NationsBank Corporation
NationsBank (DE) Corporation
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 28, 1998
Supplementing the Indenture, dated
as of January 1, 1995, between
NationsBank Corporation and
The Bank of New York, as Trustee
The Bank of New York,
Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of August 28,
1998 (the "First Supplemental Indenture"), among NationsBank
Corporation, a North Carolina Corporation ("NationsBank"),
NationsBank (DE) Corporation, a Delaware corporation
("NationsBank (DE)") and a direct wholly owned subsidiary of
NationsBank, and The Bank of New York, a New York banking
corporation, as Trustee (the "Trustee") under the Indenture
referred to herein;
WHEREAS, NationsBank and the Trustee heretofore
executed and delivered an Indenture, dated as of January 1,
1995 (the "Indenture"); and
WHEREAS, pursuant to the Indenture, NationsBank issued
and the Trustee authenticated and delivered one or more
series of NationsBank's Notes (the "Securities"); and
WHEREAS, NationsBank and BankAmerica Corporation, a
Delaware corporation ("BankAmerica"), have entered into the
Agreement and Plan of Reorganization, dated as of April 10,
1998, pursuant to which (i) NationsBank will merge (the
"Reincorporation Merger") with and into NationsBank (DE), in
accordance with the terms and conditions of the Plan of
Reincorporation Merger by and between NationsBank and
NationsBank (DE), dated as of August 3, 1998, with
NationsBank (DE) as the surviving corporation in the
Reincorporation Merger, and (ii) BankAmerica will thereafter
merge (the "Merger," and together with the Reincorporation
Merger, the "Reorganization") with and into NationsBank
(DE), with NationsBank (DE) as the surviving corporation in
the Merger; and
WHEREAS, the Reorganization is expected to be
consummated on September 30, 1998; and
WHEREAS, Section 11.01 of the Indenture provides that
in the case of the Reorganization, NationsBank (DE) shall
expressly assume by supplemental indenture all the
obligations under the Securities and the Indenture on the
part of NationsBank to be performed or observed; and
WHEREAS, Section 10.01(a) of the Indenture provides
that NationsBank and the Trustee may amend the Indenture and
the Securities without notice to or consent of any holders
of the Securities in order to comply with Article Eleven of
the Indenture; and
WHEREAS, Section 10.01(f) of the Indenture provides
that NationsBank and the Trustee may amend the Indenture
without notice to or consent of the holders of the
Securities in order to supplement any provision contained in
the Indenture; and
WHEREAS, this First Supplemental Indenture has been
duly authorized by all necessary corporate action on the
part of each of NationsBank (DE) and NationsBank.
NOW, THEREFORE, NationsBank (DE), NationsBank and the
Trustee agree as follows for the equal and ratable benefit
of the holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION, ETC.
SECTION 1.1. Assumption of the Securities.
NationsBank (DE) hereby expressly assumes the due and
punctual payment of the principal of (and premium, if any,
on) and any interest on all the Securities, according to
their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the
Indenture to be performed by NationsBank.
SECTION 1.2. The Company. Effective September 30,
1998 the name of the Company, as the successor corporation
under the Indenture, shall be BankAmerica Corporation.
SECTION 1.3. Supplemental Provisions. In connection
with the issuance of Securities under this Indenture:
(a) Definitions in the present Section 1.01 are
hereby amended as follows:
(i) The present definitions of "Company
Request," "Company Order" and "Company Consent"
are hereby deleted and replaced with the
following:
"The terms Company Request,' Company
Order' and Company Consent' mean,
respectively, a written request, order or
consent signed in the name of the Company by
its Chairman of the Board, Chief Executive
Officer, President, Chief Financial Officer,
Vice President, General Counsel, Deputy or
Associate General Counsel or Treasurer and
delivered to the Trustee."
(ii) The present definition of "Officers'
Certificate" is hereby deleted and replaced with the
following:
"The term Officers' Certificate' shall
mean a certificate signed by the Chairman of
the Board, the Chief Executive Officer,
President, Chief Financial Officer,
Vice President, General Counsel, Deputy or
Assistant General Counsel or Treasurer of the
Company and delivered to the Trustee."
(b) The present Section 2.03(b)(20) is hereby
amended by deleting the present Section 2.03(b)(20) and
replacing it with the following Section 2.03(b)(20) which
shall read as follows:
"(20) any other terms of the Securities or
provisions relating to the payment of principal,
premium (if any) or interest thereon, including,
but not limited to, whether such Securities are
issuable at a discount or premium, as amortizable
Securities, and if payable in, convertible or
exchangeable for commodities or for the
securities of the Company or any third party."
