EXHIBIT 4.39
▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
NB Holdings Corporation
NationsBank Corporation
6.90% Subordinated Notes due September 2005
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 9, 1998
Supplementing the Indenture, dated
as of March 16, 1995, between
▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. and
Chemical Bank, as Trustee
The Chase Manhattan Bank
(formerly known as Chemical Bank),
Trustee
FIRST SUPPLEMENTAL INDENTURE, dated as of January 9, 1998 (the "First
Supplemental Indenture"), among NationsBank Corporation, a North Carolina
corporation ("NationsBank"), NB Holdings Corporation, a Delaware corporation
("Holdings"), ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., a Florida corporation ("▇▇▇▇▇▇▇"), and The
Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee (the
"Trustee") under the Indenture referred to herein;
WHEREAS, ▇▇▇▇▇▇▇ and the Trustee heretofore executed and delivered an
Indenture, dated as of March 16, 1995 (the "Indenture"); and
WHEREAS, pursuant to the Indenture ▇▇▇▇▇▇▇ issued and the Trustee
authenticated and delivered $150 million aggregate principal amount of ▇▇▇▇▇▇▇'▇
6.90% Subordinated Notes Due September 2005 (the "Securities"); and
WHEREAS, NationsBank, Holdings and ▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ will merge with and into Holdings
(the "▇▇▇▇▇▇▇ Merger") on the date hereof; and
WHEREAS, Section 1001 of the Indenture provides that in the case of the
▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ 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 First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of each of NationsBank, Holdings and
▇▇▇▇▇▇▇.
-2-
NOW, THEREFORE, NationsBank, Holdings, ▇▇▇▇▇▇▇ 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 premium, if any) and interest on the Securities and the
performance of every covenant of the Indenture on the part of ▇▇▇▇▇▇▇ to be
performed or observed.
SECTION 1.2. 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, Holdings, ▇▇▇▇▇▇▇ and the Trustee and (ii) the consummation of the
▇▇▇▇▇▇▇ 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 respect 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
-3-
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 Holdings and NationsBank in
this First Supplemental Indenture shall bind their 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
Holdings, 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
-4-
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.
-5-
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
NationsBank Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------
Name:
Title:
NB Holdings Corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman and Chief Executive Officer
The Chase Manhattan Bank, as
Trustee
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇
-----------------
Name: ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
6