<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 13, 1998
REGISTRATION NO. 333-44263
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
--------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
AMSOUTH BANCORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 63-0591257
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
AMSOUTH-SONAT TOWER
1900 FIFTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(205) 320-7151
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
STEPHEN A. YODER, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
AMSOUTH BANCORPORATION
AMSOUTH-HARBERT PLAZA, SUITE 920
BIRMINGHAM, ALABAMA 35203
(205) 326-5319
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
WITH A COPY TO:
MITCHELL S. EITEL, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
(212) 558-4000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF +
+ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION; ISSUE DATE AUGUST 13, 1998
PROSPECTUS
$500,000,000
AMSOUTH BANCORPORATION
COMMON STOCK, PREFERRED STOCK, DEPOSITARY SHARES,
DEBT SECURITIES AND WARRANTS
-----------
AmSouth Bancorporation ("AmSouth") may offer from time to time (i) common
stock, par value $1.00 per share ("Common Stock"), (ii) one or more series of
preferred stock, without par value ("Preferred Stock"), interests in which may
be represented by depository shares ("Depositary Shares"), (iii) one or more
series of debt securities ("Debt Securities"), consisting of debentures, notes
and/or other unsecured evidences of indebtedness, which may be unsubordinated
("Senior Debt Securities") or subordinated ("Subordinated Debt Securities") to
certain other obligations of AmSouth, and (iv) warrants to purchase Debt
Securities, Preferred Stock or Common Stock ("Warrants", and together with the
Common Stock, Preferred Stock, Depositary Shares and Debt Securities,
"Securities"), at an aggregate initial offering price not to exceed
$500,000,000 (or the equivalent thereof (based on the applicable exchange rate
at the time of offering) in any other currency or currency unit designated by
AmSouth at the time of offering), at prices and on terms to be determined at
the time of sale. Securities may be offered, separately or together, in
separate series, in amounts, at prices and on terms to be set forth in the
applicable supplement or supplements to this Prospectus (each a "Prospectus
Supplement").
The applicable Prospectus Supplement will set forth with regard to the
particular Securities in respect of which this Prospectus is being delivered,
the initial public offering price and the terms of the offering thereof, and
(i) in the case of Common Stock, the number of shares; (ii) in the case of
Preferred Stock, the serial designation and the number of shares, any dividend,
liquidation, redemption, conversion, voting or other rights of such Preferred
Stock and whether interests in such Preferred Stock will be evidenced by
Depositary Shares and, if so, the identity of the Depositary (as defined
herein); (iii) in the case of Debt Securities, the title, aggregate principal
amount, denominations, currency or currency unit in which payments are to be
made, maturity, rate of interest, if any (which may be fixed or variable), or
method of calculation thereof, time of payment of any interest, terms for
redemption at the option of AmSouth or the holder, if any, terms for sinking
fund payments, if any, subordination terms, if any, conversion or exchange
rights, if any, and any other terms and conditions of such Debt Securities; and
(iv) in the case of Warrants, the duration, offering price, exercise price and
detachability of such Warrants, and any other terms and conditions of such
Warrants, as well as a description of the Debt Securities, Preferred Stock or
Common Stock issuable upon such exercise. Securities may be issued in
definitive or permanent global form.
The Common Stock is listed on the New York Stock Exchange, Inc. under the
symbol "ASO". The applicable Prospectus Supplement will contain information,
where applicable, as to any other listing on a securities exchange of the
Securities covered by such Prospectus Supplement.
AmSouth may sell Securities to or through underwriters acting as principals
for their own account or as agents, and also may sell such Securities directly
to other purchasers or through agents designated from time to time. The
applicable Prospectus Supplement will set forth the initial public offering
price, the names of any underwriters or agents, the numbers or principal
amounts, if any, to be purchased by underwriters, the compensation of such
underwriters and agents, if any, and the net proceeds to AmSouth. If AmSouth,
directly or through agents, solicits offers to purchase the Securities, AmSouth
reserves the sole right to accept and, together with its agents, to reject in
whole or in part any proposed purchase of Securities. See "PLAN OF
DISTRIBUTION".
All Debt Securities will be unsecured obligations of AmSouth. Senior Debt
Securities, when issued, will rank on a parity with all other unsecured and
unsubordinated indebtedness of AmSouth. Subordinated Debt Securities, when
issued, will be subordinated as described herein under "DESCRIPTION OF DEBT
SECURITIES--Subordination of Subordinated Debt Securities". Payment of the
principal of Subordinated Debt Securities may be accelerated only in the case
of certain events involving the bankruptcy, insolvency or reorganization of
AmSouth; there will be no right of acceleration of payment of Subordinated Debt
Securities in the case of a default in the performance of any covenant of
AmSouth, including the payment of principal or interest. See "DESCRIPTION OF
DEBT SECURITIES--Defaults". The respective indentures pursuant to which Senior
Debt Securities and Subordinated Debt Securities are to be issued will not
contain any limitation on the aggregate principal amount of the debt securities
issued thereunder.
NONE OF THE SECURITIES OFFERED HEREBY WILL BE SAVINGS ACCOUNTS, DEPOSITS OR
OTHER OBLIGATIONS OF ANY BANK OR NONBANK SUBSIDIARY OF AMSOUTH AND NONE OF THE
SECURITIES OFFERED HEREBY WILL BE INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
-----------
This Prospectus may not be used to consummate the sale of any Securities
unless accompanied by a Prospectus Supplement.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS , 1998.
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND THE
APPLICABLE PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. NEITHER
THIS PROSPECTUS NOR ANY PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
TO WHICH THEY RELATE OR ANY OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO
BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT NOR ANY SALE HEREUNDER OR THEREUNDER SHALL, UNDER ANY
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF AMSOUTH SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
CONTAINED HEREIN OR THEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
----------------
AVAILABLE INFORMATION
AmSouth is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy and information
statements and other information filed by AmSouth can be inspected and copied
at the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 and at the Commission's Regional Offices
in New York (Seven World Trade Center, 13th Floor, New York, New York 10048)
and Chicago (Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661), and copies of such materials can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549, at prescribed rates. The Commission maintains a Web site that
contains reports, proxy and information statements and other information
regarding registrants, such as AmSouth, that file electronically with the
Commission. The address of the Commission's Web site is http://www.sec.gov.
Because AmSouth's Common Stock is listed on the New York Stock Exchange, Inc.
(the "NYSE"), such reports, proxy and information statements and other
information can also be inspected at the offices of the NYSE, 20 Broad Street,
New York, New York 10005.
This Prospectus does not contain all of the information set forth in the
Registration Statement on Form S-3 of which this Prospectus is a part
(together with all amendments and exhibits thereto, the "Registration
Statement") which AmSouth has filed with the Commission under the Securities
Act of 1933, as amended (the "Securities Act"), certain portions of which have
been omitted pursuant to the rules and regulations of the Commission.
Reference to the Registration Statement is hereby made for further
information.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by AmSouth with the Commission (File No. 1-
7476) are hereby incorporated by reference:
(a) AmSouth's Annual Report on Form 10-K for the fiscal year ended December
31, 1997, and the amendment on Form 10-K/A dated August 12, 1998, filed
pursuant to Section 13(a) of the Exchange Act, except that the
information referred to in Item 402(a)(8) of Regulation S-K of the
Commission shall not be deemed incorporated by reference herein;
(b) AmSouth's Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1998, filed pursuant to Section 13(a) of the Exchange Act;
(c) AmSouth's Current Reports on Form 8-K dated January 13 and March 19,
1998, filed pursuant to Section 13(a) of the Exchange Act;
(d) The description of the Common Stock set forth in the Registration
Statement on Form 10 filed on March 12, 1973, pursuant to Section 12 of
the Exchange Act, and any amendment to that description so filed with
the Commission; and
(e) The description of the rights to purchase Series A Preferred Stock (as
defined herein) issued pursuant to the Rights Agreement (as defined
herein) set forth in the Registration Statement on Form 8-A filed on
March 12, 1998, pursuant to Section 12 of the Exchange Act, and any
amendment to that description so filed with the Commission.
2
<PAGE>
All documents filed by AmSouth pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date hereof and prior to the termination
of the offering of the Securities shall be deemed to be incorporated by
reference into this Prospectus from the date of filing of such documents,
except that the information in any such document referred to in Item 402(a)(8)
of Regulation S-K shall not be deemed incorporated by reference herein. In
addition, all documents filed by AmSouth pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of the initial Registration
Statement and prior to effectiveness of the Registration Statement shall be
deemed to be incorporated by reference into this Prospectus from the date of
filing of such documents, except that the information in any such document
referred to in Item 402(a)(8) of Regulation S-K shall not be deemed
incorporated by reference herein.