SECTION 1.4. Trustee's Acceptance. The Trustee
hereby accepts this First Supplemental Indenture and agrees
to perform the same under the terms and conditions set forth
in the Indenture.
ARTICLE II
MISCELLANEOUS
SECTION 2.1. Effect of Supplemental Indenture. Upon
the later to occur of (i) the execution and delivery of this
First Supplemental Indenture by NationsBank (DE),
NationsBank and the Trustee and (ii) the consummation of the
Reincorporation Merger, the Indenture shall be supplemented
in accordance herewith, and this First Supplemental
Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or
hereafter authenticated and delivered under the Indenture
shall be bound thereby.
SECTION 2.2. Indenture Remains in Full Force and
Effect. Except as supplemented hereby, all provisions in
the Indenture shall remain in full force and effect.
SECTION 2.3. Indenture and Supplemental Indenture
Construed Together. This First Supplemental Indenture is an
indenture supplemental to and in implementation of the
Indenture, and the Indenture and this First Supplemental
Indenture shall henceforth be read and construed together.
SECTION 2.4. Confirmation and Preservation of
Indenture. The Indenture as supplemented by this First
Supplemental Indenture is in all respects confirmed and
preserved.
SECTION 2.5. Conflict with Trust Indenture Act. If
any provision of this First Supplemental Indenture limits,
qualifies or conflicts with any provision of the Trust
Indenture Act ("TIA") that is required under the TIA to be
part of and govern any provision of this First Supplemental
Indenture, the provision of the TIA shall control. If any
provision of this First Supplemental Indenture modifies or
excludes any provision of the TIA that may be so modified or
excluded, the provision of the TIA shall be deemed to apply
to the Indenture as so modified or to be excluded by this
First Supplemental Indenture, as the case may be.
SECTION 2.6. Severability. In case any provision in
this First Supplemental Indenture 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 2.7. Terms Defined in the Indenture. All
capitalized terms not otherwise defined herein shall have
the meanings ascribed to them in the Indenture.
SECTION 2.8. Headings. The Article and Section
headings of this First Supplemental Indenture have been
inserted for convenience of reference only, are not to be
considered part of this Supplemental Indenture and shall in
no way modify or restrict any of the terms or provisions
hereof.
SECTION 2.9. Benefits of First Supplemental
Indenture, etc. Nothing in this First Supplemental
Indenture or the Securities, express or implied, shall give
to any Person, other than the parties hereto and thereto and
their successors hereunder and thereunder and the holders of
the Securities, any benefit of any legal or equitable right,
remedy or claim under the Indenture, this First Supplemental
Indenture or the Securities.
SECTION 2.10. Successors. All agreements of
NationsBank (DE) in this First Supplemental Indenture shall
bind its successors. All agreements of the Trustee in this
First Supplemental Indenture shall bind its successors.
SECTION 2.11. Trustee Not Responsible for Recitals.
The recitals contained herein shall be taken as the
statements of NationsBank and NationsBank (DE), and the
Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to, and shall not be
responsible for, the validity or sufficiency of this First
Supplemental Indenture.
SECTION 2.12. Certain Duties and Responsibilities of
the Trustees. In entering into this First Supplemental
Indenture, the Trustee shall be entitled to the benefit of
every provision of the Indenture relating to the conduct or
affecting the liability or affording protection to the
Trustee, whether or not elsewhere herein so provided.
SECTION 2.13. Governing Law. This First Supplemental
Indenture shall be governed by, and construed in accordance
with, the laws of the State of New York but without giving
effect to applicable principles of conflicts of law to the
extent that the application of the laws of another
jurisdiction would be required thereby.
SECTION 2.14. Counterpart originals. The parties may
sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all
of them together represent the same agreement.
IN WITNESS WHEREOF, the parties have caused this First
Supplemental Indenture to be duly executed as of the date
first written above.
NationsBank (DE) Corporation
By: /s/ JOHN E. MACK
Name: John E. Mack
Title: Senior Vice President
NationsBank Corporation
By: /S/ JOHN E. MACK
Name: John E. Mack
Title: Senior Vice President
The Bank of New York, as Trustee
By: /S/ HEIDI VAN HORN-BASH
Name: Heidi Van Horn-Bash
Title: Agent