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NationsBank Corporation
NationsBank (DE) Corporation
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FIFTH SUPPLEMENTAL INDENTURE
Dated as of August 28, 1998
Supplementing the Indenture, dated
as of November 27, 1996, between
NationsBank Corporation and
The Bank of New York, as Trustee
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The Bank of New York,
Trustee
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FIFTH SUPPLEMENTAL INDENTURE, dated as of August 28, 1998 (the "Fifth
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 November 27, 1996 (the "Indenture"); and
WHEREAS, pursuant to the Indenture, NationsBank issued and the Trustee
authenticated and delivered one or more series of NationsBank's unsecured junior
subordinated debt securities (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 10.01 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 9.01(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 Ten of the
Indenture; and
WHEREAS, this Fifth Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of each of NationsBank (DE) and
NationsBank.
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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
SECTION 1.1. Assumption of the Securities. NationsBank (DE) hereby
expressly assumes the due and punctual payment of the principal of, premium, if
any, and interest on all of the Securities of all series in accordance with the
terms of each series, according to their tenor and the due and punctual
performance and observance of all the covenants and conditions of the Indenture
to be performed by NationsBank.
SECTION 1.2. Trustee's Acceptance. The Trustee hereby accepts this Fifth
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 Fifth 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 Fifth 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
Fifth Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Fifth Supplemental
Indenture shall henceforth be read and construed together.
SECTION 2.4. Confirmation and Preservation of Indenture. The Indenture as
supplemented by this Fifth Supplemental Indenture is in all respects confirmed
and preserved.
SECTION 2.5. Conflict with Trust Indenture Act. If any provision of this
Fifth 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 Fifth Supplemental Indenture, the
provision of the TIA shall control. If any provision of this Fifth 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 Fifth Supplemental Indenture, as the
case may be.
SECTION 2.6. Severability. In case any provision in this Fifth 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 Fifth
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 Fifth Supplemental Indenture, etc. Nothing in this
Fifth 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 Fifth
Supplemental Indenture or the Securities.
SECTION 2.10. Successors. All agreements of NationsBank (DE) in this Fifth
Supplemental Indenture shall bind its successors. All agreements of the Trustee
in this Fifth 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 Fifth Supplemental Indenture.
SECTION 2.12. Certain Duties and Responsibilities of the Trustees. In
entering into this Fifth Supplemental Indenture, the Trustee shall be entitled
to the benefit of every provision of the Indenture relating to
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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 Fifth 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 Fifth 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 Fifth Supplemental
Indenture to be duly executed as of the date first written above.
NationsBank (DE) Corporation
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
NationsBank Corporation
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Senior Vice President
The Bank of New York, as Trustee
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Agent
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