Any statement contained herein, in any Prospectus Supplement or in a
document incorporated or deemed incorporated by reference herein or therein
shall be deemed modified or superseded for purposes of the Registration
Statement, this Prospectus and such Prospectus Supplement to the extent that a
statement contained herein, in any Prospectus Supplement, or in any
subsequently filed document that also is or is deemed incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of the Registration Statement, this
Prospectus or any Prospectus Supplement.
AMSOUTH WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF THIS
PROSPECTUS IS DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH PERSON, A
COPY OF ANY OR ALL OF THE DOCUMENTS INCORPORATED BY REFERENCE HEREIN, EXCEPT
FOR ANY EXHIBITS TO SUCH DOCUMENTS THAT ARE NOT SPECIFICALLY INCORPORATED BY
REFERENCE HEREIN. WRITTEN REQUESTS SHOULD BE SENT TO: AMSOUTH BANCORPORATION,
POST OFFICE BOX 11007, BIRMINGHAM, ALABAMA 35288, ATTENTION: INVESTOR
RELATIONS DEPARTMENT. TELEPHONE REQUESTS MAY BE DIRECTED TO (205) 326-4831.
3
<PAGE>
AMSOUTH
GENERAL
AmSouth is a regional bank holding company headquartered in Birmingham,
Alabama, with banking operations located in Alabama, Florida, Tennessee and
Georgia. At March 31, 1998, AmSouth had total consolidated assets of
approximately $19.4 billion and total consolidated shareholders' equity of
approximately $1.4 billion. Through its subsidiaries, AmSouth offers a broad
range of banking and bank-related services.
At the close of business on June 25, 1997, AmSouth Bank of Alabama, AmSouth
Bank of Florida, AmSouth Bank of Tennessee, AmSouth Bank of Georgia and
AmSouth Bank of Walker County merged into a single banking association named
AmSouth Bank. AmSouth Bank (the "Bank") is a banking association organized
under the laws of the State of Alabama, with its principal office in
Birmingham, Alabama, and is a wholly owned subsidiary of AmSouth. The Bank
had, as of March 31, 1998, total consolidated assets of $19.4 billion, total
consolidated deposits of $13.0 billion and total consolidated equity capital
of $1.7 billion. As of March 31, 1998, the assets of the Bank constituted
virtually all of the assets of AmSouth.
The Bank offers a wide range of consumer and commercial banking and trust
services to businesses and individuals through approximately 275 banking
offices located in Alabama, Florida, Tennessee and Georgia. The Consumer
Banking Group of the Bank provides a wide variety of transaction, credit and
financial services to meet the needs of its retail customer base. The Bank's
Commercial Banking Group offers a variety of products and services, including
commercial lending, international banking and cash management sales and
operations. The Bank operates a network of over 600 automated teller machines
that are linked with shared automated tellers in all 50 states. The Capital
Management Group of the Bank offers a wide array of trust services, including
estate and trust planning, investment management for individuals and
corporations, land and natural resources management and employee benefit
administration.
The Bank's subsidiaries include AmSouth Leasing Corporation, a specialized
lender providing equipment leasing, AmSouth Investment Services, Inc., a
registered broker-dealer that provides securities brokerage services, AmSouth
Finance Corporation, which buys instalment contracts from automobile and boat
dealers, and AmSouth Capital Corporation, which solicits loans for the Bank
through an office in New York. The Bank also has equity investments in
investment management firms called Rockhaven Asset Management, LLC, Sawgrass
Asset Management, LLC, and Oakbrook Investments, LLC.
AmSouth continually evaluates business combination and acquisition
opportunities and sometimes conducts due diligence activities in connection
with them. As a result, business combination and acquisition discussions and,
in some cases, negotiations may take place, and transactions involving cash,
debt or equity securities may be expected. Any future business combination or
series of business combinations that AmSouth might undertake may be material,
in terms of assets acquired or liabilities assumed, to AmSouth's financial
condition. Recent business combinations in the banking industry have typically
involved the payment of a premium over book and market values. This practice
may result in dilution of book value and net income per share for the
acquirers.
AmSouth is a legal entity separate and distinct from its subsidiaries. There
are various legal limitations governing the extent to which AmSouth's banking
subsidiaries may extend credit, pay dividends or otherwise supply funds to, or
engage in transactions with, AmSouth or certain of its other subsidiaries. The
rights of AmSouth to participate in any distribution of assets of any
subsidiary upon its dissolution, winding-up, liquidation or reorganization or
otherwise (and thus the ability of the holders of Securities to benefit
indirectly from such distribution) would be subject to the prior claims of
creditors of that subsidiary, except to the extent that AmSouth may itself be
a creditor of that subsidiary and its claims are recognized. Claims on the
Bank by creditors other than AmSouth include substantial obligations with
respect to deposit liabilities and federal funds purchased, securities sold
under repurchase agreements, other short-term borrowing, and various other
financial obligations.
AmSouth was incorporated under the laws of the State of Delaware in 1970.
Its principal executive office is located at AmSouth-Sonat Tower, 1900 Fifth
Avenue North, Birmingham, Alabama 35203. Its telephone number is (205) 320-
7151.
4
<PAGE>
CONSOLIDATED EARNINGS RATIOS
The following table sets forth certain information regarding AmSouth's
consolidated ratios of earnings to fixed charges and earnings to combined
fixed charges and preferred dividends.
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, 1998 YEAR ENDED DECEMBER 31,
------------------ ---------------------------
<S> <C> <C> <C> <C> <C> <C>
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
CONSOLIDATED RATIOS OF
EARNINGS TO
FIXED CHARGES
Excluding interest on de-
posits.................. 2.50x 2.51x 2.41x 2.93x 2.52x 4.09x
Including interest on de-
posits.................. 1.51 1.49 1.40 1.40 1.39 1.62
CONSOLIDATED RATIOS OF
EARNINGS TO COMBINED
FIXED CHARGES AND
PREFERRED DIVIDENDS
Excluding interest on de-
posits.................. 2.50x 2.51x 2.41x 2.93x 2.52x 4.09x
Including interest on de-
posits.................. 1.51 1.49 1.40 1.40 1.39 1.62
</TABLE>
For purposes of computing these ratios, earnings represent income from
continuing operations before extraordinary items plus income taxes and fixed
charges. Fixed charges, excluding interest on deposits, represent interest
expense (other than interest on deposits), one-third (the proportion deemed
representative of the interest factor) of rent expense and all amortization of
debt issuance costs. Fixed charges, including interest on deposits, represent
all interest expense, one-third (the proportion deemed representative of the
interest factor) of rent expense and all amortization of debt issuance costs.
For purposes of calculating the consolidated ratios of earnings to combined
fixed charges and preferred dividends, fixed charges would then be combined
with preferred stock dividend requirements, adjusted to a pretax basis, on
outstanding preferred stock of AmSouth. However, no preferred stock of AmSouth
is outstanding as of the date of this Prospectus.
USE OF PROCEEDS
AmSouth currently intends to use the net proceeds from the sale of any
Securities for general corporate purposes, which may include the reduction of
short-term indebtedness, the repurchase of Common Stock and other equity
securities, investments at the holding company level, investments in, or
extensions of credit to, AmSouth's banking and other subsidiaries and other
banks and companies engaged in other financial service activities, possible
acquisitions and such other purposes as may be stated in the applicable
Prospectus Supplement. Pending such use, the net proceeds may be temporarily
invested. The precise amounts and timing of the application of proceeds will
depend upon the funding requirements of AmSouth and its subsidiaries at the
time of issuance and the availability of other funds. Except as may be
described in the applicable Prospectus Supplement, specific allocations of the
proceeds to such purposes will not have been made at the date of such
Prospectus Supplement.
Based upon the financial needs of AmSouth and its subsidiaries, AmSouth may
also engage in other financings of a character and amount to be determined as
the need arises.
5
<PAGE>
CERTAIN REGULATORY CONSIDERATIONS
As a bank holding company, AmSouth is subject to the regulation and
supervision of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board") under the Bank Holding Company Act of 1956, as
amended (the "BHCA"), and to the BHCA's examination and reporting
requirements. Similarly, the Bank is subject to regulation and supervision by
applicable federal and state banking agencies, primarily the Federal Reserve
Board, the Federal Deposit Insurance Corporation (the "FDIC") and the Banking
Department of the State of Alabama, which chartered the Bank. For a discussion
of certain of the material elements of the regulatory framework applicable to
bank holding companies and their subsidiaries and certain specific information
relevant to AmSouth and its subsidiaries, reference is made to AmSouth's
Annual Report on Form 10-K and Quarterly Report on Form 10-Q, which are
incorporated by reference into this Prospectus. This regulatory framework is
intended primarily for the protection of depositors and the federal deposit
insurance funds and not for the protection of holders of AmSouth's securities.
AmSouth's earnings are also affected by general economic conditions,
management policies and the legislative and governmental actions of various
regulatory authorities, including the Federal Reserve Board, the FDIC and the
Banking Department of the State of Alabama. In addition, there are numerous
governmental requirements and regulations that affect AmSouth's activities. A
change in applicable statutes, regulations or regulatory policy may have a
material effect on AmSouth's business.
