as a
basis for our opinion hereinafter expressed. In such examination, we have
assumed the following: (a) the authenticity of original documents and the
genuineness of all signatures; (b)
<PAGE>
BankAmerica Corporation
December 4, 1996
Page 2
the conformity to the originals of all documents submitted to us as copies; and
(c) the truth, accuracy and completeness of the information, representations and
warranties contained in the records, documents, instruments and certificates we
have reviewed. We have also assumed that the Registration Statement, and any
applicable amendments thereto (including post-effective amendments), will have
become effective under the Act at the time of issuance, offering and sale of any
such Junior Subordinated Debentures, Preferred Securities or Guarantees.
Based upon the foregoing, and subject to the qualifications and limitations
stated herein, we are of the opinion that:
1. With respect to the Junior Subordinated Debentures to be issued under
the Junior Subordinated Indenture, when such Junior Subordinated Indenture has
been duly authorized by appropriate corporate action and validly executed and
delivered by BankAmerica Corporation and the Debenture Trustee and such Junior
Subordinated Debentures have been duly authorized by appropriate corporate
action and duly executed, authenticated, issued and delivered in accordance with
the provisions of the Junior Subordinated Indenture and paid for and sold as
contemplated by the applicable Underwriting Agreement and the applicable Trust
Agreement, such Junior Subordinated Debentures will be legally issued, fully
paid, binding obligations of BankAmerica Corporation, and the holders of such
Junior Subordinated Debentures will be entitled to the benefits of the Junior
Subordinated Indenture.
2. With respect to the Guarantee evidenced by each Guarantee Agreement,
when such Guarantee Agreement has been duly authorized by appropriate corporate
action and validly executed and delivered by BankAmerica Corporation and the
Guarantee Trustee, and the applicable Junior Subordinated Debentures and the
Common and Preferred Securities of the applicable Issuer Trust have been issued,
paid for and sold as contemplated by the applicable Underwriting Agreement and
the applicable Trust Agreement, such Guarantee will constitute a valid and
legally binding obligation of BankAmerica Corporation, enforceable against
BankAmerica Corporation in accordance with its terms.
Our opinions set forth in paragraphs 1 and 2 above are qualified as to (i)
limitations imposed by applicable bankruptcy, insolvency, reorganization,
arrangement, fraudulent conveyance, moratorium, or other laws relating to or
affecting the rights of creditors generally and (ii) general principles of
equity, including concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance or injunctive
<PAGE>
BankAmerica Corporation
December 4, 1996
Page 3
relief, regardless of whether such enforceability is considered in a proceeding
in equity or at law.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name wherever it appears in the
Registration Statement and the prospectus contained therein. In giving such
consent, we do not consider that we are "experts," within the meaning of the
term as used in the Act or the rules and regulations of the Commission issued
thereunder, with respect to any part of the Registration Statement, including
this opinion as an exhibit or otherwise.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
Exhibit 5(b)
[BankAmerica Corporation Letterhead]
BankAmerica Corporation
Box 37000
San Francisco, CA 94137
December 4, 1996
James N. Roethe
Executive Vice President
and General Counsel
Legal Department North #3017
(415) 622-2845
Fax: (415) 953-0944
Board of Directors
BankAmerica Corporation
Bank of America Center
San Francisco, CA 94104
Ladies and Gentlemen:
I am Executive Vice President and General Counsel of BankAmerica
Corporation (the "Corporation"). At your request, I have examined or caused to
be examined the registration statement on Form S-3 (Registration No. 333-15559),
as amended by Pre-Effective Amendment No. 1, being filed with the Securities and
Exchange Commission (as so amended, the "Registration Statement") in connection
with the registration under the Securities Act of 1933 of debt securities, which
may be either senior (the "Senior Securities") or subordinated (the
"Subordinated Securities" and, together with the Senior Securities, the "Debt
Securities").
This opinion does not address the Junior Subordinated Deferrable
Interest Debentures, Preferred Securities and Guarantees which are also covered
by the Registration Statement and are addressed in opinions issued by Orrick,
Herrington & Sutcliffe LLP and Richards, Layton & Finger.
The Debt Securities will be sold or delivered from time to time as set
forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the "Prospectus") and supplements to the Prospectus (the
"Prospectus Supplements"). The Senior Securities will be issued under an
Indenture dated as of November 1, 1991 as amended by a First Supplemental
Indenture (the "Supplemental Indenture") dated as of August 1, 1994 (the "Senior
Indenture"), each between the Corporation and First Trust of California,
National Association, as Successor Trustee. The Subordinated Securities will be
issued under an Indenture
<PAGE>
Board of Directors
BankAmerica Corporation
December 4, 1996
Page 2
dated as of November 1, 1991, as amended by a First Supplemental Indenture dated
as of September 8, 1992 (the "Subordinated Indenture"), each between the
Corporation and Chemical Trust Company of California. The forms of the Senior
Indenture and the Subordinated Indenture are exhibits to the Registration
Statement.
The opinion expressed below, relating to whether the Debt Securities
will be legal, valid and binding obligations of the Corporation, is qualified as
to:
(a) limitations imposed by applicable bankruptcy, insolvency,
reorganization, liquidation, receivership, conservatorship, readjustment of
debt, arrangement, moratorium or other laws now or hereafter relating to or
affecting the rights of creditors generally;
(b) limitations imposed by general principles of equity, including
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether considered in a
proceeding in equity or at law; and
(c) the effect of applicable court decisions holding that provisions of
agreements are unenforceable where the breach thereof imposes restrictions or
burdens on a debtor and it cannot be demonstrated that the enforcement thereof
is necessary for the protection of the creditor; and the effect of applicable
statutes or court decisions limiting in certain circumstances enforcement of
provisions imposing penalties, forfeitures, late payment charges or increases in
interest rates upon delinquency in payment or default; and the enforceability of
any choice of forum which may be included in the Debt Securities, which may be
subject to limitation by certain procedural rules of and statutes applicable to
the Federal courts.
I have examined, or caused to be examined, instruments, documents and
records which I have deemed relevant and necessary for the basis of my opinion
hereinafter expressed. Based on such examination, I am of the opinion that, when
appropriate corporate action has been taken to authorize the issuance of any
Debt Securities, officers' certificates have been duly executed and delivered in
accordance with the applicable Indenture, and such Debt Securities have been
duly completed, executed, authenticated, sold and delivered in the applicable
form filed as an exhibit to the Registration
<PAGE>
Board of Directors
BankAmerica Corporation
December 4, 1996
Page 3
Statement, in accordance with the applicable Indenture and in the manner
described in the Registration Statement, any amendment thereto, the Prospectus
and any Prospectus Supplement relating thereto, such Debt Securities will be
legal, valid and binding obligations of the Corporation, entitled to the
benefits of the applicable Indenture.
I consent to the use of this opinion as an exhibit to the Registration
Statement and of my name under the caption "Legal Matters" in the Registration
Statement and in the Prospectus.
Sincerely yours,
/s/ James N. Roethe
James N. Roethe
Executive Vice President and
General Counsel
<PAGE>
Exhibit 5(c)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital I
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital I
---------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital I, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996 ;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital I
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus")
and preliminary prospectus supplement (the "Prospectus Supplement"), relating to
the __% Cumulative Quarterly Income Preferred Securities, Series 1, of the Trust
representing preferred undivided beneficial interests in the assets of the Trust
(each, a "Preferred Security" and collectively, the "Preferred Securities"), as
proposed to be filed by the Company, the Trust and others as set forth therein
with the Securities and Exchange Commission on or about December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined
<PAGE>
BankAmerica Capital I
December 4, 1996
Page 3
by us under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Preferred Security is to be issued by
the Trust (collectively, the "Preferred Security Holders") of a Preferred
Securities Certificate for such Preferred Security and the payment for the
Preferred Security acquired by it, in accordance with the Trust Agreement and
the Registration Statement, and (vii) that the Preferred Securities are issued
and sold to the Preferred Security Holders in accordance with the Trust
Agreement and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus and the Prospectus Supplement. In giving the
foregoing consents, we do not thereby admit that we
<PAGE>
BankAmerica Capital I
December 4, 1996
Page 4
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(d)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital II
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital II
----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital II, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital II
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital II
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents examined
by us, (iv) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital II
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(e)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital III
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital III
-----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital III, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital III
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital III
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents examined
by us, (iv) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital III
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(f)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital IV
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital IV
----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital IV, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital IV
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the
"Trust Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital IV
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital IV
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(g)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital V
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital V
---------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital V, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital V
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital V
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents examined
by us, (iv) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital V
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(h)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital VI
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital VI
----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica
Corporation, a Delaware corporation (the "Company"), and BankAmerica Capital VI,
a Delaware business trust (the "Trust"), in connection with the matters set
forth herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital VI
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the
"Registration Statement") on Form S-3, including a preliminary prospectus (the
"Prospectus"), relating to the __% Cumulative Quarterly Income Preferred
Securities of the Trust representing preferred undivided beneficial interests in
the assets of the Trust (each, a "Preferred Security" and collectively, the
"Preferred Securities"), as proposed to be filed by the Company, the Trust and
others as set forth therein with the Securities and Exchange Commission on or
about December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents
other than the documents listed in paragraphs (a) through (e) above. In
particular, we have not reviewed any document (other than the documents listed
in paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent with
the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital VI
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents examined
by us, (iv) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to
the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of Securities"
in the Prospectus. In giving the foregoing consents, we do not thereby admit
that we come within the category of Persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital VI
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(i)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital VII
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital VII
-----------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital VII, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital VII
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
December 4, 1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital VII
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) the due authorization, execution and
delivery by all parties thereto of all documents examined by us, (vi) the
receipt by each Person to whom a Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") of a Preferred Securities
Certificate for such Preferred Security and the payment for the Preferred
Security acquired by it, in accordance with the Trust Agreement and the
Registration Statement, and (vii) that the Preferred Securities are issued and
sold to the Preferred Security Holders in accordance with the Trust Agreement
and the Registration Statement. We have not participated in the preparation of
the Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital VII
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 5(j)
[Letterhead of Richards, Layton & Finger]
December 4, 1996
BankAmerica Capital VIII
c/o BankAmerica Corporation
555 California Street
San Francisco, CA 91404
Re: BankAmerica Capital VIII
------------------------
Ladies and Gentlemen:
We have acted as special Delaware counsel for BankAmerica Corporation,
a Delaware corporation (the "Company"), and BankAmerica Capital VIII, a Delaware
business trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of November 4,
1996 (the "Certificate"), as filed in the office of the Secretary of State of
the State of Delaware (the "Secretary of State") on November 4, 1996;
(b) The Trust Agreement of the Trust, dated as of November 4, 1996,
among the Company, as Depositor, and the trustee of the Trust named therein;
<PAGE>
BankAmerica Capital VIII
December 4, 1996
Page 2
(c) Amendment No. 1 to the Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus (the "Prospectus"),
relating to the __% Cumulative Quarterly Income Preferred Securities of the
Trust representing preferred undivided beneficial interests in the assets of the
Trust (each, a "Preferred Security" and collectively, the "Preferred
Securities"), as proposed to be filed by the Company, the Trust and others as
set forth therein with the Securities and Exchange Commission on or about
December 4, 1996;
(d) A form of Amended and Restated Trust Agreement of the Trust, to be
entered into among the Company, as Depositor, the trustees of the Trust named
therein, and the holders, from time to time, of undivided beneficial interests
in the assets of the Trust (including Exhibits A, C and E thereto) (the "Trust
Agreement"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated December 4,
1996, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) above) that is referred to in or incorporated by reference into
the documents reviewed by us. We have assumed that there exists no provision in
any document that we have not reviewed that is inconsistent with the opinions
stated herein. We have conducted no independent factual investigation of our
own but rather have relied solely upon the foregoing documents, the statements
and information set forth therein and the additional matters recited or assumed
herein, all of which we have assumed to be true, complete and accurate in all
material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Trust
Agreement and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, the due
creation or due organization or due formation, as the case may be, and valid
existence in good standing of each party to the documents examined by us under
the laws of the jurisdiction governing its creation, organization or formation,
(iii)
<PAGE>
BankAmerica Capital VIII
December 4, 1996
Page 3
the legal capacity of natural persons who are parties to the documents examined
by us, (iv) that each of the parties to the documents examined by us has the
power and authority to execute and deliver, and to perform its obligations
under, such documents, (v) the due authorization, execution and delivery by all
parties thereto of all documents examined by us, (vi) the receipt by each Person
to whom a Preferred Security is to be issued by the Trust (collectively, the
"Preferred Security Holders") of a Preferred Securities Certificate for such
Preferred Security and the payment for the Preferred Security acquired by it, in
accordance with the Trust Agreement and the Registration Statement, and (vii)
that the Preferred Securities are issued and sold to the Preferred Security
Holders in accordance with the Trust Agreement and the Registration Statement.
