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)
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
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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.
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
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(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
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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
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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
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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.
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4. Agreements. The Company agrees with the Underwriters that:
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(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
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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
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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:
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(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 Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx 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
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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
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the Company in writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
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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
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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
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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
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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,
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however, if the defendants in any such action include both the indemnified party
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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
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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
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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 0000
Xxx) 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
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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
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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
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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
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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, 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, attention of the Secretary.
11. Successors. This Agreement will inure to the benefit of and be
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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.
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EXHIBIT A
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FORM OF OPINION OF
COUNSEL TO THE COMPANY
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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
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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
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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;]
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(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;
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(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
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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.
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