DESCRIPTION OF AMSOUTH'S CAPITAL SECURITIES
The following summary of certain provisions of AmSouth's Restated
Certificate of Incorporation, as amended (the "Certificate of Incorporation"),
AmSouth's By-laws (the "By-laws") and the Rights Agreement does not purport to
be complete and is qualified in its entirety by reference to such instruments,
each of which is an exhibit to the Registration Statement of which this
Prospectus is a part.
AUTHORIZED CAPITAL STOCK
The authorized capital stock of AmSouth currently consists of 2,000,000
shares of Preferred Stock, without par value, and 200,000,000 shares of Common
Stock, par value $1.00 per share. Each share of Common Stock has attached to
it one right (a "Right") issued pursuant to a Stockholder Protection Rights
Agreement, dated as of December 18, 1997 (as amended from time to time, the
"Rights Agreement"), between AmSouth and the Bank, as Rights Agent. Each Right
entitles the holder of a share of AmSouth's Common Stock to acquire one one-
hundredth of a share of Series A Preferred Stock of AmSouth, as described
under "--Rights Agreement" below.
On March 19, 1998, the Board of Directors of AmSouth approved a three-for-
two Common Stock split in the form of a 50% Common Stock dividend. The Common
Stock dividend was paid on April 30, 1998, to shareholders of record as of
April 3, 1998.
As of March 31, 1998, on a post-split basis, approximately 134,996,000
shares of Common Stock were issued and 121,117,000 shares were outstanding,
and approximately 9,999,000 shares of Common Stock were reserved for issuance
under various benefit plans and AmSouth's dividend reinvestment plan. No
Preferred Stock was outstanding on that date.
The Common Stock and the Preferred Stock are more fully described under
"DESCRIPTION OF COMMON STOCK" and "DESCRIPTION OF PREFERRED STOCK" below.
CERTAIN PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS
Written Consent. As permitted by Delaware law, the Certificate of
Incorporation prohibits the stockholders from taking any action that either is
required to be taken or may be taken at an annual or special meeting without
6
<PAGE>
such a meeting, whether by written consent or otherwise. This provision of the
Certificate of Incorporation may not be amended, altered or repealed (and
AmSouth's By-laws may not be amended in any manner inconsistent with such
provision) without the affirmative vote of the holders of 67% of the
outstanding voting stock.
Business Combinations. The Certificate of Incorporation provides that any
Business Combination (as defined below) involving AmSouth and a person that
beneficially owns more than 10% of the Common Stock (an "Interested
Stockholder") must be approved by (i) the holders of not less than 80% of the
outstanding shares of AmSouth's voting stock and (ii) the holders of not less
than 67% of such voting stock held by stockholders other than the Interested
Stockholder. These special voting requirements do not apply, however, if
either (i) a majority of the Continuing Directors (as defined in the
Certificate of Incorporation) of AmSouth has approved the Business Combination
or the Interested Stockholder's becoming an Interested Stockholder or (ii) the
terms of a proposed Business Combination satisfy certain minimum price and
other standards stated in the Certificate of Incorporation. For purposes of
these provisions, a "Business Combination" is defined to include (i) any
merger or consolidation of AmSouth with or into an Interested Stockholder,
(ii) the sale by AmSouth of a Substantial Part (as defined in the Certificate
of Incorporation) of its assets to an Interested Stockholder, (iii) any merger
or consolidation of an Interested Stockholder into AmSouth, (iv) the
acquisition by AmSouth of a Substantial Part of the assets of an Interested
Stockholder, (v) the issuance by AmSouth of any of its securities to an
Interested Stockholder and (vi) any recapitalization that would increase the
voting power of an Interested Stockholder. The Business Combination provision
of the Certificate of Incorporation may not be amended, altered or repealed
except by the same supermajority vote required to approve a Business
Combination.
Classified Board. The Certificate of Incorporation provides for a Board of
Directors divided into three classes of directors with each class elected for
a three-year term and only one class standing for election each year. The
provisions of the Certificate of Incorporation relating to the structure of
the Board of Directors may not be amended, altered or repealed without the
affirmative vote of 80% of the outstanding voting stock of AmSouth.
Effect of Provisions on Board Composition or Certain Transactions. The
provisions of the Certificate of Incorporation and the By-laws described
above, as well as the Rights and the Rights Agreement, may have a significant
effect on the ability of the stockholders of AmSouth to change the composition
of an incumbent Board of Directors or to benefit from certain transactions
that are opposed by the Board of Directors.
RIGHTS AGREEMENT
Each share of Common Stock currently has attached to it one Right issued
pursuant to the Rights Agreement. Each Right entitles its registered holder to
purchase one one-hundredth of a share of Series A Preferred Stock, without par
value (the "Series A Preferred Stock"), for an exercise price, initially set
at $200.00, subject to adjustment (the "Exercise Price"), after the close of
business on the earlier of (i) the tenth day after commencement of a tender or
exchange offer that, if consummated, would result in a person's (together with
its affiliates and associates) becoming the beneficial owner of 15% or more of
the outstanding shares of Common Stock (an "Acquiring Person") and (ii) the
tenth day after the first date (the "Flip-in Date") of public announcement by
AmSouth that a person has become an Acquiring Person. The time described in
the foregoing sentence is referred to as the "Separation Time". After giving
effect to adjustments prior to the date hereof, the Exercise Price is $133.33.
The Rights will not be exercisable until the business day following the
Separation Time. The Rights outstanding under the Rights Agreement are
scheduled to expire on the earlier of (a) an exchange by AmSouth, (b) the
close of business on March 13, 2008, (c) the date upon which the Rights are
redeemed and (d) immediately prior to certain business combination
transactions entered into by AmSouth before the date of public announcement by
AmSouth that a person has become an Acquiring Person (the "Expiration Time").
The Board of Directors of AmSouth may, at its option, at any time prior to the
Flip-in Date, redeem all the Rights at a price that was initially set at $0.01
per Right and that, after giving effect to adjustments prior to the date
hereof, is now $0.0067 per Right.
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If a Flip-in Date occurs, each Right will constitute the right to purchase
from AmSouth shares of Common Stock or, at the option of the Board of
Directors, shares of Series A Preferred Stock (at a ratio of one one-hundredth
of a share of Series A Preferred Stock to each share of Common Stock so
issuable) having an aggregate market price equal to twice the Exercise Price
for an amount in cash equal to the then-current Exercise Price. In addition,
the Board of Directors of AmSouth may, at its option, at any time after a
Flip-in Date and before an Acquiring Person becomes the beneficial owner of
more than 50% of the outstanding shares of Common Stock, elect to exchange all
the then outstanding Rights for shares of Common Stock at an exchange ratio of
one share of Common Stock or one one-hundredth of a share of Series A
Preferred Stock, as the case may be, per Right. However, upon the occurrence
of a Flip-in Date, all Rights beneficially owned by the Acquiring Person or
any affiliate or associate thereof, or by any transferees of any of the
foregoing, will become void.
Until the Expiration Time, AmSouth may not consolidate or merge, or engage
in certain other transactions, if (at the time thereof or at the time AmSouth
agrees to enter into such transaction) an Acquiring Person controls the Board
of Directors of AmSouth, unless AmSouth enters into a supplemental agreement
with the Acquiring Person providing that, upon the consummation or occurrence
of such transaction, (i) each Right will constitute the right to purchase the
qualifying capital stock of the Acquiring Person (or its parent, if the
Acquiring Person is a subsidiary of another person) having an aggregate market
price equal to twice the then-current Exercise Price for an amount in cash
equal to the then-current Exercise Price, and (ii) the Acquiring Person will
be liable for all of the obligations of AmSouth under the Rights Agreement. To
constitute qualifying capital stock for this purpose, the securities issuable
by the Acquiring Person or its parent upon exercise of the Rights must
constitute the capital stock (or similar equity interests) of the Acquiring
Person (or its parent) with the greatest voting power in respect of the
election of directors (or similar persons) of the Acquiring Person (or its
parent).
The terms of the Rights Agreement and the Rights outstanding thereunder
remain subject to the right of the AmSouth Board of Directors to amend the
Rights Agreement in accordance with its terms.
The Rights will not prevent a takeover of AmSouth. The Rights may, however,
have certain anti-takeover effects. The Rights may cause substantial dilution
to a person or group that acquires 15% or more of the outstanding Common Stock
unless they are first redeemed by the Board of Directors of AmSouth.
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DESCRIPTION OF COMMON STOCK
The following summary description of the Common Stock, the Rights and the
Rights Agreement does not purport to be complete and is qualified in its
entirety by reference to the Certificate of Incorporation, the By-laws and the
Rights Agreement, which are exhibits to the Registration Statement of which
this Prospectus is a part.