We have not participated in the preparation of the Registration Statement and
assume no responsibility for its contents.
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws of the State of Delaware), and we have not
considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our opinions
are rendered only with respect to Delaware laws and rules, regulations and
orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such questions
of law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated to make payments as set forth in the Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition,
we hereby consent to the use of our name under the heading "Validity of
Securities" in the Prospectus. In giving the foregoing consents, we do not
thereby admit that we come within the category of Persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
<PAGE>
BankAmerica Capital VIII
December 4, 1996
Page 4
rules and regulations of the Securities and Exchange Commission thereunder.
Except as stated above, without our prior written consent, this opinion may not
be furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
RICHARDS, LAYTON & FINGER
BJK/dgw
<PAGE>
Exhibit 8
[Letterhead Of Orrick, Herrington & Sutcliffe LLP]
December 4, 1996
BankAmerica Corporation
555 California Street
San Francisco, CA 94104
Ladies and Gentlemen:
This opinion is delivered in connection with Amendment No. 1 to the
Registration Statement on Form S-3 (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), by BankAmerica Corporation,
a Delaware corporation ("BankAmerica Corporation"), and 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 business trust formed under the Business Trust
Act of the State of Delaware (collectively, the "Issuer Trusts" and together
with BankAmerica Corporation, the "Registrants"), with the Securities and
Exchange Commission (the "Commission") in connection with the registration by
the Registrants under the Act, of an aggregate of $1,500,000,000 of (i) Junior
Subordinated Deferrable Interest Debentures (the "Junior Subordinated
Debentures") and other Debt Securities of BankAmerica Corporation, (ii)
Preferred Securities of each of the Issuer Trusts (the "Preferred Securities")
and (iii) Guarantees of BankAmerica Corporation of obligations of the Issuer
Trusts under the Preferred Securities. In connection therewith, you have
requested our opinion with respect to (i) the status of the Issuer Trusts for
United States federal income tax purposes and (ii) the accuracy of the
discussion included in the two prospectus supplements filed with the
Registration Statement (collectively, the "Prospectus Supplements") under the
heading "Certain Federal Income Tax Consequences."
All capitalized terms used herein without definition shall have the same
meaning as in the Registration Statement.
<PAGE>
BankAmerica Corporation
December 4, 1996
Page 2
FACTS AND ASSUMPTIONS RELIED UPON
---------------------------------
In rendering the opinions expressed herein, we have examined such
documents as we have deemed appropriate, including (but not limited to) the
Registration Statement and all exhibits thereto. In our examination of
documents, we have assumed, with your consent, that all documents submitted to
us are authentic originals, or if submitted as photocopies, that they faithfully
reproduce the originals thereof, that all such documents have been or will be
duly executed to the extent required, that all representations and statements
set forth in such documents are true, correct and complete, and that all
obligations imposed by any such documents on the parties thereto are
enforceable, and have been or will be performed or satisfied, in accordance with
their terms. In addition, we have relied, with your consent, upon the opinion
of Richards, Layton & Fingers with respect to the validity of the Issuer Trusts
and the Preferred Securities.
OPINIONS
--------
Based upon and subject to the foregoing, we are pleased to advise
that:
(1) In our opinion, each 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, and as a result, each beneficial owner of Preferred
Securities will be treated as owning an undivided beneficial interest in the
Junior Subordinated Debentures.
(2) The statements of law or legal conclusion contained in that
portion of the Prospectus Supplements under the caption "Certain Federal Income
Tax Consequences" accurately set forth our opinions.
* * *
The opinions expressed herein are based upon the Code, Treasury
Regulations promulgated thereunder, current administrative positions of the
Internal Revenue Service, and existing judicial decisions, any of which could be
changed at any time, possibly on a retroactive basis. Any such changes could
adversely affect the opinions rendered herein and the tax consequences to the
Issuer Trusts and to the holders of the Preferred Securities. Furthermore, an
opinion of counsel is not binding on the Internal Revenue Service or the courts,
and the
<PAGE>
BankAmerica Corporation
December 4, 1996
Page 3
authorities on which our opinions are based are subject to various
interpretations. In addition, our opinions cannot be relied upon if any of the
facts contained in the documents that we have examined, including the opinion of
Richards, Layton & Finger or if any of the assumptions that we have made, is, or
later becomes, inaccurate.
Finally, our opinion is limited to the matters of federal income tax
law specifically addressed thereby, and we have not been asked to address, nor
have we addressed, any other tax consequences relating to the formation or
operation of the Issuer Trusts or of an investment in the Preferred Securities.
We hereby consent to the reference to our name and our opinion under
the heading "Certain Federal Income Tax Consequences" in each of the Prospectus
Supplements and the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
ORRICK, HERRINGTON & SUTCLIFFE LLP
<PAGE>
Exhibit 12
BANKAMERICA CORPORATION
Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Nine Months Ended
September 30 Year Ended December 31
---------------- -------------------------------------------
(dollar amounts in millions) 1996 1995 1995 1994 1993 1992 1991
------ ------- -------- ------- ------- ------- ------
<S> <C> <C> <C> <C> <C> <C> <C>
Excluding Interest On Deposits
Fixed charges:
Interest expense (other
than interest on deposits) $2,011 $1,828 $ 2,455 $1,505 $1,215 $1,126 $ 743
Interest factor in rent expense 95 88 120 109 112 95 82
Other - - - 3 2 1 1
------ ------ ------- ------ ------ ------ ------
$2,106 $1,916 $ 2,575 $1,617 $1,329 $1,222 $ 826
====== ====== ======= ====== ====== ====== ======
Earnings:
Income from operations $2,126 $1,960 $ 2,664 $2,176 $1,954 $1,492 $1,124
Applicable income taxes 1,488 1,408 1,903 1,541 1,474 1,190 749
Fixed charges 2,106 1,916 2,575 1,617 1,329 1,222 826
Other - (14) (12) (55) (39) (14) (15)
------ ------ ------- ------ ------ ------ ------
$5,720 $5,270 $ 7,130 $5,279 $4,718 $3,890 $2,684
====== ====== ======= ====== ====== ====== ======
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
Fixed charges:
Interest expense $5,964 $5,444 $ 7,378 $4,842 $4,186 $4,895 $5,388
Interest factor in rent expense 95 88 120 109 112 95 82
Other - - - 3 2 1 1
------ ------ ------- ------ ------ ------ ------
$6,059 $5,532 $ 7,498 $4,954 $4,300 $4,991 $5,471
====== ====== ======= ====== ====== ====== ======
Earnings:
Income from operations $2,126 $1,960 $ 2,664 $2,176 $1,954 $1,492 $1,124
Applicable income taxes 1,488 1,408 1,903 1,541 1,474 1,190 749
Fixed charges 6,059 5,532 7,498 4,954 4,300 4,991 5,471
Other - (14) (12) (55) (39) (14) (15)
------ ------ ------- ------ ------ ------ ------
$9,673 $8,886 $12,053 $8,616 $7,689 $7,659 $7,329
====== ====== ======= ====== ====== ====== ======
Ratio of earnings to fixed charges,
including interest on deposits 1.60 1.61 1.61 1.74 1.79 1.53 1.34
</TABLE>
<PAGE>
Exhibit 23(a)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in Amendment
No. 1 to the Registration Statement (Form S-3, Nos. 333-15559 and 333-15559-01
through -08) 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 Issuers
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.
Ernst & Young LLP
San Francisco, California
December 4, 1996
<PAGE>
Exhibit 25(a)
- -------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
BANKAMERICA CORPORATION BANKAMERICA CAPITAL I
(Exact name of obligor as BANKAMERICA CAPITAL II
specified in its charter) BANKAMERICA CAPITAL III
BANKAMERICA CAPITAL IV
BANKAMERICA CAPITAL V
BANKAMERICA CAPITAL VI
BANKAMERICA CAPITAL VII
BANKAMERICA CAPITAL VIII
DELAWARE 94-1681731 DELAWARE Each to be applied for
(State or other (I.R.S. employer (State or other (I.R.S. employer
jurisdiction of Identification jurisdiction of Identification no.)
incorporation or no.) incorporation or
organization) organization)
555 California Street c/o BankAmerica Corporation
San Francisco, California 94104 555 California Street
(Address, including zip code San Francisco, California 94104
of principal executive offices) (Address, including zip code of
principal executive offices)
DEBT SECURITIES, GUARANTEES AND/OR PREFERRED SECURITIES
(Title of the indenture securities)
<PAGE>
Item 1.General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2.Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 - Incorporated
herein by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171, and Certificate
of Amendment of the Organization Certificate of
Bankers Trust Company dated March 20, 1996, copy
attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as amended
on September 17, 1996 - Incorporated herein by
reference to Exhibit 4 filed with Form T-1 Statement,
Registration No. 333-15263.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of condition of Bankers
Trust Company dated as of September 30, 1996.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 3rd day
of December, 1996.
BANKERS TRUST COMPANY
By: /s/ Jenna Kaufman
----------------------
Jenna Kaufman
Vice President
-4-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT:00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: / 0 / 0 / 6 / 2 / 3
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks September 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
-----------------
C400
----------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
ASSETS / / / / / / / / / / / /
1. Cash and balances due from depository institutions (from Schedule RC-A): / / / / / / / / / / / /
a. Noninterest-bearing balances and currency and coin(1).................... 0081 809,000 1.a.
b. Interest-bearing balances(2)............................................. 0071 4,453,000 1.b.
2. Securities: / / / / / / / / / / / /
a. Held-to-maturity securities (from Schedule RC-B, column A)............... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)............. 1773 4,133,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs: / / / / / / / / / / / /
a. Federal funds sold....................................................... 0276 5,933,000 3.a.
b. Securities purchased under agreements to resell.......................... 0277 413,000 3.b.
4. Loans and lease financing receivables: / / / / / / / / / / / /
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCFD 2122 27,239,000 / / / / / / / / / / / / 4.a.
b. LESS: Allowance for loan and lease losses.............. RCFD 3123 917,000 / / / / / / / / / / / / 4.b.
c. LESS: Allocated transfer risk reserve.................. RCFD 3128 0 / / / / / / / / / / / / 4.c.
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)...................... 2125 26,322,000 4.d.
5. Assets held in trading accounts.............................................. 3545 36,669,000 5.
6. Premises and fixed assets (including capitalized leases)..................... 2145 870,000 6.
7. Other real estate owned (from Schedule RC-M)................................. 2150 215,000 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M) 2130 212,000 8.
9. Customers' liability to this bank on acceptances outstanding................. 2155 577,000 9.
10. Intangible assets (from Schedule RC-M)....................................... 2143 18,000 10.
11. Other assets (from Schedule RC-F)............................................ 2160 8,808,000 11.
12. Total assets (sum of items 1 through 11)..................................... 2170 89,432,000 12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 9/30/96 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
<CAPTION>
Schedule RC--Continued ------------------------------------
Dollar Amounts in Thousands / / / / / / / / Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
LIABILITIES / / / / / / / / / / / / / /
13. Deposits: / / / / / / / / / / / / / /
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 9,391,000 13.a.
(1) Noninterest-bearing(1) ............................RCON 6631 2,734,000 / / / / / / / / / 13.a.(1)
(2) Interest-bearing ...................................RCON 6636 6,657,000 / / / / / / / / / 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs / / / / / / / / /
(from Schedule RC-E part II) RCFN 2200 23,385,000 13.b.
(1) Noninterest-bearing .................................RCFN 6631 654,000 / / / / / / / / / 13.b.(1)
(2) Interest-bearing.....................................RCFN 6636 22,731,000 / / / / / / / / / 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase in / / / / / / / / /
domestic offices of the bank and of its Edge and Agreement subsidiaries, and in / / / / / / / / /
IBFs: / / / / / / / / /
a. Federal funds purchased....................................................... RCFD 0278 3,090,000 14.a.
b. Securities sold under agreements to repurchase................................ RCFD 0279 99,000 14.b.
15. a. Demand notes issued to the U.S. Treasury...................................... RCON 2840 0 15.a.
b. Trading liabilities........................................................... RCFD 3548 18,326,000 15.b.
