EXHIBIT 4.43
Barnett Banks, Inc.
NB Holdings Corporation
NationsBank Corporation
9.875% Subordinated Notes, due June 2001
10.875% Series A, Subordinated Medium-Term Notes, due March 2003
8.5% Subordinated Notes, due January 2007
9.83% Series B, Subordinated Medium-Term Notes, due May 2003
THIRD SUPPLEMENTAL INDENTURE
Dated as of January 9, 1998
Supplementing the Indenture, dated
as of October 19, 1990, between
Barnett Banks, Inc. and
Morgan Guaranty Trust Company of New York,
as Trustee
First Trust of New York, National Association,
as successor to Morgan Guaranty Trust Company of New York,
Trustee
THIRD SUPPLEMENTAL INDENTURE, dated as of January 9, 1998 (the
"Supplemental Indenture"), among NationsBank Corporation, a North Carolina
corporation ("NationsBank"), NB Holdings Corporation, a Delaware corporation
("Holdings"), Barnett Banks, Inc., a Florida corporation ("Barnett"), and First
Trust of New York, National Association, successor to Morgan Guaranty Trust
Company of New York, as Trustee (the "Trustee") under the Indenture referred to
herein;
WHEREAS, Barnett and the Trustee heretofore executed and delivered an
Indenture, dated as of October 19, 1990 (the "Indenture"); and
WHEREAS, pursuant to the Indenture Barnett issued and the Trustee
authenticated and delivered (i) the $100 million aggregate principal amount of
Barnett's 9.875% Subordinated Notes, due June 2001; (ii) the $55 million
aggregate principal amount of Barnett's 10.875% Series A, Subordinated
Medium-Term Notes, due March 2003; (iii) the $100 million aggregate principal
amount of Barnett's 8.5% Subordinated Notes, due January 2007, and (iv) the
$500,000 aggregate principal amount of Barnett's 9.83% Series B, Subordinated
Medium-Term Notes, due May 2003 (the "Securities"); and
WHEREAS, NationsBank, Holdings and Barnett have entered into the Agreement
and Plan of Merger, dated as of August 29, 1997, and amended as of November 18,
1997, pursuant to which Barnett will merge with and into Holdings (the "Barnett
Merger") on the date hereof; and
WHEREAS, Section 1001 of the Indenture provides that in the case of the
Barnett Merger, Holdings shall expressly assume by supplemental indenture all
the obligations under the Securities and the Indenture; and
WHEREAS, NationsBank, as the holder of 100% of the outstanding capital
stock of Holdings, desires to assume, jointly and severally with Holdings, all
of the rights and obligations under the Securities and Indenture that are
required to be assumed by Holdings pursuant to Section 1001 of the Indenture;
and
WHEREAS, Section 1101 of the Indenture provides that Barnett 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 Ten of the
Indenture; and
WHEREAS, this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of each of NationsBank, Holdings and
Barnett.
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NOW, THEREFORE, NationsBank, Holdings, Barnett and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
ASSUMPTION BY SUCCESSOR CORPORATION
AND ITS PARENT ENTITY
SECTION 1.1. Assumption of the Securities. NationsBank hereby expressly
assumes, jointly and severally with Holdings, the due and punctual payment of
the principal of and interest on the Securities and the performance of every
covenant of the Indenture on the part of Barnett to be performed or observed.
SECTION 1.2. Trustee's Acceptance. The Trustee hereby accepts this
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 Supplemental Indenture by NationsBank,
Holdings, Barnett and the Trustee and (ii) the consummation of the Barnett
Merger, the Indenture shall be supplemented in accordance herewith, and this
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
Supplemental Indenture is an indenture supplemental to and in implementation of
the Indenture, and the Indenture and this Supplemental Indenture shall
henceforth be read and construed together.
SECTION 2.4. Confirmation and Preservation of Indenture. The Indenture as
supplemented by this Supplemental Indenture is in all respect confirmed and
preserved.
SECTION 2.5. Conflict with Trust Indenture Act. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any
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provision of the Trust Indenture Act ("TIA") that is required under the TIA to
be part of and govern any provision of this Supplemental Indenture, the
provision of the TIA shall control. If any provision of this 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 Supplemental Indenture, as the case may
be.
SECTION 2.6. Severability. In case any provision in this 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
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 Supplemental Indenture, etc. Nothing in this
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 Supplemental
Indenture or the Securities.
SECTION 2.10. Successors. All agreements of Holdings and NationsBank in
this Supplemental Indenture shall bind their successors. All agreements of the
Trustee in this 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 Barnett, NationsBank and Holdings,
and the Trustee assumes no responsibility for their correctness.
SECTION 2.12. Certain Duties and Responsibilities of the Trustees. In
entering into this 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.
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SECTION 2.13. Governing Law. This 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 Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture
to be duly executed as of the date first written above.
NationsBank Corporation
By: /s/ JOHN E. MACK
-----------------------------------------
Name:
Title:
NB Holdings Corporation
By: /s/ JOHN E. MACK
-----------------------------------------
Name:
Title:
Barnett Banks, Inc.
By: /s/ CHARLES E. RICE
-----------------------------------------
Name: Charles E. Rice
Title: Chairman and Chief Executive Officer
First Trust of New York, National
Association, as Trustee
By: /s/ WARD A. SOFONER
-----------------------------------------
Name: Ward A. Sofoner
Title: Vice President
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