THE COMMON STOCK
The holders of Common Stock are entitled to receive, ratably, such dividends
as may be declared by AmSouth's Board of Directors from funds legally
available therefor, except that if any shares of Preferred Stock are
outstanding at the time, the payment of dividends or other distributions on
Common Stock (including purchases of Common Stock) may be subject to the
declaration and payment of full cumulative dividends, and the absence of
arrearages in any mandatory sinking fund, on such outstanding shares of
Preferred Stock. Under Delaware law, AmSouth may pay dividends out of surplus
or, if no such surplus exists, net profits for the fiscal year in which the
dividends are declared and/or for the preceding fiscal year. AmSouth's Board
of Directors currently intends to maintain its present policy of paying
regular quarterly cash dividends on outstanding shares of Common Stock;
however, the declaration and amount of future dividends will depend on
circumstances existing at the time, including AmSouth's earnings, financial
condition and capital requirements. See "CERTAIN REGULATORY CONSIDERATIONS"
above.
The holders of outstanding shares of Common Stock are entitled to cast one
vote for each share on all matters presented to stockholders, including
elections of directors. There is no cumulative voting in the election of
directors, which means that the affirmative vote of the holders of a plurality
of the shares of Common Stock present at a meeting where a quorum exists will
be sufficient to elect all of the directors then standing for election. The
Certificate of Incorporation contains certain provisions that may be amended
only by a vote of more than a majority of the shares of Common Stock, that may
have the effect of delaying, deferring or preventing a change in control of
AmSouth and that would operate only with respect to an extraordinary corporate
transaction involving AmSouth or one of its subsidiaries, as described under
"DESCRIPTION OF AMSOUTH'S CAPITAL SECURITIES--Certain Provisions of the
Certificate of Incorporation and By-laws" and "DESCRIPTION OF AMSOUTH'S
CAPITAL SECURITIES--Rights Agreement" above.
The holders of Common Stock do not have any conversion, redemption or
preemptive rights to subscribe to any securities of AmSouth. Upon any
dissolution, liquidation or winding up of AmSouth resulting in a distribution
of assets to the stockholders, the holders of shares of Common Stock are
entitled to receive such assets ratably according to their respective number
of shares after payment of all liabilities and obligations of AmSouth and
satisfaction of the liquidation preferences of any shares of Preferred Stock
at the time outstanding.
All shares of Common Stock will have equal dividend, distribution,
liquidation and other rights, and will have no preference, appraisal or
exchange rights. All outstanding shares of Common Stock are, and upon issuance
the shares offered hereby will be, fully paid and non-assessable.
The Bank is the transfer agent and registrar for the Common Stock. AmSouth's
Common Stock is listed on the NYSE under the symbol "ASO".
THE RIGHTS
Each share of Common Stock is accompanied by one Right, as described under
"DESCRIPTION OF AMSOUTH'S CAPITAL SECURITIES--Rights Agreement" above.
DESCRIPTION OF PREFERRED STOCK
The following summary description of the Preferred Stock does not purport to
be complete and is qualified in its entirety by reference to the Certificate
of Incorporation and, with respect to each series of Preferred Stock, the
certificate of designations relating to such series (each, a "Certificate of
Designations"), which will be incorporated by reference in the Registration
Statement of which this Prospectus is a part at or prior to the time of
issuance of shares of such series.
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Furthermore, the following summary description of the Preferred Stock
relates to certain terms and conditions applicable to the Preferred Stock as a
class. The particular terms of any series of Preferred Stock will be described
in the applicable Prospectus Supplement. If so indicated in such Prospectus
Supplement, the terms of any such series may differ from the terms set forth
below.
GENERAL
Under the Certificate of Incorporation, the Preferred Stock may be issued
from time to time in one or more series, without stockholder approval, when
authorized by the Board of Directors. Subject to limitations prescribed by
law, the Board of Directors is authorized to determine the voting powers (if
any), designation, preferences and relative, participating, optional or other
rights, if any, and the qualifications, limitations or restrictions thereof,
if any, including specifically, but not limited to, the dividend rights,
conversion rights, redemption rights and liquidation preferences, if any, of
any then unissued series of Preferred Stock (or the entire class of Preferred
Stock, if none of such shares have been issued), the number of shares
constituting any such series and the terms and conditions of the issuance
thereof. Thus, the Board of Directors (or a committee thereof), without
stockholder approval, could authorize the issuance of Preferred Stock with
voting, conversion and other rights that could adversely affect the voting
power and other rights of holders of Common Stock or other outstanding series
of Preferred Stock.
Each Series of Preferred Stock will have the dividend, liquidation,
redemption and voting rights described below unless otherwise described in the
applicable Prospectus Supplement. The applicable Prospectus Supplement will
describe the following terms of the series of Preferred Stock in respect of
which this Prospectus is being delivered: (1) the title of such series of
Preferred Stock and the number of shares offered; (2) the amount of the
liquidation preference per share (or the method of calculation of such
amount); (3) the initial public offering price at which such Preferred Stock
will be issued; (4) the dividend rate (or the method of calculation of such
rate) applicable to such series, the dates on which dividends, if any, will be
payable, whether such dividends are cumulative or non-cumulative, and the
dates from which dividends will commence to cumulate, if any; (5) any
redemption or sinking fund provisions; (6) any conversion or exchange rights;
(7) any additional voting, dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, qualifications, limitations and
restrictions; (8) any listing of such series of Preferred Stock on any
securities exchange; (9) the relative ranking and preferences of such series
of Preferred Stock as to dividend rights and rights upon any liquidation,
dissolution or winding up of the affairs of AmSouth; and (10) any other
material terms of such series of Preferred Stock.
No shares of Preferred Stock are currently outstanding. Shares of Preferred
Stock, upon issuance against full payment of the purchase price therefor, will
be fully paid and nonassessable. Neither the par value nor the liquidation
preference of any series of Preferred Stock is indicative of the price at
which shares of such series of Preferred Stock will actually trade on or after
the date of issuance.
RANK
Each series of Preferred Stock will, with respect to dividend rights and
rights upon liquidation, dissolution or winding up of AmSouth, rank prior to
AmSouth's Common Stock and to all other classes and series of equity
securities of AmSouth now or hereafter authorized, issued or outstanding (the
Common Stock and such other classes and series of equity securities,
collectively, being referred to herein as "Junior Stock"), other than any
classes or series of equity securities of AmSouth that by their terms
specifically provide for a ranking on a parity with ("Parity Stock") or senior
to ("Senior Stock") such series of Preferred Stock as to dividend rights or
rights upon liquidation, dissolution or winding up of AmSouth. All series of
Preferred Stock will be junior to the Debt Securities and all other
indebtedness of AmSouth. Each series of Preferred Stock will be subject to the
creation of Senior Stock, Parity Stock and Junior Stock to the extent not
expressly prohibited by the Certificate of Incorporation (including the
applicable Certificate of Designations). Unless otherwise specified in the
applicable Prospectus Supplement, each series of Preferred Stock will rank on
a parity with each other series of Preferred Stock.
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DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive, when,
as and if declared by the Board of Directors out of funds of AmSouth legally
available for payment, cash dividends, payable at such date or dates and at
such rate or rates per share as described in the applicable Prospectus
Supplement. Such rate or rates may be fixed or variable. Each declared
dividend will be payable to holders of record as they appear at the close of
business on the stock books of AmSouth on such record dates, not more than 60
calendar days preceding the payment date therefor, as determined by the Board
of Directors (each of such dates, a "Record Date").
Such dividends may be cumulative or noncumulative, as described in the
applicable Prospectus Supplement. If dividends on a series of Preferred Stock
are noncumulative and if the Board of Directors fails to declare a dividend in
respect of a dividend period with respect to such series, then holders of such
Preferred Stock will have no right to receive a dividend in respect of such
dividend period, and AmSouth will have no obligation to pay the dividend for
such period, whether or not dividends are declared with respect to any future
dividend payment dates. If dividends on a series of Preferred Stock are
cumulative, the dividends on such shares will accumulate from and after the
date set forth in the applicable Prospectus Supplement.