16. Other borrowed money: / / / / / / / / / / / /
a. With original maturity of one year or less.................................... RCFD 2332 17,476,000 16.a.
b. With original maturity of more than one year.................................. RCFD 2333 2,771,000 16.b.
17. Mortgage indebtedness and obligations under capitalized leases.................... RCFD 2910 31,000 17.
18. Bank's liability on acceptances executed and outstanding.......................... RCFD 2920 577,000 18.
19. Subordinated notes and debentures................................................. RCFD 3200 1,228,000 19.
20. Other liabilities (from Schedule RC-G)............................................ RCFD 2930 8,398,000 20.
21. Total liabilities (sum of items 13 through 20).................................... RCFD 2948 84,772,000 21.
/ / / / / / / / / / / / /
22. Limited-life preferred stock and related surplus.................................. RCFD 3282 0 22.
EQUITY CAPITAL / / / / / / / / / / / / /
23. Perpetual preferred stock and related surplus.................................... RCFD 3838 500,000 23.
24. Common stock..................................................................... RCFD 3230 1,002,000 24.
25. Surplus (exclude all surplus related to preferred stock)......................... RCFD 3839 527,000 25.
26. a. Undivided profits and capital reserves....................................... RCFD 3632 3,017,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities....... RCFD 8434 ( 16,000) 26.b.
27. Cumulative foreign currency translation adjustments.............................. RCFD 3284 ( 370,000) 27.
28. Total equity capital (sum of items 23 through 27)................................ RCFD 3210 4,660,000 28.
29. Total liabilities, limited-life preferred stock, and equity capital (sum of items / / / / / / / / / / / / /
21, 22,and 28)................................................................... RCFD 3300 89,432,000 29.
<CAPTION>
<S> <C> <C> <C> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work performed for the bank by ---------------------------
independent external auditors as of any date during 1995......................... RCFD 6724 N/A M.1
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements
conducted in accordance with generally accepted auditing by external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards 8 = No external audit work
by a certified public accounting firm (may be required
by state chartering authority)
</TABLE>
- ---------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
<PAGE>
State of New York,
Banking Department
I, PETER M. PHILBIN, Deputy Superintendent of Bank of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated March 20, 1996, providing for an increase in
authorized capital stock from $1,351,666,670 consisting of 85,166,667 shares
with a par value of $10 each designated as Common Stock and 500 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$1,501,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 500 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New
York,
this 21st day of March in the Year of our Lord one thousand
nine hundred and ninety-six.
Peter M. Philbin
-------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Three Hundred Fifty One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,351,666,670), divided into
Eighty-Five Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (85,166,667) shares with a par value of $10 each designated
as Common Stock and 500 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Five Hundred One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,501,666,670), divided into One
Hundred Million, One Hundred Sixty Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 500 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE>
6. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 20th
day of March,1996.
/s/James T. Byrne, Jr.
--------------------------------
James T. Byrne, Jr.
Managing Director
/s/Lea Lahtinen
-------------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
/s/Lea Lahtinen
--------------------
Lea Lahtinen
Sworn to before me this 20th day
of March, 1996.
/s/Sandra L. West
- --------------------------
Notary Public
SANDRA L. WEST Counterpart filed in the
Notary Public State of New York Office of the Superintendent of
No. 31-4942101 Banks, State of New York,
Qualified in New York County This 21st day of March, 1996
Commission Expires September 19, 1996
<PAGE>
Exhibit 25(b)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM T-1
Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
--------------------
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
94-3160100
(I.R.S. employer Identification No.)
One California Street
San Francisco, California 94111
(Address of principal executive offices and zip code)
--------------------
BANKAMERICA CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 94-1681731
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification No.)
BANK OF AMERICA CENTER
555 California Street
San Francisco, CA 94104
(Address of principal executive offices) (Zip code)
--------------------
SENIOR DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
GENERAL
1. GENERAL INFORMATION Furnish the following information as to the trustee.
-------------------
(a) Name and address of each examining or supervising authority to which it
is subject.
Comptroller of the Currency
Washington D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
------------------------------------------
underwriter for the obligor is an affiliate of the trustee, describe each
such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's knowledge
----------------------------------------------------------------------------
the obligor is not in default under any Indenture for which the Trustee acts
----------------------------------------------------------------------------
as Trustee.
----------
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
----------------
of eligibility and qualification.
1. Copy of Articles of Association
2. Copy of Certificate of Authority to Commence Business
3. Copy of Trust Permit authorizing the exercise of corporate trust powers
4. Copy of existing By-Laws
5. Copy of each Indenture referred to in item 4. - N/A
6. The consents of the trustee required by Section 321(b) of the Act
7. Copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority
-2-
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what persons
have been underwriters for any securities of the obligor within three years
prior to the date of filing this statement, or what persons are owners of 10% or
more of the voting securities of the obligor, or affiliates, are based upon
information furnished to the trustee by the obligor. While the trustee has no
reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
First Trust of California, National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized and attested, all in the City of San Francisco and
State of California on the 3rd day of December, 1996.
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
/s/ Jennifer Holder
----------------------------------------
Jennifer Holder, Vice President
/s/ Josephine Libunao
- ----------------------------------
Josephine Libunao, Assistant Vice President
<PAGE>
Exhibit 1
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
-----------------------
For the purpose of organizing an association to perform any lawful
activities of national banks, the undersigned do enter into the following
Articles of Association:
FIRST. The title of this Association shall be "First Trust of
California, National Association."
SECOND. The main office of this Association shall be in the City and
County of San Francisco, State of California. The business of this Association
will be limited to the operations of a trust department, and to support
activities incidental thereto. This Association will not expand or alter its
business beyond that stated in this Article Second without the prior approval of
the Comptroller of the Currency.
THIRD. The board of directors of this Association shall consist of not
less than five nor more than twenty-five persons, the exact number to be fixed
and determined from time to time by resolution of a majority of the full board
of directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
this Association with an aggregate par value of not less than $1,000, or common
or preferred stock of First Bank System, Inc. with an aggregate par, fair
market, or equity value of not less than $1,000, as of either (i) the date of
purchase, (ii) the date the person became a director or (iii) the date of that
person's most recent election to the board of directors, whichever is more
recent. Any combination of common or preferred stock of this Association or
First Bank System, Inc. may be used.
Any vacancy in the board of directors may be filled by action of a
majority of the remaining directors between meetings of shareholders. The board
of directors may not increase the number of directors between meetings of
shareholders to a number that (1) exceeds by more than two the number of
directors last elected by shareholders where the number was fifteen or less; and
(2) exceeds by more than four the number of directors last elected by
shareholders where the number was sixteen or more, but in no event shall the
number of directors exceed twenty-five.
Terms of directors, including directors selected to fill vacancies,
shall expire at the next regular meeting of shareholders at which directors are
elected, unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue
to serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
<PAGE>
Honorary or advisory members of the board of directors, without voting
power or power of final decision in matters concerning the business of this
Association, may be appointed by resolution of a majority of the full board of
directors, or by resolution of shareholders at any annual or special meeting.
Honorary or advisory directors shall not be counted for purposes of determining
the number of directors of this Association or the presence of a quorum in
connection with any board action, and shall not be required to own qualifying
shares.
FOURTH. There shall be an annual meeting of the shareholders to elect
directors and transact whatever other business may be brought before the
meeting. It shall be held at the main office or any other convenient place the
board of directors may designate, on the day of each year specified therefore in
the bylaws, or if that day falls on a legal holiday in the State in which this
Association is located, on the next following banking day. If no election is
held on the day fixed, or in event of a legal holiday, an election may be held
on any subsequent day within sixty days of the day fixed, to be designated by
the board of directors, or, if the directors fail to fix the day, by
shareholders representing two-thirds of the shares issued and outstanding. In
all cases at least ten-days advance notice of the meeting shall be given to the
shareholders by first class mail.
A director may resign at any time by delivering written or oral notice
to the board of directors, its chairperson, or to this Association, which
resignation shall be effective when the notice is delivered unless the notice
specifies a later effective date.
A director may be removed by shareholders at a meeting called to
remove him or her, when notice of the meeting stating that the purpose or one of
the purposes is to remove him or her is provided, if there is a failure to
fulfill one of the affirmative requirements for qualification, or for cause;
provided, however, that a director may not be removed if the number of votes
- -------- -------
sufficient to elect him or her under cumulative voting is voted against his or
her removal.
FIFTH. The authorized amount of capital stock of this Association
shall be 10,000 shares of common stock of the par value of one-hundred dollars
($100.00) each; but said capital stock may be increased or decreased from time
to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of this
Association shall have any preemptive or preferential right of subscription to
any shares of any class of stock of this Association, whether now or hereafter
authorized, or to any obligations convertible into stock of this Association,
issued, or sold, nor any right of subscription to any thereof other than such,
if any, as the board of directors, in its discretion may from time to time
determine and at such price as the board of directors may from time to time fix.
- 2 -
<PAGE>
Unless otherwise specified in these Articles of Association or required
by law, (1) all matters requiring shareholder action, including amendments to
the articles of Association must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall
be entitled to one vote per share.
Unless otherwise provided in the bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than seventy
days before the meeting.
SIXTH. The board of directors shall appoint one of its members president
of this Association and one of its members chairperson of the board. The board
of directors shall also have the power to appoint one or more vice presidents, a
secretary who shall keep minutes of the directors' and shareholders' meetings
and be responsible for authenticating the records of this Association, and such
other officers and employees as may be required to transact the business of this
Association. A duly appointed officer may appoint one or more officers or
assistant officers if authorized by the board of directors in accordance with
the bylaws.
The board of directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of this
Association.
(2) Delegate the performance of its duties, but not the responsibility
for its duties, to the officers, employees, and agents of this
Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions,
consistent with applicable law.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by this Association's management
or committees of the board.
(7) Regulate the manner in which any increase or decrease of the
capital of this Association shall be made; provided, however, that
-------- -------
nothing herein shall restrict the power of shareholders to increase
or decrease the capital of this Association in accordance with law,
and nothing shall raise
-3-
<PAGE>
or lower from two-thirds the percentage required for shareholder
approval to increase or reduce the capital.
(8) Manage and administer the business and affairs of this Association.
(9) Adopt bylaws, not inconsistent with law or these Articles of
Association, for managing the business and regulating the affairs
of this Association.
(10) Amend or repeal bylaws, except to the extent that the articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally to perform all acts that are legal for a board of
directors to perform.
SEVENTH. The board of directors shall have the power to change the
location of the main office to any other place within the limits of the City of
San Francisco without the approval of the shareholders, and shall have the power
to establish or change the location of any branch or branches of this
Association to any other location permitted under applicable law, without the
approval of the shareholders, subject to approval by the Comptroller of the
Currency.
EIGHTH. The corporate existence of this Association shall continue until
terminated according to the laws of the United States.
NINTH. The board of directors of this Association, or any three (3) or
more shareholders owning, in the aggregate, not less than twenty-five percent
(25%) of the stock of this Association, may call a special meeting of
shareholders at any time. Unless otherwise provided by the bylaws or the laws of
the United States, or waived by shareholders, a notice of the time, place, and
purpose of every annual and special meeting of the shareholders shall be given
by first-class mail, postage prepaid, mailed at least ten, and no more than
sixty, days prior to the date of the meeting to each shareholder of record at
his/her address as shown upon the books of this Association. Unless otherwise
provided by these Articles of Association or the bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. Any action required to be taken at a meeting of the shareholders
or directors or any action that may be taken at a meeting of the shareholders or
directors may be taken without a meeting if consent in writing, setting forth
the action as taken shall be signed by all the shareholders or directors
entitled to vote with respect to the matter thereof. Such action shall be
effective on the date on which the last signature is placed on the writing, or
such earlier data as is set forth therein.
-4-
<PAGE>
ELEVENTH. Meetings of the board of directors or shareholders, regular
or special, may be held by means of conference telephone or similar
communication equipment by means of which all persons participating in the
meeting can simultaneoulsy hear each other, and participation in such meeting by
such aforementioned means shall constitute presence in person at such meeting.
TWELFTH. Any person, such person's heirs, executors or administrators,
may be indemnified or reimbursed by this Association for reasonable expenses
actually incurred in connection with any action, suit or proceeding, whether
civil, criminal or administrative, to which such person or such person's heirs,
executors, or administrators shall be made a party by reason of such person
being or having been a director, advisory director, officer, employee, or agent
of this Association or of any firm, corporation, or organization that such
person served in any such capacity at the request of this Association.