No dividends may be declared or paid or set apart for payment on preferred
stock of AmSouth of any series ranking, as to dividends, on a parity with or
junior to the series of Preferred Stock offered by the applicable Prospectus
Supplement for any period unless full dividends for the immediately preceding
dividend period on such series of Preferred Stock (including any accumulation
in respect of unpaid dividends for prior dividend periods, if dividends on
such Preferred Stock are cumulative) have been or contemporaneously are
declared and paid or declared and a sum sufficient for the payment thereof is
set apart for such payment. When dividends are not so paid in full (or a sum
sufficient for such full payment is not so set apart) upon such series of
Preferred Stock and any other series of preferred stock of AmSouth ranking on
a parity, as to dividend rights, with the Preferred Stock of such series,
dividends upon such series of Preferred Stock and dividends on such other
series of preferred stock ranking on a parity with such series of Preferred
Stock will be declared pro rata so that the amount of dividends declared per
share on such series of Preferred Stock and such other series of preferred
stock ranking on a parity with such series of Preferred Stock will in all
cases bear to each other the same ratio that accrued dividends for the then-
current dividend period per share on such series of Preferred Stock (including
any accumulation in respect of unpaid dividends for prior dividend periods, if
dividends on such series of Preferred Stock are cumulative) and accumulated
dividends, including required or permitted accumulations, if any, on shares of
such other series of preferred stock, bear to each other. No interest, or sum
of money in lieu of interest, will be payable in respect of any dividend
payment on such series of Preferred Stock that may be in arrears. Unless full
dividends on the series of Preferred Stock offered by the applicable
Prospectus Supplement have been declared and paid or set apart for payment for
the immediately preceding dividend period (including any accumulation in
respect of unpaid dividends for prior dividend periods, if dividends on such
series of Preferred Stock are cumulative), (a) no cash dividend or
distribution (other than in shares of Junior Stock) may be declared, set aside
or paid on Junior Stock, (b) AmSouth may not, directly or indirectly,
repurchase, redeem or otherwise acquire any shares of Junior Stock (or pay any
monies into a sinking fund for the redemption of any such shares) except by
conversion into or exchange for Junior Stock, and (c) AmSouth may not,
directly or indirectly, repurchase, redeem or otherwise acquire any series of
Preferred Stock ranking on parity as to dividends (or pay any monies into a
sinking fund for the redemption of any shares of any such stock) otherwise
than pursuant to pro rata offers to purchase or a concurrent redemption of
all, or a pro rata portion, of the outstanding Preferred Stock and any other
series of preferred stock of AmSouth ranking on parity as to dividends (except
by conversion into or exchange for Junior Stock).
Any dividend payment made on a series of Preferred Stock will first be
credited against the earliest accrued but unpaid dividend due with respect to
shares of such series that remains payable.
REDEMPTION
If AmSouth elects to redeem any or all of the Preferred Stock of any series
then outstanding, it must mail notice thereof to the holders of record of the
Preferred Stock of such series not less than 30 or more than 60 days
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prior to the date fixed for redemption (the "Redemption Date"). However,
failure by AmSouth to mail such notice to any holder of share of a series of
Preferred Stock or any defect therein shall not affect the validity of the
redemption procedure with respect to any other shares of such series. The
Preferred Stock of each series will be redeemed at a price (the "Redemption
Price") set forth in the Certificate of Designations for such series of
Preferred Stock. In the event of such redemption, holders of Preferred Stock
of such series will also receive a distribution of all accrued dividends that
remain unpaid as of the Redemption Date.
LIQUIDATION
In the event of a voluntary or involuntary liquidation, dissolution or
winding up of the affairs of AmSouth, the holders of a series of Preferred
Stock will be entitled, subject to the rights of creditors, but before any
distribution or payment to the holders of Common Stock or any other Junior
Stock, to receive a liquidating distribution in the amount of the liquidation
preference per share as set forth in the applicable Prospectus Supplement,
plus accrued and unpaid dividends for the then-current dividend period
(including any accumulation in respect of unpaid dividends for prior dividend
periods, if dividends on such series of Preferred Stock are cumulative). If
the amounts available for distribution upon liquidation, dissolution or
winding up of the affairs of AmSouth are not sufficient to satisfy the full
liquidation rights of all the outstanding Preferred Stock of any series and
all Parity Stock, then the holders of each series of such stock will share
ratably in any such distribution of assets in proportion to the full
respective preferential amount (which may include accumulated dividends) to
which they are entitled. After payment of the full amount of the applicable
liquidation preference, the holders of Preferred Stock will not be entitled to
any further participation in any distribution of assets by AmSouth.
VOTING
The terms, if any, on which Preferred Stock of any series may be entitled to
vote will be set forth in the applicable Prospectus Supplement.
Under regulations adopted by the Federal Reserve Board, if the holders of
any series of Preferred Stock become entitled to vote for the election of
directors (for example, because dividends on such series are in arrears), such
series may then be deemed a "class of voting securities," and a holder of 25%
or more of such series (or a holder of 5% or more if it otherwise exercises a
"controlling influence" over AmSouth) may then be subject to regulation as a
bank holding company in accordance with the BHCA. In addition, at such time
(i) any bank holding company may be required to obtain the approval of the
Federal Reserve Board under the BHCA, and any foreign bank, or company that
controls a foreign bank, that has certain types of U.S. banking operations may
be required to obtain the approval of the Federal Reserve Board under the
International Banking Act of 1978, as amended, to acquire or retain 5% or more
of such series of Preferred Stock and (ii) any person other than a bank
holding company may be required to obtain the approval of the Federal Reserve
Board under the Change in Bank Control Act to acquire or retain 10% or more of
such series of Preferred Stock.
CONVERSION
The terms, if any, on which Preferred Stock of any series may be converted
into another class or series of securities of AmSouth will be set forth in the
applicable Prospectus Supplement.
NO OTHER RIGHTS
The shares of a series of Preferred Stock will not have any preferences,
voting powers or relative, participating, optional or other special rights
except as set forth above or in the applicable Prospectus Supplement, the
Certificate of Incorporation (including the applicable Certificate of
Designations) or as otherwise required by law. Except as set forth above and
in the applicable Prospectus Supplement, the holders of Preferred Stock will
not have any conversion, redemption or preemptive rights to subscribe to any
securities of AmSouth.
TITLE
AmSouth, any transfer agent and registrar for any series of Preferred Stock,
and any agent of AmSouth or the applicable transfer agent and registrar may
treat the registered owner of any Preferred Stock as the absolute
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owner thereof (whether or not any payment in respect of such Preferred Stock
is overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. See "GLOBAL SECURITIES" below.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Preferred Stock will be
described in the applicable Prospectus Supplement.
DESCRIPTION OF DEPOSITARY SHARES
The following summary description of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is qualified
in its entirety by reference to the Deposit Agreement (as defined below) and
Depositary Receipts with respect to the Depositary Shares representing any
particular series of Preferred Stock, the forms of which will be incorporated
by reference into the Registration Statement of which this Prospectus is a
part at or prior to the time of the issuance of such Depositary Shares.
Furthermore, the following summary description of the Depositary Shares and
Depositary Receipts relates to certain terms and conditions applicable to such
Securities generally. The particular terms of any series of Depositary Shares
will be described in the applicable Prospectus Supplement. If so indicated in
such Prospectus Supplement, the terms of any such series may differ from the
terms set forth below.
GENERAL
AmSouth may, at its option, elect to offer fractional interests in shares of
Preferred Stock, rather than whole shares of Preferred Stock. If AmSouth
elects to do so, AmSouth will provide for the issuance by a Depositary (as
described below) to the public of receipts for Depositary Shares, each of
which will represent a fractional interest (to be set forth in the applicable
Prospectus Supplement) of a share of Preferred Stock.
The shares of any series of the Preferred Stock underlying any Depositary
Shares will be deposited under a separate Deposit Agreement (each, a "Deposit
Agreement") between AmSouth and a bank or trust company selected by AmSouth
with respect to such series, having its principal office in the United States
and having a combined capital and surplus of at least $50,000,000 (with
respect to such series, the "Depositary"). The Prospectus Supplement relating
to a series of Depositary Shares will set forth the name and address of the
Depositary. Subject to the terms of the applicable Deposit Agreement, each
owner of a Depositary Share generally will be entitled, in proportion to the
applicable fractional interest in a share of the Preferred Stock underlying
such Depositary Share, to all the rights and preferences of such Preferred
Stock (including dividend, voting, redemption, conversion and liquidation
rights).
Depositary Shares of any series will be evidenced by depositary receipts
issued pursuant to the applicable Deposit Agreement (the "Depositary
Receipts").
Pending the preparation of definitive engraved Depositary Receipts for any
series, the applicable Depositary may, upon AmSouth's written order, issue
temporary Depositary Receipts substantially identical to (and entitling the
holders thereof to all the rights pertaining to) the definitive Depositary
Receipts of such series but not in definitive form. Definitive Depositary
Receipts will be prepared without unreasonable delay, and the temporary
Depositary Receipts will be exchangeable for definitive Depositary Receipts of
such series at AmSouth's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received by the Depositary in respect of the Preferred Stock of
the applicable series to the record holders of the Depositary Shares relating
to such series of Preferred Stock pro rata in proportion to the numbers of
such Depositary Shares owned by such
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holders on the relevant record date. The Depositary will distribute only such
amount, however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so distributed
will be added to and treated as part of the next sum received by the
Depositary for distribution to record holders of such Depositary Shares.
In the event of a distribution in respect of the applicable series of
Preferred Stock other than in cash, the Depositary will distribute property
received by it to the record holders of Depositary Shares entitled thereto,
unless the Depositary determines that it is not feasible to make such
distribution, in which case the Depositary may, with AmSouth's approval, sell
such property and distribute the net proceeds from such sale to such holders.
Each Deposit Agreement will also contain provisions relating to the manner
in which any subscription or similar rights offered by AmSouth to holders of
the Preferred Stock of the applicable series will be made available to holders
of Depositary Shares. In all such cases where subscription or similar rights
are offered to holders of Depositary Shares, the Depositary, with the approval
of AmSouth, will cause such rights to be distributed unless, in the
Depositary's opinion, such distribution is not lawful or feasible, or the
holders of the Depositary Shares instruct the Depositary to refrain from their
distribution.
WITHDRAWAL OF STOCK
Upon surrender of Depositary Receipts of any series at the applicable
Depositary's office or at such other office as such Depositary may designate
(unless the related Depositary Shares have previously been called for
redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to delivery at such office to or upon such holder's order, of the
number of whole shares of the related series of Preferred Stock and any money
or other property represented by such Depositary Shares. Holders of Depositary
Shares will be entitled to receive whole shares of the related series of
Preferred Stock on the basis set forth in the applicable Prospectus
Supplement, but holders of such whole shares of such Preferred Stock will not
thereafter be entitled to receive Depositary Shares in exchange therefor. If
the Depositary Receipts delivered by the holder evidence a number of
Depositary Shares relating to other than a number of whole shares of Preferred
Stock, the Depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such the number of Depositary Shares in excess
of the number of whole shares evidenced thereby.
REDEMPTION OF DEPOSITARY SHARES
If AmSouth elects to redeem any or all of the series of Preferred Stock
relating to Depositary Shares of a series, it must mail notice thereof to the
applicable Depositary not less than 40 or more than 70 days prior to the
Redemption Date for such Preferred Stock. The Depositary, in turn, must mail
notice of such redemption to the holders of such series of Depositary Shares
not less than 30 or more than 60 days prior to such Redemption Date.
Depositary Shares will be redeemed by the Depositary at the Redemption Price
set forth in the Certificate of Designations for the applicable series of
Preferred Stock, multiplied by the applicable fraction. In the event of such
redemption, holders of Depositary Shares will also receive a distribution of
all accumulated dividends that remain unpaid as of the Redemption Date.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock of any series are entitled to vote, the Depositary with respect to any
related series of Depositary Shares will mail the information contained in
such notice of meeting to the record holders of such Depositary Shares. Each
record holder of such Depositary Shares on the record date for such notice
(which will be the same date as the record date for the notice in respect of
the related Preferred Stock) will be entitled to instruct the Depositary as to
the exercise of the voting rights pertaining to the number of shares of
Preferred Stock underlying such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the number of shares of
Preferred Stock underlying such Depositary Shares in accordance with such
instructions, and AmSouth will agree to take all action that may be deemed
necessary by the Depositary in order to enable the Depositary to do so. To the
extent the Depositary does not receive specific instructions from the holders
of Depositary Shares relating to such Preferred Stock, it will vote shares of
Preferred Stock in accordance with AmSouth's recommendation, unless otherwise
indicated in the applicable Prospectus Supplement.
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AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between AmSouth and the Depositary. However, any amendment that materially and
adversely alters the rights of the existing holders of Depositary Shares will
not be effective unless such amendment has been approved by the record holders
of at least a majority of the Depositary Shares then outstanding. A Deposit
Agreement may be terminated by AmSouth or the Depositary only if (i) no
Depositary Shares remain outstanding or (ii) there has been a final
distribution in respect of the Preferred Stock of the applicable series in
connection with any liquidation, dissolution or winding up of AmSouth and such
distribution has been distributed to the holders of the related Depositary
Shares.
CHARGES OF DEPOSITARY
AmSouth will pay all transfer and other taxes and governmental charges
arising solely from the existence of any depositary arrangements. AmSouth will
pay all charges of each Depositary in connection with the initial deposit of
the Preferred Stock of any series and any redemption of such Preferred Stock.
Holders of Depositary Shares will be required to pay any other transfer and
other taxes and governmental charges and such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
DELIVERY OF REPORTS
Each Depositary will forward to the holders of the applicable Depositary
Shares all reports, notices and communications from AmSouth that are delivered
to such Depositary and that AmSouth is required to furnish the holders of the
Preferred Stock of the applicable series.
DEPOSITARY'S AGENTS
With the prior approval of AmSouth, the Depositary may, from time to time,
appoint agents to act in any respect for the Depositary for the purposes of
the Depositary Agreement.
OBLIGATIONS OF THE DEPOSITARY AND AMSOUTH
Neither any Depositary nor AmSouth will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under any Deposit Agreement. The obligations of AmSouth and each
Depositary under any Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute
or defend any legal proceeding in respect of any Depositary Shares or
Preferred Stock unless satisfactory indemnity is furnished. Each of them may
rely upon written advice of counsel or accountants, or information provided by
persons presenting Preferred Stock for deposit, holders of Depositary Shares
or other persons believed by it in good faith to be competent and on documents
believed to be genuine.
TITLE
AmSouth, each Depositary and any agent of AmSouth or the applicable
Depositary may treat the registered owner of any Depositary Share as the
absolute owner thereof (whether or not any payment in respect of such
Depositary Share is overdue and notwithstanding any notice to the contrary)
for the purpose of making payment and for all other purposes. See "GLOBAL
SECURITIES" below.
RESIGNATION AND REMOVAL OF DEPOSITARY
A Depositary may resign at any time by delivering to AmSouth notice of its
election to do so, and AmSouth may at any time remove a Depositary. Any such
resignation or removal will take effect upon the appointment of a successor
Depositary and its acceptance of such appointment. Such successor Depositary
must be appointed within 60 days after delivery of the notice of resignation
or removal and must be a bank or trust company having its principal office in
the United States and having a combined capital and surplus of at least
$50,000,000.
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REPLACEMENT OF DEPOSITARY RECEIPTS
Any mutilated, destroyed, lost or stolen Depositary Receipt may be replaced
at the expense of the holder thereof by the applicable Depositary, in its
discretion, upon delivery by the holder of such mutilated receipt, or in lieu
of and in substitution for such destroyed, lost or stolen receipt. The
Depositary may demand evidence satisfactory to it of such destruction, loss or
theft, or of the authenticity of such mutilated Depositary Receipt, and
adequate indemnification for replacement of the Depositary Receipt.
GOVERNING LAW
Each Deposit Agreement and the related Depositary Receipts will be governed
by, and construed in accordance with, the laws of the State of New York.
DESCRIPTION OF DEBT SECURITIES
The following summary description of the Indentures (as defined below) and
the Debt Securities does not purport to be complete and is qualified in its
entirety by reference to the Indenture pursuant to which such Debt Securities
are issued, the forms of which Indentures are filed as exhibits to the
Registration Statement of which this Prospectus is a part.
Furthermore, the following summary description of the Indentures and the
Debt Securities relates to certain terms and conditions applicable to the Debt
Securities generally. The particular terms of any series of Debt Securities
will be described in the applicable Prospectus Supplement. If so indicated in
such Prospectus Supplement, the terms of any such series may differ from the
terms set forth below.
GENERAL
Subordinated Debt Securities are to be issued under an Indenture (the
"Subordinated Indenture"), dated as of May 25, 1994, as supplemented by the
Supplemental Indenture thereto, dated as of , 1998, between AmSouth
and Bankers Trust Company, as the trustee therefor (the "Subordinated
Trustee"). Senior Debt Securities are to be issued under an Indenture (the
"Senior Indenture"), between AmSouth and the trustee named in the applicable
Prospectus Supplement as the trustee therefor (the "Senior Trustee"). The
Subordinated Indenture and the form of Senior Indenture are exhibits to the
Registration Statement of which this Prospectus is a part. The Senior
Indenture and the Subordinated Indenture are sometimes referred to
collectively as the "Indentures" and the Senior Trustee and the Subordinated
Trustee are sometimes referred to collectively as the "Trustees".
The Debt Securities will be direct, unsecured obligations of AmSouth. The
Debt Securities will not be deposits or other obligations of a bank and will
not be guaranteed or insured by the FDIC or any other governmental agency.
The Indentures do not limit the aggregate principal amount of Debt
Securities or of any particular series of Debt Securities that may be issued
thereunder and provide that Debt Securities issued thereunder may be issued
from time to time in one or more series, in each case with the same or various
maturities, at par or at a discount. The Indentures do not limit the amount of
other debt that may be issued by AmSouth and do not contain financial or
similar restrictive covenants. AmSouth expects from time to time to incur
additional indebtedness constituting Senior Indebtedness and Other Financial
Obligations (each as defined below). The Indentures do not prohibit or limit
the incurrence of additional Senior Indebtedness or Other Financial
Obligations. Each Indenture provides that there may be more than one Trustee
under such Indenture with respect to different series of Debt Securities.
The Indentures do not contain any provision intended to provide protection
to holders of Debt Securities against a sudden or dramatic decline in credit
quality of AmSouth that could, for example, result from a takeover,
recapitalization, special dividend or other restructuring.