Provided, however, that no such person shall be so indemnified or reimbursed in
relation to any matter in such action, suit or proceeding: (1) as to which such
person shall finally be adjudged to have been guilty of or liable for gross
negligence, willful misconduct, or criminal acts in the performance of such
person's duties to this Association; or (2) which has been made the subject of a
compromise settlement, except with the approval of a court of competent
------
jurisdiction, or the holders of record of a majority of outstanding shares of
this Association, or the board of directors acting by vote of directors not
parties to the same or substantially the same action, suit, or proceeding,
constituting a majority of the whole number of directors; or (3) against
expenses, penalties, or other payments incurred in an administrative proceeding
or action instituted by an appropriate bank regulatory agency, which proceeding
or action results in a final order assessing civil money penalties or requiring
affirmative action by such person in the form of payment to this Association.
The foregoing right of indemnification or reimbursement shall not be exclusive
of other rights to which such person, such person's heirs, executors, or
administrators, may be entitled as a matter of law.
Such expenses actually incurred by such person in connection with such
action, suit, or proceeding may be paid by this Association in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such person to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by
this Association. Prior to the advancement of any such expenses, the board of
directors shall determine in writing that all of the following conditions are
met: (1) such person has a substantial likelihood of prevailing on the merits;
(2) in the event such person does not prevail, such person will have the
financial capability to reimburse this Association; and (3) payment of such
expenses by this Association will not adversely affect the safety and soundness
of this Association. If at any time the board of directors believes, or should
reasonably believe, that any of the above conditions are not met, this
Association shall cease paying such expenses. Further, this Association
-5-
<PAGE>
shall enter into a written agreement with such person specifying the conditions
under which such person shall reimburse this Association.
This Association may, upon the affirmative vote of a majority of its
board of directors, purchase insurance for the purpose of indemnifying such
directors, advisory directors, officers, employees, or agents to the extent that
such indemnification is allowed in this Article Twelfth. Such insurance shall
not provide coverage of liability for any formal order issued by a regulatory
authority assessing civil money penalties against a director, advisory director,
officer, employee, or agent. Further, such insurance may, but need not be, for
the benefit of all such directors, advisory directors, officers employees, or
agents.
THIRTEENTH. These Articles of Association may be amended at any
regular or special meeting of the shareholders by the affirmative vote of the
holders of a majority of the stock of this Association, unless the vote of the
holders of a greater amount of stock is required by law, and in that case by the
vote of the holders of such greater amount. This Association's board of
directors may propose one or more amendments to these Articles of Association
for submission to the shareholders.
In witness whereof, we have hereunto set our hands this 5th day of June
1992, effective as of the acceptance thereof by the Comptroller of the Currency.
ORGANIZERS:
/s/ John M. Murphy /s/ John R. Danielson
- ---------------------------- ------------------------------
John M. Murphy John R. Danielson
/s/ Matthew P. Wagner /s/ Lisa M. Hammond
- ---------------------------- ------------------------------
Matthew P. Wagner Lisa M. Hammond
/s/ Melissa R. Fogelberg
----------------------------
Melissa R. Fogelberg
-6-
<PAGE>
Exhibit 2 & Exhibit 3
[LOGO APPEARS HERE]
- --------------------------------------------------------------------------------
Comptroller of the Currency
Administrator of National Banks
- --------------------------------------------------------------------------------
Midwestern District Office
2345 Grand Avenue, Suite 700
Kansas City, Missouri 64108
TRUST PERMIT
WHEREAS, First Trust of California, National Association, located in San
Francisco, California, being a national banking association, organized under the
statutes of the United States, has made application for authority to act as
fiduciary;
AND WHEREAS, applicable provisions of the statutes of the United States
authorize the grant of such authority;
NOW THEREFORE, I hereby certify that the said association is authorized to act
in all fiduciary capacities permitted by such statues.
IN TESTIMONY WHEREOF, witness my
signature and seal of the OCC
this 2nd day of July, 1992.
/s/ John R. Powers
------------------
John R. Powers
Acting Deputy Comptroller
Bank Charter No. 22508
<PAGE>
Comptroller of the Currency
[LOGO OF THE TREASURY DEPARTMENT OF THE UNITED STATES]
Washington, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of
the Currency that FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION located in SAN
FRANCISCO State of CALIFORNIA has complied with all provisions of the statutes
of the United States required to be complied with before being authorized to
commence the business of banking as a National Banking Association.
Now, therefore, I hereby certify that the above-named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness my signature and seal of
office this 2nd day of July 1992
/s/ John R. Powers
Charter No. 22508 John R. Powers
Acting Deputy Comptroller of the Currency
Midwestern District
<PAGE>
STATE OF CALIFORNIA
STATE BANKING DEPARTMENT
)
State of California )
City and County of San Francisco ) ss.
)
)
I, JAMES E. GILLERAN, Superintendent of Banks of the State of
California, do hereby certify that First Trust Company of California, N.A., has
purchased the whole of the trust business of the San Francisco Branch Office of
Bankers Trust of California, N.A., located at 50 Fremont Street, San Francisco,
California, and that the purchase agreement, as approved by me on June 30, 1992
(the time when such approval was effective being fixed at 8:00 a.m., July 6,
1992), has been filed in my office; and I do further certify that the purchase
above referred to has been approved by me in the manner required by law and that
such purchase has been fully completed and consummated.
Given under my official seal this 13th day of August, 1992.
/s/ James E. Gilleran
-------------------------
JAMES E. GILLERAN
Superintendent of Banks
[SEAL OF SUPERINTENDENT OF BANKS
APPEARS HERE]
<PAGE>
[LETTERHEAD OF STATE BANKING DEPARTMENT APPEARS HERE]
June 24, 1992
Mr. Kenneth P. Christman, Jr.
Pillsbury Madison & Sutro
Post Office Box 7880
San Francisco, CA 94120
Re: Application for Approval of Acquisition of the Trust Business
Dear Mr. Christman:
The application of First Trust of California, N.A., requesting consent
of the Superintendent of Banks pursuant to Section 2050 et seq., of the
California Financial Code, to acquire the corporate trust business of
the San Francisco Branch of Bankers Trust of California, N.A., located
at 343 Sansome Street, 7th Floor, City of San Francisco, County of San
Francisco, State of California, was approved by the Superintendent of
Banks on June 22, 1992.
Notice of this approval will be published in the June 26, 1992, issue of
the Weekly Bulletin of the Superintendent of Banks.
You will be advised by our legal department of any conditions to the
approval and of the procedural steps to be followed to effect the
acquisition.
Very truly yours,
JAMES E. GILLERAN
Superintendent of Banks
By /s/ Peter A. Van Hoecke
PETER A. VAN HOECKE/PC
Deputy Superintendent
Office of Policy
PVH:mb
cc: Federal Deposit Insurance Corporation
State Banking Department - Sacremento
<PAGE>
[LETTERHEAD OF STATE BANKING DEPARTMENT APPEARS HERE]
June 29, 1992
Mr. Kenneth P. Christman, Jr.
Pillsbury Madison & Sutro
Post Office Box 7880
San Francisco, CA 94120
Re: Application for Approval of Acquisition of Trust Business - Correction
Dear Mr. Christman:
This is in regards to the application of First Trust of California, N.A., to
acquire the corporate trust business of the San Francisco Branch of Bankers
Trust of California, N.A. We note that said office is located at 50 Fremont
Street, not 343 Sansome Street, 7th Floor, as mentioned in our approval letter
of June 24, 1992, City and County of San Francisco, State of California.
Very truly yours,
JAMES E. GILLERAN
Superintendent of Banks
By /s/ Peter A. Van Hoecke
PETER A. VAN HOECKE
Deputy Superintendent
Office of Policy
PVH:mb
cc: Federal Deposit Insurance Corporation
State Banking Department - Sacramento
Mr. Brent Faye - Lillick & Charles
<PAGE>
[LETTERHEAD OF STATE BANKING DEPARTMENT APPEARS HERE]
June 30, 1992
Rodney R. Peck, Esq.
Pillsbury, Madison & Sutro
Post Office Box 7880
San Francisco, CA 94120
Re: Acquisition of the Trust Business of the San Francisco Branch
Office of Bankers Trust Company of California, N.A. by
First Trust Company of California, N.A.
Dear Mr. Peck:
This is in reference to the proposal of First Trust Company of California, N.A.
("First Trust California") to acquire the corporate trust business of the San
Francisco Branch Office of Bankers Trust Company of California, N.A. ("BTCC"),
pursuant to the Purchase and Assumption Agreement dated as of October 17, 1991
(the "Agreement").
In accordance with Financial Code Section 2053, the following documents have
been filed with the Superintendent:
1. Executed copy of the Agreement.
2. Certificate of Secretary of First Trust California certifying that the
Agreement has been approved by First Trust California in accordance
with Financial Code Section 2052.
3. Certificate of Secretary of BTCC certifying that the Agreement has been
approved by BTCC in accordance with Financial Code Section 2052.
Pursuant to Article 1 (commencing with Section 2050), Chapter 15, Division 1 of
the Financial Code, the Agreement is hereby approved. Pursuant to Financial Code
Section 2057, the time at which the approval of the Agreement will become
effective is hereby fixed at 8:00 a.m., Pacific Daylight Time, July 6, 1992.
Notice of the Agreement may now be published pursuant to Financial Code Section
2053. In accordance with Financial Code Section 2053, we will look forward to
receiving affidavits (or declarations under penalty of perjury) of publication
of the notice. Please note that the notice must be "published once a week for
---------------
four successive weeks in a newspaper published in the county in which the
- ---------------------
selling bank has its principal place of business, or if a branch or a branch
<PAGE>
Rodney R. Peck, Esq.
June 30, 1992
Page Two
business is sold then in a newspaper published in the county in which such
branch office is located, and in the county in which the purchasing bank has its
principal place of business. Within 10 days after the last publication of such
-------------------------------------------------
notice an affidavit showing publication in compliance herewith shall be filed in
- --------------------------------------------------------------------------------
the office of the superintendent." (Emphasis added.) (Fin. Code (S)2053.)
- ---------------------------------
Promptly after consummation of the Agreement, please file with us a closing
statement of fiduciary accounts of the trust business showing the condition of
the trust business immediately prior to consummation of the Agreement.
If you have any questions or comments regarding these matters, please give me a
call.
Very truly yours,
JAMES E. GILLERAN
Superintendent of Banks
By Original Signed by
Robert E. Thomas
ROBERT E. THOMAS
Counsel
RET:jcd
cc: R. Brent Faye, Esq.
Regional Administrator of National Banks, San Francisco
<PAGE>
POWER OF ATTORNEY
-----------------
Bankers Trust Company of California, National Association, a national
banking association ("BTCC"), hereby appoints each individual named below, in
his or her indicated capacity (or different future capacities) as an employee of
First Trust California, National Association ("First Trust"), as its
attorney-in-fact to act, each individually, in its place for the special purpose
of effecting the transfer of any and all rights, benefits, interests and
obligations to be transferred by BTCC to First Trust pursuant to that certain
Purchase Agreement, dated October 17, 1991, among First Bank National
Association, First Trust, BTCC and Bankers Trust New York Corporation (the
"Purchase Agreement"), including without limitation, (a) execution of
continuation statements, statements of amendment, statements of assignment,
statements of release and termination statements in connection with any
financing statement naming BTCC in its fiduciary capacity as secured party,
(b) execution of notices of assignment or transfer of rights or interests in
real property, and (c) execution of notices of assignment or transfer of any
documents, agreements, letters of credit, investment agreements, deposit
accounts, certificates of deposit and investments of any and all kinds:
1. Kurt Peterson - Vice President
2. Denise Burns - Vice President
3. Connie Barton - Assistance Vice President
BTCC further grants to each of these individuals full authority to act
in any manner both proper and necessary to exercise the foregoing powers,
including full power of substitution (such substitiution to be in favor of a
duly appointed officer of First Trust), and ratifies every act that he or she
may lawfully perform in exercising those powers.
This Power of Attorney is granted for a period of four years from the
date hereof.
This Power of Attorney is held for the benefit of First Trust and has
been created to protect certain rights to which First Trust has succeeded
pursuant to the Purchase Agreement. Specifically, those rights held by BTCC in
its capacity as trustee or other fiduciary in connection with the Purchased
Relationships (as that term is defined in the Purchase Agreement) transferred to
First Trust pursuant to the Purchase Agreement. BTCC intends that this Power of
Attorney be coupled with that interest. BTCC declares this Power of Attorney to
be irrevocable and renounces all rights to revoke it or to appoint another
person or other persons to perform the acts referred to herein.