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The applicable Prospectus Supplement will describe the following terms of
the series of Debt Securities in respect of which this Prospectus is being
delivered: (1) the title of such Debt Securities; (2) whether such Debt
Securities are Senior Debt Securities or Subordinated Debt Securities; (3) any
limit upon the aggregate principal amount of such Debt Securities and the
percentage of such principal amount at which such Debt Securities may be
issued; (4) the date or dates on which the principal of such Debt Securities
is scheduled to become payable (the "Stated Maturity"); (5) the rate or rates
(which may be fixed or variable) per annum at which such Debt Securities will
bear interest, or the method of determining such rate or rates, if any, the
date or dates from which any such interest will accrue, the dates on which any
such interest will be payable (the "Interest Payment Dates"), the Regular
Record Date (as defined in the applicable Indenture) for the interest payable
on any Interest Payment Date, and the person to whom principal of, or premium,
if any, or interest on, any Debt Security of such series will be payable, if
other than the person in whose name such Debt Security (or one or more
predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest; (6) if other than the location
specified in this Prospectus, the place or places where the principal of and
premium, if any, and interest on Debt Securities will be payable; (7) the
place or places at which, the period or periods within which, the price or
prices at which and the terms and conditions, if any, upon which the Debt
Securities may be exchanged for or converted into other securities of AmSouth,
including other Debt Securities, Preferred Stock and Common Stock; (8) the
period or periods within which, the price or prices at which and the terms and
conditions upon which such Debt Securities will, pursuant to any mandatory
sinking fund provisions or otherwise, or may, pursuant to any optional sinking
fund provisions or otherwise, be redeemed in whole or in part by AmSouth; (9)
the period or periods within which, the price or prices at which and the terms
and conditions upon which such Debt Securities may be repaid, in whole or in
part, at the option of the holders thereof; (10) if other than denominations
of $1,000 and any integral multiple thereof, the denominations in which such
Debt Securities will be issuable; (11) if other than the principal amount
thereof, the portion of the principal amount of such Debt Securities that will
be payable upon declaration of acceleration of the maturity thereof; (12) the
currency or currency unit of payment of principal of and premium, if any, and
interest on such Debt Securities, and any index used to determine the amount
of principal of or premium, if any, and interest on such Debt Securities; (13)
whether such Debt Securities are to be issuable as Global Securities (as
defined below) and, in such case, the initial securities depositary with
respect thereto and the circumstances under which such Global Security may be
exchanged for definitive securities; (14) whether the subordination provisions
summarized below or different subordination provisions, including a different
definition of "Senior Indebtedness", "Entitled Persons", "Existing
Subordinated Indebtedness" or "Other Financial Obligations", will apply to any
such Debt Securities that are Subordinated Debt Securities; and (15) any other
terms of such Debt Securities.
FORM, REGISTRATION AND TRANSFER
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of, and premium, if any, and interest, if any, on Debt Securities
will be payable, and Debt Securities will be transferable, at the agency or
office of AmSouth maintained for such purpose in the Borough of Manhattan, The
City of New York or in Birmingham, Alabama, except that interest may be paid
at the option of AmSouth by check mailed to the address of the holder entitled
thereto as it appears on the applicable Security Register (as defined in the
applicable Indenture).
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities will be issued only in fully registered form, without coupons, in
denominations of $1,000 and any integral multiple thereof. The Indentures
provide that Debt Securities of any series may be issuable in permanent global
form. See "GLOBAL SECURITIES" below. No service charge will be made for any
registration of transfer or exchange of the Debt Securities, but AmSouth may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Both Senior Debt Securities and Subordinated Debt Securities may be issued
as Original Issue Discount Securities (as defined below) to be offered and
sold at a substantial discount below their stated principal amount.
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Federal income tax consequences and other special considerations applicable to
any such Original Issue Discount Securities will be described in the
applicable Prospectus Supplement. "Original Issue Discount Security" means any
Debt Security that provides for an amount less than the principal amount
thereof to be due and payable upon the declaration of acceleration of the
maturity thereof in accordance with the terms of the applicable Indenture.
The applicable Prospectus Supplement relating to any series of Debt
Securities that are Original Issue Discount Securities will describe the
particular provisions relating to acceleration of the maturity of a portion of
the principal amount of such series of Original Issue Discount Securities upon
the occurrence of an Event of Default (as defined below) and the continuation
thereof.
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The obligations of AmSouth to make any payment on account of the principal
of or premium, if any, or interest on any Subordinated Debt Securities will,
to the extent set forth in the Subordinated Indenture, be subordinate and
junior in right of payment to all Senior Indebtedness of AmSouth. In the event
of the acceleration of the maturity of any Subordinated Debt Securities, the
holders of all Senior Indebtedness will first be entitled to receive payment
in full of all amounts due thereon before the holders of any Subordinated Debt
Securities will be entitled to receive any payment upon the principal of or
interest on Subordinated Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement, in
certain events of insolvency, the payment of the principal of and premium, if
any, and interest on the Subordinated Debt Securities will, to the extent set
forth in the Subordinated Indenture, also be effectively subordinated in right
of payment to the prior payment in full of all Other Financial Obligations.
Upon any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings of AmSouth, the holders of all Senior Indebtedness will first be
entitled to receive payment in full of all amounts due or to become due
thereon before the holders of any Subordinated Debt Securities will be
entitled to receive any payment in respect of the principal of or premium, if
any, or interest on Subordinated Debt Securities. If upon any such payment or
distribution of assets to creditors, there remains, after giving effect to
such subordination provisions in favor of the holders of Senior Indebtedness,
any amount of cash, property or securities available for payment or
distribution in respect of Subordinated Debt Securities ("Excess Proceeds")
and if, at such time, any Entitled Persons (as defined below) in respect of
Other Financial Obligations have not received payment in full of all amounts
due or to become due on or in respect of such Other Financial Obligations,
then such Excess Proceeds will first be applied to pay or provide for the
payment in full of such Other Financial Obligations before any payment or
distribution may be made in respect of the Subordinated Debt Securities (or
other securities ranking pari passu in respect of payment).
AmSouth's obligations under Subordinated Debt Securities will rank pari
passu in right of payment with each other and with the Existing Subordinated
Indebtedness (as defined below), subject (unless otherwise specified in the
applicable Prospectus Supplement) to the obligations of the holders of
Subordinated Debt Securities to pay over any Excess Proceeds to Entitled
Persons in respect of Other Financial Obligations as provided in the
Subordinated Indenture.
By reason of this subordination in favor of the holders of Senior
Indebtedness, in the event of insolvency, creditors of AmSouth who are neither
holders of Senior Indebtedness nor holders of Subordinated Debt Securities may
recover less, ratably, than the holders of Senior Indebtedness and may recover
more, ratably, than the holders of Subordinated Debt Securities. By reason of
the obligation of the holders of Subordinated Debt Securities to pay over any
Excess Proceeds to Entitled Persons in respect to Other Financial Obligations,
in the event of insolvency, holders of certain Existing Subordinated
Indebtedness may recover less, ratably, than Entitled Persons in respect of
Other Financial Obligations and may recover more, ratably, than the holders of
Subordinated Debt Securities.
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Unless otherwise specified in the applicable Prospectus Supplement, "Senior
Indebtedness" of AmSouth means the principal of, premium, if any, and interest
on (1) all indebtedness of AmSouth (including indebtedness of others
guaranteed by AmSouth), whether outstanding on the date of execution of the
Indenture or thereafter created, incurred or assumed which is (i) for money
borrowed or (ii) evidenced by a note or similar instrument given in connection
with the acquisition of any business, properties or assets of any kind, and
(2) any amendments, renewals, extensions or modifications of any such
indebtedness, unless in any case in the instrument creating or evidencing any
such indebtedness or pursuant to which the same is outstanding it is provided
that such indebtedness is not superior in right of payment to the Subordinated
Debt Securities or is to rank pari passu with or subordinate to the
Subordinated Debt Securities, provided that Senior Indebtedness does not
include any obligations on account of Existing Subordinated Indebtedness (as
defined below).
Unless otherwise specified in the applicable Prospectus Supplement,
"Existing Subordinated Indebtedness" means AmSouth's 9 3/8% Subordinated
Capital Notes Due 1999 (the "Capital Notes"), 7 3/4% Subordinated Notes due
2004 and 6.75% Subordinated Debentures due 2025.