Executed this 31st day of March, 1995, at New York, New York.
---- -----
BANKERS TRUST COMPANY
OF CALIFORNIA, NATIONAL
ASSOCIATION
By /s/signature appears here
-------------------------
Its SVP
----------------------
<PAGE>
Exhibit 4
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
BYLAWS
------
ARTICLE I
---------
Meetings of Shareholders
------------------------
Section 1.1. Annual Meeting. The annual meeting of the shareholders, for
--------------
the election of directors and the transaction of other business, shall be held
at a time and place as the Chairman or President may designate. Notice of such
meeting shall be given at least ten days prior to the date thereof, to each
shareholder of the Association. If, for any reason, an election of directors is
not made on the designated day, the election shall be held on some subsequent
day, as soon thereafter as practicable, with prior notice thereof.
Section 1.2. Special Meetings. Except as otherwise specially provided by
----------------
law, special meetings of the shareholders may be called for any purpose, at any
time by a majority of the board of directors, or by any shareholder or group of
shareholders owning at least ten percent of the outstanding stock. Every such
special meeting, unless otherwise provided by law, shall be called upon not less
than ten days prior notice stating the purpose of the meeting.
Section 1.3. Nominations for Directors. Nominations for election to the
-------------------------
board of directors may be made by the board of directors or by any shareholder.
Section 1.4. Proxies. Shareholders may vote at any meeting of the
-------
shareholders by proxies duly authorized in writing. Proxies shall be valid only
for one meeting and any adjournments of such meeting and shall be filed with the
records of the meeting.
Section 1.5. Quorum. A majority of the outstanding capital stock,
------
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders, unless otherwise provided by law. A majority of the votes cast
shall decide every question or matter submitted to the shareholders at any
meeting, unless otherwise provided by law or by the Articles of Association.
ARTICLE II
----------
Directors
---------
Section 2.1. Board of Directors. The board of directors (hereinafter
------------------
referred to as the "board"), shall have power to manage and administer the
business and affairs of the Association. All authorized corporate powers of the
Association shall be vested in and may be exercised by the board.
<PAGE>
Section 2.2. Powers. In addition to the foregoing, the board of
------
directors shall have and may exercise all of the powers granted to or conferred
upon it by the Articles of Association, the Bylaws and by law.
Section 2.3. Number. The board shall consist of a number of members to
------
be fixed and determined from time to time by resolution of the board or the
shareholders at any meeting thereof, in accordance with the Articles of
Association.
Section 2.4. Organization Meeting. The newly elected board shall meet
--------------------
for the purpose of organizing the new board and electing and appointing such
officers of the Association as may be appropriate. Such meeting shall be held on
the day of the election or as soon thereafter as practicable, and, in any event,
within thirty days thereafter. If, at time fixed for such meeting, there shall
not be a quorum present, the directors present may adjourn the meeting until a
quorum is obtained.
Section 2.5. Regular Meetings. The regular meetings of the board shall
----------------
be held, without notice, as the Chairman or President may designate and deem
suitable.
Section 2.6. Special Meetings. Special meetings of the board may be
----------------
called by the Chairman or the President of the Association, or at the request of
two or more directors. Each member of the board shall be given notice stating
the time and place of each such meeting.
Section 2.7. Quorum. A majority of the directors shall constitute a
------
quorum at any meeting, except when otherwise provided by law; but fewer may
adjourn any meeting. Unless otherwise provided, once a quorum is established,
any act by a majority of those constituting the quorum shall be the act of the
board.
Section 2.8. Vacancies. When any vacancy occurs among the directors, the
---------
remaining members of the board may appoint a director to fill such vacancy at
any regular meeting of the board, or at a special meeting called for that
purpose.
ARTICLE III
-----------
Committees
----------
Section 3.1. Advisory Board of Directors. The board may appoint persons,
---------------------------
who need not be directors, to serve as advisory directors on an advisory board
of directors established with respect to the business affairs of either this
Association alone or the business affairs of a group of affiliated organizations
of which this Association is one. Advisory directors, shall have such powers and
duties as may be determined by the board, provided, that the board's
responsibility for the business and affairs of this Association shall in no
respect be delegated or diminished.
-2-
<PAGE>
Section 3.2. Audit Committee. The board shall appoint an Audit
---------------
Committee which shall consist of at least two Directors which are not active
officers or employees of the Association. The Audit Committee shall direct and
review audits of the Association's fiduciary activities.
The members of the Audit Committee shall be appointed each year and
shall continue to act until their successors are named. The Audit Committee
shall have power to adopt its own rules and procedures and to do those things
which in judgment of such Committee are necessary or helpful with respect to the
exercise of its functions or the satisfaction of its responsibilities.
Section 3.3. Executive Committee. The board may appoint an Executive
-------------------
Committee which shall consist of at least three directors and which shall have,
and may exercise, all the powers of the board between meetings of the board or
otherwise when the board is not meeting.
Section 3.4. Other Committees. The board may appoint, from time to time,
----------------
committees of one or more persons who need not be directors, for such purposes
and with such powers as the board may determine. In addition, either the
Chairman or the President may appoint, from time to time, committees of one or
more officers, employees, agents or other persons, for such purposes and with
such powers as either the Chairman or the President deems appropriate and
proper.
Whether appointed by the board, the Chairman, or the President, any such
Committee shall at all times be subject to the direction and control of the
board.
Section 3.5. Meetings. Minutes and Rules. An advisory board of directors
---------------------------
and/or committee shall meet as necessary in consideration of the purpose of the
advisory board of directors or committee, and shall maintain minutes in
sufficient detail to indicate actions taken or recommendations made; unless
required by the members, discussions, votes or other specific details need not
be reported. An advisory board of directors or a committee may, in consideration
of its purpose, adopt its own rules for the exercise of any of its functions or
authority.
ARTICLE IV
----------
Officers and Employees
----------------------
Section 4.1. Chairman of the Board. The board may appoint one of its
---------------------
members to be Chairman of the board to serve at the pleasure of the board. The
Chairman shall supervise the carrying out of the policies adopted or approved by
the board; shall have general executive powers, as well as the specific powers
conferred by these Bylaws; shall also have and may exercise such powers and
-----
duties as from time to time may be conferred upon or assigned by the board.
-3-
<PAGE>
Section 4.2. President. The board may appoint one of its members to be
---------
President of the Association. In the absence of the Chairman, the President
shall preside at any meeting of the board. The President shall have general
executive powers, and shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Office of President, or
imposed by these Bylaws. The President shall also have and may exercise such
powers and duties as from time to time may be conferred or assigned by the
Board.
Section 4.3. Vice President. The board may appoint one or more Vice
--------------
Presidents who shall have such powers and duties as may be assigned by the board
and to perform the duties of the President on those occasions when the President
is absent, including presiding at any meeting of the board in the absence of
both the Chairman and President.
Section 4.4. Secretary. The board shall appoint a Secretary, or other
---------
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these Bylaws to be given; shall be
custodian of the corporate seal, records, document and papers of the
Association; shall provide for the keeping of proper records of all transactions
of the Association; shall have and may exercise any and all other powers and
duties pertaining by law, regulation or practice, to the Secretary, or imposed
by these Bylaws; and shall also perform such other duties as may be assigned
from time to time, by the Board.
Section 4.5. Other Officers. The board may appoint, and may authorize the
--------------
Chairman or the President to appoint, any officer as from time to time may
appear to the board, the Chairman or the President to be required or desirable
to transact the business of the Association. Such officers shall exercise such
powers and perform such duties as pertain to their several offices, or as may be
conferred upon or assigned to them by these Bylaws, the board, the Chairman or
the President.
Section 4.6. Tenure of Office. The Chairman or the President and all other
----------------
officers shall hold office for the current year for which the board was elected,
unless they shall resign, become disqualified, or be removed. Any vacancy
occurring in the Office of Chairman or President shall be filled promptly by the
board.
Any officers elected by the board or appointed by the Chairman or the
President may be removed at any time, with or without cause, by the affirmative
vote of a majority of the board or, if such officer was appointed by the
Chairman or the President, by the Chairman or the President, respectively.
-4-
<PAGE>
ARTICLE V
---------
Stock
-----
Section 5.1. Shares of stock shall be transferable on the books of the
Association, and a transfer book shall be kept in which all transfers of stock
shall be recorded. Every person becoming a shareholder by such transfer shall,
in proportion to such person's shares, succeed to all rights of the prior holder
of such shares. Each certificate of stock shall recite on its face that the
stock represented thereby is transferable only upon the books of the Association
properly endorsed.
ARTICLE VI
----------
Corporate Seal
--------------
Section 6.1. The Chairman, the President, the Secretary, any Assistant
Secretary or other officer designated by the board, the Chairman, or the
President, shall have authority to affix the corporate seal to any document
requiring such seal, and to attest the same. Such seal shall be substantially
in the following form:
ARTICLE VII
-----------
Miscellaneous Provisions
------------------------
Section 7.1. Execution of Instruments. All agreements, checks, drafts,
------------------------
orders, indentures, notes, mortgages, deeds, conveyances, transfers,
endorsements, assignments, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, guarantees, proxies and other instruments or
documents may be signed, countersigned, executed, acknowledged, endorsed,
verified, delivered or accepted on behalf of the Association, whether in a
fiduciary capacity or otherwise, by any officer of the Association, or such
employee or agent as may be designated from time to time by the board by
resolution, or by the Chairman or the President by written instrument, which
resolution or instrument shall be certified as in effect by the Secretary or an
Assistant Secretary of the Association. The provisions of this section are
supplementary to any provision of the Articles of Association or Bylaws.
- 5 -
<PAGE>
Section 7.2. Records. The Articles of Association, the Bylaws and the
-------
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for the purpose. The minutes or each meeting shall be signed by the Secretary,
or other officer appointed to act as Secretary of the meeting.
Section 7.3. Trust Files. There shall be maintained in the Association
-----------
files all fiduciary records necessary to assure that its fiduciary
responsibilities have been properly undertaken and discharged.
Section 7.4. Trust Investments. Funds held in a fiduciary capacity shall
-----------------
be invested according to the instrument establishing the fiduciary relationship
and according to law. Where such instrument does not specify the character and
class of investments to be made and does not vest in the Association a
discretion in the matter, funds held pursuant to such instrument shall be
invested in investments in which corporate fiduciaries may invest under law.
Section 7.5. Notice. Whenever notice is required by the Articles of
------
Association, the Bylaws or law, such notice shall be by mail, postage prepaid,
telegram, in person, or by any other means by which such notice can reasonably
be expected to be received, using the address of the person to receive such
notice, or such other personal data, as may appear on the records of the
Association. Prior notice shall be proper if given not more than 30 days nor
less than 10 days prior to the event for which notice is given.
ARTICLE VIII
------------
Indemnification
---------------
Section 8.1. The association shall indemnify to the full extent permitted
by, and in the manner permissible under, the Articles of Association and the
laws of the United States of America, as applicable and as amended from time to
time, any person made, or threatened to be made, a party to any action, suit or
proceeding, whether criminal, civil, administrative or investigative, by reason
of the fact that such person is or was a director, advisory director, officer or
employee of the Association, or any predecessor of the Association, or served
any other enterprise as a director or officer at the request of the Association
or any predecessor of the Association.
Section 8.2 The board in its discretion may, on behalf of the Association,
indemnify any person, other than a director, advisory director, officer or
employee, made a party to any action, suit or proceeding by reason of the fact
that such person is or was an agent of the Association or any predecessor of the
Association serving in such capacity at the request of the Association or any
predecessor of the Association.
-6-
<PAGE>
RESOLUTION
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
BYLAWS AMENDMENT
As amended by the board of directors of First Trust of California, National
Association (the "Association"), a national banking association, at a meeting
held at the principal offices of the Association, at 101 California Street,
Suite 1150, San Francisco, California, on the 12th day of January, 1993, at
11:15 am.
WHEREAS, The Association has received written approval from its regulator, the
Office of the Comptroller of the Currency ("OCC"), to appoint to its Trust Audit
Committee directors which are active officers and/or directly manage the
fiduciary activities of the Association, and
WHEREAS, the Bylaws of the Association have provided that the Trust Audit
Committee be composed of directors which are not active officers and/or
employees, and such Bylaws therefore require amendment to permit the
Association's Committee membership to be comprised of individuals who are active
officers and/or employees.
RESOLVED, That Section 3.2 of the Bylaws of First Trust of California, National
Association be amended to read as follows:
Section 3.2. Audit Committee. The board shall appoint an Audit Committee
---------------
which shall consist of at least two Directors. If legally permissible, the
Board may determine to name itself as the Audit Committee. The Audit
Committee shall direct and review audits of the Association's fiduciary
activities.
The members of the Audit Committee shall be appointed each year and shall
continue to act until their successors are named. The Audit Committee shall
have power to adopt its own rules and procedures and to do those things
which in the judgement of such Committee are necessary or helpful with
respect to the exercise of its functions or the satisfaction of its
responsibilities.
<PAGE>
ARTICLE IX
----------
Bylaws: Interpretation and Amendment
------------------------------------
Section 9.1. These Bylaws shall be interpreted in accordance with and
subject to appropriate provision of law, and may be amended, altered or
repealed, at any regular or special meeting of the board.
Section 9.2. A copy of the Bylaws, with all amendments, shall at all
times be kept in a convenient place at the main office of the Association, and
shall be open for inspection to all shareholders during Association hours.
-------------
I, Cecil D. Bobey, hereby certify that: (i) I am the duly constituted
secretary of FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION (the
"Association"), and secretary of its board of directors, and as such officer am
the official custodian of its records; and (ii) the foregoing bylaws are the
bylaws of the Association, and all of them are now lawfully in force and effect.
I have hereunto affixed my official signature and the seal of the
Association, in the City of San Fransisco, on the 15th day of June, 1992.
/s/ Cecil D. Bobey
---------------------------
Name: Cecil D. Bobey
Title: Secretary
-7-
<PAGE>
RESOLUTION
CORPORATE TRUST OFFICERS
RESOLVED, That the Board hereby appoints the below-listed affiliate officers as
officers of First Trust National Association (the "Institution") for the
following limited purposes in connection with proposed or existing corporate
trusteeship accounts or other corporate trust accounts, including, but not
limited to, escrow accounts and mortgage custody accounts: execution of
indentures, agreements and all documents required for account closings or
otherwise executed in the administration of such accounts; authentication of
certificates; execution of real property deeds, conveyances, transfers and
security interest filings; and execution of extensions with regard to letters of
credit, execution of draws on letters of credit and taking all other actions and
performing all other duties in connection with letters of credit. The titles of
such officers at the Institution shall be as listed below, and each such officer
shall also hold the position of Assistant Secretary of the Institution.
COLORADO NATIONAL BANK
Adam Dalmy, Asst. Vice President
Diane F. Reeder, Vice President
William S. Johnson, Vice President
FIRST BANK NATIONAL ASSOCIATION
Helena E. Jackson, Vice President
FIRST BANK NATIONAL ASSOCIATION D/B/A FIRST TRUST OREGON
Lawrence J. Bell, Vice President
FIRST BANK (N.A.)
Elizabeth Brozio, Asst. Vice President
JoAnn M. Schalk, Asst. Vice President
Albert Lundy, Vice President
Donna L. Zoeller, Asst. Vice President
FIRST BANK OF SOUTH DAKOTA (NATIONAL ASSOCIATION)
Elizabeth Woodsend, Asst. Vice President
Tim Hamel, Vice President
FIRST TRUST COMPANY OF NORTH DAKOTA NATIONAL ASSOCIATION
Kelley P. Boyum, Vice President
Carolyn Pekas, Trust Officer
FIRST TRUST COMPANY OF MONTANA NATIONAL ASSOCIATION
Deborah Kuykendall, Vice President
Sherrie Pantle, Asst. Vice President
FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION
John Axt, Asst. Vice President
Constance L. Barton, Asst. Vice President
Denise E. Burns, Vice President
Malinda Cleveland, Asst. Vice President
Clarence Eaglin, Asst. Vice President
Michael Ferrara, Asst. Vice President
Evelyn Furukawa, Asst. Vice President
Kerri S. Jones, Asst. Vice President
James Keldsen, Vice President
L. L. Lopes, Asst. Vice President
Jim Myers, Asst. Vice President
Kurt R. Peterson, Vice President
Susan S. Thorpe, Vice President
Susan Vargas, Asst. Vice President
Teresa Wall, Vice President
Melonee Young, Asst. Vice President
<PAGE>
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
Dennis J. Calabrese, Vice President Patrick J. Crowley, Vice President
David K. Leverich, Vice President Terry L. McRoberts, Vice President
Patricia A. Poole, Vice President
FIRST TRUST WASHINGTON
John P. Barron, Vice President
FURTHER RESOLVED, That such persons shall each hold their respective title
listed above and the position of Assistant Secretary of the Institution as long
as such persons continue to be officers of their respective affiliate, and that
any such Assistant Secretary is hereby authorized to certify a copy of these
resolutions and to certify to the officership of such affiliate officers.
<PAGE>
EXHIBIT 6
C O N S E N T
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, FIRST TRUST OF CALIFORNIA, NATIONAL ASSOCIATION, hereby consents
that reports of examination of the undersigned by Federal, State, Territorial or
District authorities may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Dated: December 3, 1996
FIRST TRUST OF CALIFORNIA,
NATIONAL ASSOCIATION
/s/ Jennifer Holder
-------------------------------------
Jennifer Holder, Vice President
<PAGE>
Exhibit 7
[LETTERHEAD OF FIRST TRUST CALIFORNIA APPEARS HERE]
February 21, 1996
Compliance with Comptroller of the Currency regulation 12CFR Part 18; Annual
Financial Disclosures to Shareholders; Disclosure of Financial and Other
Information by National Banks.
Attached are the Statements of Condition and Income for First Trust of
California, N.A., San Francisco, California as of December 31, 1995 and the same
statements as of December 31, 1994 for this bank.
The attached statements have not been reviewed or confirmed for accuracy or
relevance by the Office of the Comptroller for the Currency.
I, Merita Schollmeier, Vice President of First Trust of California, N.A., San
Francisco, California do hereby declare that I have read the attached disclosure
statements and attest to the correctness of the information included herein.
/s/ Merita Schollmeier
- -----------------------------------------
Merita Schollmeier, Vice President
<PAGE>
[LETTERHEAD OF FIRST TRUST CALIFORNIA APPEARS HERE]
FIRST TRUST OF CALIFORNIA, N.A.
- --------------------------------------------------------------------------------
DECEMBER 1995
ANNUAL DISCLOSURE STATEMENT
OFFICE OF COMPTROLLER OF THE CURRENCY FORMAT
FFIEC 033
<PAGE>
[LETTERHEAD OF FIRST TRUST CALIFORNIA APPEARS HERE]
<TABLE>
<CAPTION>
December 31, 1995
ASSETS
- ------
<S> <C>
Cash and Due from Banks $ 32,433,000
Investment Securities 3,317,000
Federal Funds Sold and Resale Agreements 0
Loans 0
Less Reserve for Loan Losses 0
-----------------
Net Loans 0
Trading Assets 117,000
Bank Premises and Equipment 0
Other Real Estate Owned 0
Investments in Unconsolidated Subsidiaries 0
Customer's Liability on Acceptances Outstanding 0
Intangible Assets 88,792,000
Other Assets 5,290,000
- ---------------------------------------------------------------------
Total Assets $ 129,949,000
=====================================================================
Note: Standby Letters of Credit $ 0
- -------------------------------
LIABILITIES
- -----------
Deposits $ 0
Federal Funds Purchased and Securities Sold to
Repurchase 0
Trading Liabilities 0
Other Borrowed Money 147,000
Mortgage Indebtedness and Obligations Under
Capitalized Leases 0
Bank's Liability on Acceptances Outstanding 0
Subordinated Notes and Debentures 0
Other Liabilities 7,193,000
- ---------------------------------------------------------------------
Total Liabilities $ 7,340,000
=====================================================================
SHAREHOLDERS' EQUITY
- --------------------
Common Stock $ 1,000,000
Surplus 121,200,000
Retained Earnings 409,000
Net Unrealized Gain on Marketable Equity Securities 0
- ---------------------------------------------------------------------
Total Shareholders' Equity $ 122,609,000
=====================================================================
Total Liabilities and
Shareholders' Equity $ 129,949,000
=====================================================================
</TABLE>
<PAGE>
EXHIBIT 25(c)
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
___________________________
FORM T-1
Statement of Eligibility and Qualification Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
__________________________
CHEMICAL TRUST COMPANY OF CALIFORNIA
(Exact name of trustee as specified in its charter)
CALIFORNIA 94-2926573
(State of incorporation (I.R.S. employer
if not a national bank) Identification No.)
101 California Street, Suite 2725
San Francisco, California 94111
(Address of principal executive offices) (Zip Code)
_______________________________
BankAmerica Corporation
(Exact name of Obligor as specified in its charter)
Delaware 94-1681731
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) Identification No.)
BankAmerica Corporation
555 California Street
San Francisco, California 94104
(Address of principal executive offices) (Zip Code)
________________________________
Subordinated Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
Superintendent of Banks of the State of California,
235 Montgomery Street, San Francisco, CA 94104-2980.
Board of Governors of the Federal Reserve System,
Washington, DC. 20511.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS.
If the Obligor or any Underwriter for the Obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation with the Obligor or Underwriters.
(Item 2 is at the date hereof based upon incomplete information but is
believed to be correct and may be considered to be complete unless modified
by an amendment to this Form T-1).
16. LIST OF EXHIBITS.
Exhibit 1. Articles of Incorporation of the Trustee as Now in Effect.
Exhibit 2. Certificate of Authority of the Trustee to Commence Business.
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust Powers
(Contained in Exhibit 2.)
Exhibit 4. Existing By-Laws of the Trustee.
Exhibit 5. Not Applicable
Exhibit 6. Consent of the Trustee.
Exhibit 7 Report of Condition of the Trustee.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Chemical Trust Company of California, a corporation organized and
existing under the laws of the State of California, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Los Angeles, and
State of California, on the 3rd.day of December, 1996.
CHEMICAL TRUST COMPANY OF CALIFORNIA
By /s/ James Nagy
-----------------------
James Nagy
Assistant Vice President
2
<PAGE>
EXHIBIT 1. Restated Articles of Incorporation of the Trustee as now in Effect.
- --------------------------------------------------------------------------------
3
<PAGE>
RESTATED ARTICLES OF INCORPORATION
----------------------------------
OF
--
MANUFACTURES HANOVER TRUST COMPANY OF CALIFORNIA
-----------------------------------------------
Lynn E. Loveall and Denise M. Westermark hereby certify as follows.
1. They are the vice president and the assistant secretary,
respectively, of Manufacturers Hanover Trust Company of California.
2. The Articles of Incorporation of Manufacturers Hanover Trust Company
of California are amended and restated to read in full as follows:
One: The name of the Corporation is:
---
Manufacturers Hanover Trust Company of California
Two: The purpose of the corporation is to engage in the commercial banking
---
business and the trust business and any other lawful activities which are not,
by applicable laws or regulations, prohibited to a commercial bank authorized to
engage in the trust business; provided, however, that this corporation shall not
engage in the business of making loans, investments or accepting deposits except
for (a) deposits that are generated from trust funds not currently invested and
that are properly secured to the extent required by law; (b) deposits
representing funds received for a special use in the capacity of managing agent
or custodian for an owner of , or investor in, real property, securities, or
other personal property; or for such owner or investor as agent or custodian of
funds held for investment or as escrow agent; or for an issuer of , or broker or
dealer in securities, in ac capacity such as paying agent, dividend disbursing
agent, or securities clearing agent; provided such deposits are not employed by
or for the account of the customer in the manner of a general purpose checking
account or interest-bearing account; or (c) making call loans to securities
dealers or purchasing money market instruments such as certificates of deposit,
commercial paper, government or municipal securities, and bankers acceptances;
provided, however that such authorized loans and investments may not be used as
a method of channeling funds to non banking affiliates of the corporation.
Three: The total number of shares which the corporation is authorized to
-----
issue is one hundred (100) shares of $100 par value each. The shares of the
corporation are subject to assessment by the corporation by order of the
Superintendent of Banks of the State of California for the purpose of correcting
an impairment of contributed capital in the manner and to the extent provided in
Division 1 of the California Financial Code.
Four: No amendment to these Articles of Incorporation shall become
----
effective unless the certificate of amendment or other instrument setting forth
such amendment is filed with the Secretary of State of the State of California
with the approval of the Superintendent of Banks of the State of California
endorsed thereon. Promptly after the amendment becomes effective, a copy of
such certificate of amendment or other
4
<PAGE>
instrument certified by the Secretary of State shall be filed with the
Superintendent of Banks.
3. The amendment and restatement set forth herein have been duly
approved by the Board of Directors of Manufacturers Hanover Trust Company of
California.
4. The amendment and restatement set forth herein have been duly
approved by the required vote of shareholders in accordance with sections 902
and 903 of the California Corporation Code. The corporation has outstanding 100
shares. The number of shares voting in favor of the amendment exceeded 50%,
satisfying the voting requirements necessary to pass the amendment.
We further declare under penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge
Dated: 12/23/86 /s Lynn C. Loveall
-------- ------------------
Lynn C. Loveall
Vice President
/s Denise M. Westermark
-----------------------
Denise M. Westermark
Assistant Secretary
5
<PAGE>
CERTIFICATE OF AMENDMENT
------------------------
OF
--
ARTICLES OF INCORPORATION
-------------------------
Nicholas J. Papanikolaw and Anthony J. Horan Certify that:
1. They are the chairman of the board and the assistant secretary,
respectively, of MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA, a California
-------------------------------------------------
corporation.
2. Article One of the Articles of Incorporation of this corporation
---
is amended to read as follows:
One The name of the corporation is:
---
CHEMICAL TRUST COMPANY OF
CALIFORNIA
3. The foregoing amendment of Articles of Incorporation has been duly
approved by the unanimous vote of share holders in accordance with Section 902
of the Corporation Code.
We further declare under the penalty of perjury under the laws of the
State of California that the matters set forth in this certificate are true and
correct of our own knowledge.
Date: March 26, 1992
--------------
/s Nicholas J. Papanikolaw
--------------------------
Chairman
/s Anthony J. Horan
-------------------
Assistant Secretary
6
<PAGE>
EXHIBIT 2. Certificate of Authority of the Trustee to Commence Business.
- --------------------------------------------------------------------------------
No. 1476
State of California
State Banking Department
Whereas, after due examination it appears that Chemical Trust Company of
California having its principal place of business in the City and County of San
Francisco, State of California, has complied with all the provisions of the
Banking Law of the State of California, and with all other necessary
requirements of law relating thereto;
Now Therefore, I, the undersigned, Superintendent of Banks of the State of
California, do certify that said bank is qualified and is hereby authorized to
transact a trust banking business at 50 California Street in the City and County
of San Francisco, State of California.
In Testimony Whereof witness my hand and Seal this 9th day of April, 1984 at
San Francisco, California.
/s LOUIS CARTER
Superintendent of Banks
State of California
(Seal of Superintendent of Banks
of the State of California)
7
<PAGE>
EXHIBIT 3. Authorization of the Trustee to Exercise Corporate Trust Powers.
- --------------------------------------------------------------------------------
(Contained in Exhibit 2.)
8
<PAGE>
EXHIBIT 4. Existing By-Laws of the Trustee.
- --------------------------------------------------------------------------------
9
<PAGE>
BY-LAWS
-------
OF
--
MANUFACTURERS HANOVER TRUST COMPANY OF CALIFORNIA
-------------------------------------------------
ARTICLE I
---------
PRINCIPAL OFFICE
----------------
Section 1. The head office for the transaction of the business of the
---------
corporation is hereby fixed and located at San Francisco, California. The Board
of Directors may change said head office from one location to another with the
written approval of the Superintendent of Banks of the State of California.
Section 2. The Board of Directors may establish and maintain one or
---------
more branch offices within the State of California when authorized by the
Superintendent of Banks of the State of California.
ARTICLE II
----------
Meetings of Shareholders
------------------------
Section 1. All meetings of the shareholders shall be held at any
---------
place within or without the State of California which may be designated either
by the Board of Directors or by the written consent of all shareholders entitled
to vote thereat and not present at the meeting given either before or after the
meeting and filed with the secretary of the corporation. In the absence of any
such designation, shareholders' meetings shall be held at the head office of the
corporation.
Section 2. The annual meeting of the shareholders of the corporation shall
---------
be held at such time in each year as may be designated from time to time by the
Board of Directors. At such meeting, directors shall be elected and any other
proper business may be transacted which is within the powers of the
shareholders. Written notice of each annual meeting shall be given to each
shareholder entitled to vote either personally or by first-class mail or other
means of written communication (which includes, without limitation and wherever
used in these By-Laws, telegraphic and facsimile communication), charges
prepaid, addressed to each shareholder at the address appearing on the books of
the corporation, or given by the shareholder to the corporation for the purpose
of notice. If any notice or report addressed to the shareholder at the address
of such shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice or report to the
shareholder at such address, all future notices or reports shall be deemed to
have been duly given without further mailing if the same shall be available for
the shareholder
10
<PAGE>
upon written demand of the shareholder at the principal executive office of the
corporation for a period of one (1) year from the date of the giving of the
notice or report to all other shareholders. If no address of a shareholder
appears on the books of the corporation or is given by the shareholder to the
corporation, notice is duly given to him if sent by mail or other means of
written communication addressed to the place where the principal executive
office of the corporation is located or if published at least once in a
newspaper or general circulation in the county in which said principal executive
office is located.
All such notices shall be given to each shareholder entitled thereto not
less than ten (10) days nor more than sixty (60) days before each annual
meeting. Any such notice shall be deemed to have been given at the time when
delivered personally or deposited in the United States mail or delivered to a
common carrier for transmission to the recipient or actually transmitted by the
person giving the notice by electronic means to the recipient or sent by other
means of written communication.
Such notices shall state:
(a) the place, date and hour of the meeting;
(b) those matters which the Board, at the time of the mailing of the
notice, intends to present for action by the shareholders;
(c) if directors are to be elected, the names of nominees intended at the
time of the notice to be presented by management for election; and
(d) such other matters, if any, as may be expressly required by statute.
Section 3. Special meetings of the shareholders for the purpose of taking
---------
any action permitted to be taken by the shareholders under the General
Corporation Law, the California Banking Law and the Articles of Incorporation of
this corporation, may be called by the chairman of the board or the president,
or by any vice president, or by the Board of Directors, or by the holders of
shares entitled to cast not less than ten percent (10%) of the votes at the
meeting. Except in special cases where other express provision is made by
statute, notice of such special meetings shall be given in the same manner and
contain the same statements as required for annual meetings of shareholders.
Notice of any special meeting shall also specify the general nature of the
business to be transacted, and no other business may be transacted at such
meeting.
Section 4. The presence in person or by proxy of the holders of a majority
---------
of the shares entitled to vote at any meeting shall constitute a quorum for the
transaction of business. The shareholders present at a duly called or held
meeting at which a quorum is present may continue to transact business until
adjournment, notwithstanding the withdrawal of enough shareholders to leave less
than a quorum, if any action taken (other than adjournment) is approved by at
least a majority of the shares required to constitute a quorum. In the absence
of a quorum, any meeting of shareholders may be adjourned from time to time by
the vote of a majority of the shares represented either in person or by proxy,
but no other business may be transacted except as provided in the preceding
sentence.
11
<PAGE>
Section 5. The affirmative vote of a majority of the shares represented and
---------
voting at a duly held meeting at which a quorum is present (which shares voting
affirmatively shall constitute at least a majority of the required quorum) shall
be the act of the shareholders except as may otherwise be provided by (i)
Section 4 of this Article II, (ii) the cumulative voting provisions for this
election of directors as stated in this Section below, and (iii) the California
General Corporation Law, the California Banking Law or the Articles of
Incorporation of this corporation. Subject to the requirements of the next
sentence, every shareholder entitled to vote at any election for directors may
cumulate his votes and give one candidate a number of votes equal to the number
of directors to be elected multiplied by the number of votes to which his shares
are normally entitled, or distribute his votes on the same principle among as
many candidates as he shall think fit. No shareholder shall be entitled to
cumulate votes unless such candidate or candidates' names have been placed in
nomination prior to the voting and the shareholder has given notice at the
meeting prior to the voting of the shareholder's intention to cumulate his
votes. If any one shareholder has given such notice, all shareholders may
cumulate their votes for candidates in nomination. The candidates receiving the
highest number of votes of shares entitled to be voted for them, up to the
number of directors to be elected, shall be elected.
Section 6. Any action which, under any provision of the laws of the State
---------
of California, may be taken at a meeting of the shareholders, may be taken
without a meeting if authorized by a writing signed by persons entitled to vote
a majority of the shares of the corporation, and filed with the secretary of the
corporation.
Section 7. Every person entitled to vote or execute consents shall have the
---------
right to do so either in person or by one or more agents authorized by a written
proxy executed by such person or his duly authorized agent and filed with the
secretary. Proxies shall be valid and shall be executed in accordance with
Section 705 of the General Corporation Law or successor section thereto.
ARTICLE III
-----------
Board of Directors
------------------
Section 1. Subject to the provisions of the California General Corporation
---------
Law, the California Banking Law and any limitations in the Articles of
Incorporation and these By-Laws as to action to be authorized or approved by the
shareholders, the business and affairs of the corporation shall be managed and
all corporate powers shall be exercised by or under the direction of the Board
of Directors.
Section 2. The authorized number of directors shall not be less than six
---------
(6) nor more than eleven (11). The exact authorized number of directors shall
be fixed from time to time, within the limits specified in this Section or in
the Articles of Incorporation, by the Board of Directors, or by a By-law or
amendment thereof duly adopted by the vote of a majority of the shares
represented and voting at a duly held meeting at which a quorum is present
(which shares voting affirmatively also constitute at least a majority of the
required quorum), or by the written consent of the holders of a majority of the
outstanding shares entitled to vote, until changed by a duly adopted amendment
to the Articles of Incorporation or by an amendment to
12
<PAGE>
this Section adopted by approval of the holders of a majority of the outstanding
shares. No amendment shall be adopted reducing the minimum authorized number of
Directors to a number less than five (5).
Section 3. The directors shall be elected at each annual meeting of
---------
shareholders, but if any such annual meeting is not held or the directors are
not elected thereat, the directors may be elected at any special meeting of
shareholders held for that purpose or by unanimous written consent of all shares
entitled to vote for the election of directors. Each director, including a
director elected to fill a vacancy, shall hold office until his successor is
elected, except as otherwise provided by statute.
Section 4. Vacancies in the Board of Directors, except for a vacancy
---------
created by the removal of a director, may be filled by a majority of the
directors then in office, whether or not less than a quorum, or by a sole
remaining director.
Section 5. Each director upon taking office, after the corporation's
---------
receipt of a Certificate of Authority to transact business as a trust company
from the Superintendent of Banks of the State of California, shall make an oath
or affirmation as required by Section 682 of the California Financial Code or
successor section thereto, and each such oath, subscribed by the director and
certified by the officer before whom it is taken, shall be immediately filed
with the Superintendent of Banks.
ARTICLE IV
----------
Meetings of Directors
---------------------
Section 1. The Board of Directors shall hold a regular or special meeting
---------
at least once each calendar month. Regular meetings of the Board of Directors
shall be held at any time and place within the State of California that has been
designated by resolution from time to time by the Board of Directors. In the
absence of such designation, regular meetings shall be held at the head office
of the corporation, except as otherwise provided in this Section 1. Immediately
following each annual meeting of the shareholders there shall be a regular
meeting of the Board of Directors of the corporation within the State of
California at the place of said annual meeting or at such other place as shall
have been designated by the Board of Directors for the purpose of organization,
election of officers and the transaction of other business. Other regular
meetings of the Board of Directors shall be held without call on such date and
time as may be fixed by the Board of Directors; provided, however, that should
any such day fall on a legal holiday, then said meeting shall be held at the
same time on the next business day thereafter ensuing which is not a legal
holiday. Notice of regular meetings of the directors is hereby dispensed with
and no notice whatever of any such meeting need be given, provided that notice
of any change in the time or place of regular meetings shall be given to all of
the directors in the same manner as notice for special meetings of the Board of
Directors.
Section 2. Special meetings of the Board of Directors may be held at any
---------
place within or without the State of California which has been designated in the
notice of the meeting, or, if not designated in the
13
<PAGE>
notice or if there is no notice, at the head office of the corporation. Special
meetings of the Board of Directors for any purpose or purposes may be called at
any time by the chairman of the Board or president or by any two directors.
Notice of the time and place of special meetings shall be delivered personally
or by telephone to each director, or sent by first-class mail or telegram or
facsimile transmission, charges prepaid, addressed to him at his address as it
appears upon the records of the corporation or, if it is not so shown on the
records and is not readily ascertainable, at the place at which the meetings of
the directors are regularly held. In case such notice is mailed, it shall be
deposited in the United States mail at least four (4) days prior to the time of
the holding of the meeting. In case such notice is telegraphed or sent by
facsimile transmission, it shall be delivered to a common carrier for
transmission to the director or actually transmitted by the person giving the
notice by electronic means to the director at least twenty-four (24) hours prior
to the time of the holding of the meeting. Any notice given personally or by
telephone may be communicated to either the director or to a person at the
office of the director whom the person giving the notice has reason to believe
will promptly communicate it to the director. Such deposit in the mail, delivery
to a common carrier, transmission by electronic means or delivery, personally or
by telephone, as above provided, shall be due, legal and personal notice to such
directors. The notice need not specify the place of the meeting if the meeting
is to be held at the head office of the corporation, and need not specify the
purpose of the meeting.
Section 3. Presence of a majority of the authorized number of directors at
---------
a meeting of the Board of Directors constitutes a quorum for the transaction of
business, except as hereinafter provided. Every act or decision done or made by
a majority of the directors present at a meeting duly held at which a quorum is
present shall be deemed the act of the Board of Directors, subject to the
provisions of Section 310, 311 and 317 of the California General Corporation
Law. Members of the Board may participate in a meeting through use of
conference telephone or similar communications equipment, so long as all members
participating in such meeting can hear one another. A meeting at which a quorum
is initially present may continue to transact business notwithstanding the
withdrawal of directors, provided that any action taken is approved by at least
a majority of the required quorum for such meeting. A majority of the directors
present, whether or not a quorum is present, may adjourn any meeting to another
time and place. If the meeting is adjourned for more than twenty-four (24)
hours, notice of any adjournment to another time or place shall be given prior
to the time of the adjourned meeting to the directors who were not present at
the time of the adjournment.
Section 4. Notice of a meeting need not be given to any director who signs
---------
a waiver of notice or consent to holding the meeting or an approval of the
minutes thereof, whether before or after the meeting, or who attends the meeting
without protesting, prior thereto or at its commencement, the lack of notice to
such director. All such waivers, consents and approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Section 5. Any action required or permitted to be taken by the Board of
---------
Directors may be taken without a meeting if all members of the Board shall
individually or collectively consent in writing to such action. Such written
consent or consents shall be filed with the minutes of the proceedings of the
Board. Such action by written consent shall have the same force and effect as a
unanimous vote of such directors.
Section 6. The provisions of this Article IV shall also apply, with
---------
necessary changes in points of detail, to committees of the Board of Directors,
if any, and to actions by such committees (except that regular meetings of
committees shall be established by the committees and except that special
meetings of a committee may also be called at any time by any two members of the
committee), unless otherwise provided
14
<PAGE>
by these By-Laws or by the resolution of the Board of Directors designating such
committees. For such purpose, references to "the Board" or "the Board of
Directors" shall be deemed to refer to each such committee and references to
"directors" or "members of the Board" shall be deemed to refer to members of the
committee. Committees of the Board of Directors may be designated, and shall be
subject to the limitations on their authority, as provided in Section 311 of the
General Corporation Law or any successor section thereto. The appointment of
members or alternate members of a committee requires the vote of a majority of
the authorized number of directors.
Section 7. Directors and members of committees may receive such
---------
compensation, if any, for their services, and such reimbursement for expenses,
as may be fixed or determined by resolution of the Board.
ARTICLE V
---------
Officers
--------
Section 1. The officers of the corporation shall be a chairman of the
---------
board or a president or a general manager, or any combination of the foregoing,
a secretary, and a treasurer, who shall also be the chief financial officer of
the corporation. The corporation may also have, at the discretion of the Board
of Directors, one or more executive vice presidents, senior vice presidents and
vice presidents, one or more assistant secretaries, one or more assistant
treasurers, and such other officers as may be designated from time to time by
the Board of Directors. Any number of offices may be held by the same person.
The officers shall be elected by the Board of Directors and shall hold office at
the pleasure of such Board.
Chairman of the Board
---------------------
Section 2. The chairman of the board, if there be such officer,
---------
shall, if present, preside at all meetings of the Board of Directors and
exercise and perform such other powers and duties as may be from time to time
assigned to him by the Board of Directors or prescribed by the By-Laws.
President
---------
Section 3. Subject to such powers and duties, if any, as may be
---------
prescribed by these By-Laws or the Board of Directors for the chairman of the
board, if there be such officer, the president shall be the chief executive
officer of the corporation and shall, subject to the control of the Board of
Directors, have general supervision, direction and control of the business and
officers of the corporation. He shall preside at all meetings of the
shareholders and, in the absence of the chairman of the board, or if there be
none, at all meetings of the Board of Directors. He shall have all the powers
and shall perform all of the duties which are ordinarily inherent in the office
of the president, and he shall have such further powers and shall perform such
further duties as may be prescribed for him by the Board of Directors.
15
<PAGE>
General Manager
---------------
Section 4. In the absence or disability or refusal to act of the
---------
president, the general manager shall perform all of the duties of the president
and when so acting shall have all the powers of and be subject to all the
restrictions upon the president.
Vice Presidents
---------------
Section 5. In the absence or disability or refusal to act of the
---------
president or the general manager, the executive vice president designated by the
president or the general manager or the Board of Directors, or, if there be
none, the senior vice president so designated, or if there be none, the vice
president so designated shall perform all of the duties of the president and
when so acting shall have all the powers of and be subject to all the
restrictions upon the president. The executive vice presidents, the senior vice
presidents and the vice presidents shall have such other powers and perform such
other duties as from time to time may be prescribed for them, respectively, by
the Board of Directors or the By-Laws.
Secretary
---------
Section 6. The secretary shall keep or cause to be kept at the head
---------
office of the corporation or such other place as the Board of Directors may
order, a book of minutes of all proceedings of the shareholders, the Board of
Directors and committees of the Board, with the time and place of holding,
whether regular or special, and if special how authorized, the notice thereof
given, the names of those present at directors' and committee meetings, and the
number of shares present or represented at shareholders' meetings. The
secretary shall keep or cause to be kept at the head office a record of
shareholders or a duplicate record of shareholders showing the names of the
shareholders and their addresses, the number of shares and classes of shares
held by each, the number and date of certificates issued for the same and the
number and date of cancellation of every certificate surrendered for
cancellation. The secretary or an assistant secretary or, if they are absent or
unable or refuse to act, any other officer of the corporation, shall give or
cause to be given notice of all the meetings of the shareholders, the Board of
Directors and committees of the Board required by the By-Laws or by law to be
given, and he shall keep the seal of the corporation, if any, in safe custody
and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or by the By-Laws.
Section 7. It shall be the duty of the assistant secretaries to
---------
assist the secretary in the performance of his duties and generally to perform
such other duties as may be delegated to them by the Board of Directors.
16
<PAGE>
Treasurer
---------
Section 8. The treasurer shall be the chief financial officer of the
---------
corporation and shall keep and maintain, or cause to be kept and maintained,
adequate and correct books and records of account of the corporation. He shall
receive and deposit all moneys and other valuables belonging to the corporation
in the name and to the credit of the corporation and shall disburse the same
only in such manner as the Board of Directors or the appropriate officers of the
corporation may from time to time determine, shall render to the president and
the Board of Directors, whenever they request it, an account of all his
transactions as treasurer and of the financial condition of the corporation, and
shall perform such further duties as the Board of Directors may require.
Section 9. It shall be the duty of the assistant treasurers to assist
---------
the treasurer in the performance of his duties and generally to perform such
other duties as may be delegated to them by the Board of Directors.
ARTICLE VI
----------
Annual Report
-------------
Section 1. So long as the corporation shall have fewer than one
---------
hundred shareholders of record (determined as provided in Section 605 of the
General Corporation Law of the State of California), the requirement of Section
1501(a) of said law that an annual report be sent to the shareholders is
expressly waived.
ARTICLE VII
-----------
Amendments
----------
Section 1. New By-Laws may be adopted or these By-Laws may be amended
---------
or repealed by the affirmative vote or written consent of a majority of the
outstanding shares entitled to vote, except as otherwise provided by law or by
the Articles of Incorporation or these By-Laws.
Section 2. Subject to the right of shareholders as provided in
---------
Section 1 of this Article to adopt, amend or repeal By-Laws, and except as
otherwise provided by law or by the Articles of incorporation, By-Laws, or other
than a by-law or amendment thereof changing the authorized maximum or minimum
number of directors, may be adopted, amended or repealed by the Board of
Directors.
17
<PAGE>
Section 3. Any amendment to these By-Laws shall become effective only
---------
when approved by the Superintendent of Banks of the State of California and when
a copy thereof, certified by the secretary of the corporation, has been filed
with the Superintendent of Banks.
18
<PAGE>
EXHIBIT 6. Consent of the Trustee.
- --------------------------------------------------------------------------------
Chemical Trust Company of California hereby consents, in accordance with the
provisions of Section 321(b) of the Trust Indenture Act of 1939, that reports of
examinations by Federal, State, Territorial and District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
CHEMICAL TRUST COMPANY OF CALIFORNIA
BY: /s/ James Nagy
--------------
James Nagy
Assistant Vice President
19
<PAGE>
EXHIBIT 7. Report of Condition of the Trustee.
- --------------------------------------------------------------------------------
20
<PAGE>
TRUST COMPANY
CONSOLIDATED REPORT OF CONDITION OF Chemical Trust Company of California
--------------------------------------
(Legal Title)
LOCATED AT San Francisco San Francisco CA 94111
-------------------------------------------------------------
(City) (County) (State) (Zip)
AS OF CLOSE OF BUSINESS ON September 30, 1995 BANK NO. 1476
---------------------- -----
- ------------------------------------------------------------------------
- ------------------------------------------------------------------------
<TABLE>
<CAPTION>
ASSETS DOLLAR AMOUNT IN THOUSANDS
<S> <C> <C> <C>
1. Cash and due from banks 12,448
2. U.S. Treasury securities 10,010
3. Obligations of other U.S. Government agencies and corporations
4. Obligations of States and political subdivisions
5. Other securities (including $ corporate stock
----------------
(a) Loans
(b) Less: Reserve for possible loan losses
(c) Loans (Net)
7. Bank Premises, furniture and fixtures and other assets representing bank
premises (including $ -0- capital leases) 170
-------------------------
8. Real estate owned other than bank premises
9. Investments in subsidiaries not consolidated
10. Other assets (complete schedule on reverse) (including intangibles) 1,157
-------
11. TOTAL ASSETS 23,785
------
LIABILITIES
12. Liabilities For borrowed money
13. Mortgage indebtedness (including $ capital leases)
----------------
14. Other liabilities (complete on schedule on reverse 5,368
15. TOTAL LIABILITIES 5,368
=====
16. Capital notes and debentures
SHAREHOLDERS EQUITY
17. Preferred stock--
(Number shares outstanding ) Amount $
----------------
18. Common stock--
(Number shares authorized 100 ) Amount $
----------------
(Number shares outstanding 100 ) Amount $ 10
----------------
19. Surplus Amount $ 9,990
20. TOTAL CONTRIBUTED CAPITAL 10,000
21. Retained earnings and other capital reserves 8,417
22. TOTAL SHAREHOLDERS EQUITY 18,417
23. TOTAL LIABILITIES AND CAPITAL ACCOUNTS 23,785
======
</TABLE>
21
<PAGE>
MEMORANDA
1. Assets deposited with State Treasurer to qualify for exercise of fiduciary
powers (market value) 605
The undersigned, Francis J. Farrell, VP, Manager & CFO and
------------------------------------- ---
(Name and Title)
Frank Seidel, VP & Manager
--------------------------
(Name and Title)
of the above named trust company, each declares, for himself alone and not for
the other: I have a personal knowledge of the matters contained in this report
(including the reverse side hereof), and I believe that each statement in said
report is true. Each of the undersigned, for himself alone and not for the
other, certifies under penalty of perjury that the foregoing is true and
correct.
Executed on 10/30/95, at San Francisco, California
-------- -------------
(Date) (City)
s/Francis J. Farrell s/Frank Seidel
-------------------- --------------
(Signature) (Signature)
<TABLE>
<CAPTION>
SCHEDULE OF OTHER ASSETS
<S> <C>
Accounts Receivable-Trade 44
Accounts Receivable-Chemical 559
Accrued Interest 43
Deferred Taxes 396
Other 115
Total (same as Item 10) 1,157
=====
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE OF OTHER LIABILITIES
<S> <C>
Accrued Income Taxes 2,188
Accrued Expenses & A/P 161
Accrued Inter company Exp/Pay 269
Accrued Pension & Benefits 2,750
Total (same as Item 14) 5,368
=====
</TABLE>
22