Unless otherwise specified in the applicable Prospectus Supplement, "Other
Financial Obligations" means (a) obligations of AmSouth under direct credit
substitutes, (b) obligations of, or any such obligation directly or indirectly
guaranteed by, AmSouth for purchased money or funds, (c) any deferred
obligation of, or any such obligation directly or indirectly guaranteed by,
AmSouth incurred in connection with the acquisition of any business,
properties or assets not evidenced by a note or similar instrument given in
connection therewith, and (d) all obligations of AmSouth to make payment
pursuant to the terms of financial instruments, such as (1) securities
contracts and foreign currency exchange contracts, (2) derivative instruments,
such as swap agreements (including interest rate and foreign exchange rate
swap agreements), cap agreements, floor agreements, collar agreements,
interest rate agreements, foreign exchange rate agreements, options, commodity
futures contracts, commodity option contracts, and (3) financial instruments
similar to those set forth in (1) and (2) above, other than (x) obligations on
account of Senior Indebtedness, and (y) obligations on account of indebtedness
for money borrowed ranking pari passu with or subordinate to the Subordinated
Debt Securities, including, without limitation, Existing Subordinated
Indebtedness. Unless otherwise specified in the applicable Prospectus
Supplement, "Entitled Persons" means any person who is entitled to payment
pursuant to the terms of Other Financial Obligations.
The applicable Prospectus Supplement may further describe the provisions, if
any, applicable to the subordination of Subordinated Debt Securities of a
particular series offered thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture provides that AmSouth may not consolidate with or merge into
any other person or transfer its properties and assets substantially as an
entirety to any person unless (1) the person formed by such consolidation or
into which AmSouth is merged or the person to which the properties and assets
of AmSouth are so transferred is a corporation, partnership or trust organized
and validly existing under the laws of the United States, any State thereof or
the District of Columbia and expressly assumes by a supplemental indenture the
payment of the principal of and premium, if any, and interest on the Senior
Debt Securities or the Subordinated Debt Securities, as the case may be, and
the performance of the other covenants of AmSouth under the applicable
Indenture; (2) immediately after giving effect to such transaction, no Event
of Default or Default (as defined below), as applicable, and no event that,
after notice or lapse of time or both, would become an Event of Default or
Default, as applicable, has occurred and is continuing; and (3) certain other
conditions are met.
DEFAULTS
The Senior Indenture. An "Event of Default" is defined in the Senior
Indenture, with respect to Debt Securities of any series issued thereunder, as
(1) default in the payment of principal of or premium, if any, on any Debt
Security of that series at maturity; (2) default for 30 days in the payment of
interest on any Debt Security of that series; (3) default in the deposit of
any sinking fund payment when due in respect of that series;
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(4) default in the performance, or breach, of any other covenant or warranty
of AmSouth in the Senior Indenture or in the Debt Securities of that series,
continued for 60 days after written notice to AmSouth by the Senior Trustee or
to AmSouth and the Senior Trustee by the holders of not less than 25% of the
aggregate principal amount of the outstanding Debt Securities of that series;
(5) failure to pay when due any indebtedness of AmSouth or any Principal
Subsidiary Bank for borrowed money in excess of $25,000,000, or acceleration
of the maturity of any such indebtedness in excess of such amount if
acceleration results from a default under the instrument giving rise to such
indebtedness and is not annulled within 60 days after due notice, unless in
either case such default is contested in good faith by appropriate
proceedings; (6) certain events of bankruptcy, insolvency or reorganization of
AmSouth or any Principal Subsidiary Bank; and (7) any other Event of Default
that may be provided for with respect to Debt Securities of that series. A
"Principal Subsidiary Bank", for this purpose, is any Subsidiary (as defined
in the Senior Indenture) that is a bank and that has total assets equal to 30%
or more of the consolidated assets of AmSouth, determined as of the date of
the most recent audited financial statements of such entities. At present, the
only Principal Subsidiary Bank is the Bank.
The Senior Indenture provides that, if any Event of Default with respect to
Debt Securities of any series at the time outstanding thereunder occurs and is
continuing, either the Senior Trustee or the holders of not less than 25% in
aggregate principal amount of the outstanding Debt Securities of that series
may declare the principal amount (or, if the Debt Securities of that series
are Original Issue Discount Securities, such portion of the principal amount
as may be specified in the terms of that series) of all Debt Securities of
that series to be due and payable immediately (provided that no such
declaration is required upon certain events of bankruptcy, insolvency or
reorganization), but upon certain conditions such declaration may be annulled
and past defaults (except, unless theretofore cured, a default in payment of
principal of or premium, if any, or interest on the Debt Securities of that
series and certain other specified defaults) may be waived by the holders of a
majority in principal amount of the outstanding Debt Securities of that series
on behalf of the holders of all Debt Securities of that series. In the event
of the bankruptcy, insolvency or reorganization of AmSouth, the claims of
holders of the Senior Debt Securities would be subject as to enforcement to
the broad equity power of a United States Bankruptcy Court, and to the
determination by that court of the nature of the rights of such holders.
The Senior Indenture contains a provision entitling the Senior Trustee,
subject to the duty of the Senior Trustee upon the occurrence and continuation
of an Event of Default to act with the required standard of care, to be
indemnified by the holders of any series of outstanding Senior Debt Securities
thereunder before proceeding to exercise any right or power under the Senior
Indenture at the request of the holders of such series of Senior Debt
Securities. The Senior Indenture provides that the holders of a majority in
aggregate principal amount of outstanding Senior Debt Securities of any series
thereunder may direct the time, method and place of conducting any proceeding
for any remedy available to the Senior Trustee, or exercising any trust or
other power conferred on the Senior Trustee, with respect to the Debt
Securities of such series, provided that the Senior Trustee may decline to act
if such direction is contrary to law or the Senior Indenture or would involve
the Senior Trustee in personal liability.
AmSouth will file annually with the Senior Trustee a certificate as to
compliance with all conditions and covenants in the Senior Indenture.
The Subordinated Indenture. Payment of principal of the Subordinated Debt
Securities may be accelerated only upon an "Event of Default" as defined
below. There is no right of acceleration in the case of a default in the
payment of interest or the payment of principal prior to the date of maturity
or a default in the performance of any other covenant of AmSouth in the
Subordinated Indenture, unless the terms of a particular series of
Subordinated Debt Securities specifically provide otherwise, in which case any
such extension of such right of acceleration will be described in the
applicable Prospectus Supplement.
An "Event of Default" is defined in the Subordinated Indenture, with respect
to Debt Securities of any series issued thereunder, as certain events
involving the bankruptcy, insolvency or reorganization of AmSouth and any
other Event of Default that may be provided for with respect to the
Subordinated Debt Securities of that series. A "Default" is defined in the
Subordinated Indenture, with respect to Debt Securities of any series, to
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include: (1) any Event of Default with respect to any Debt Securities of that
series; (2) a default in the payment of principal of or premium, if any, on
any Debt Security of that series at maturity; (3) default for 30 days in the
payment of interest on any Debt Security of that series; (4) default in the
performance, or breach, of any other covenant or warranty of AmSouth in the
Subordinated Indenture or in the Debt Securities of that series, continued for
30 days after written notice to AmSouth by the Subordinated Trustee or to
AmSouth and the Subordinated Trustee by the holders of not less than 25% in
aggregate principal amount of the outstanding Debt Securities of such series;
or (v) any other Default that may be provided for with respect to the
Subordinated Debt Securities of that series. If an Event of Default with
respect to the Debt Securities of any series occurs and is continuing, either
the Subordinated Trustee or the holders of not less than 25% in aggregate
principal amount of the outstanding Debt Securities of that series may declare
the principal amount (or, if the Debt Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of all Debt Securities of that series
to be due and payable immediately (provided that no such declaration is
required upon certain events of bankruptcy, insolvency or reorganization). The
holders of a majority in aggregate principal amount of the outstanding Debt
Securities of that series may waive an Event of Default resulting in
acceleration of the Debt Securities of such series, but only if all Events of
Default have been remedied and all payments due on the Debt Securities of that
series (other than those due as a result of acceleration) have been made and
certain other conditions have been met.
Subject to the provisions of the Subordinated Indenture relating to the
duties of the Subordinated Trustee, if a Default has occurred and is
continuing with respect to any series of Subordinated Debt Securities, the
Subordinated Trustee will be under no obligation to exercise any of its rights
or powers under the Subordinated Indenture at the request or direction of any
of the holders, unless such holders of such series have offered to the
Subordinated Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustee, the holders of a majority in aggregate
principal amount of the outstanding Debt Securities of that series will have
the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Subordinated Trustee or exercising any trust
or other power conferred on the Subordinated Trustee, provided that the
Subordinated Trustee may decline to act if such direction is contrary to law
or the Subordinated Indenture or would involve the Subordinated Trustee in
personal liability. The holders of a majority in aggregate principal amount of
the outstanding Debt Securities of that series may waive any past default
under the Subordinated Indenture with respect to such series, except a default
in the payment of principal or interest or a default in respect of a covenant
in the Subordinated Indenture that cannot be modified without the consent of
the holder of each outstanding Debt Security of the series affected. In the
event of the bankruptcy, insolvency or reorganization of AmSouth, the claims
of the holders of the Subordinated Debt Securities would be subject as to
enforcement to the broad equity power of a United States Bankruptcy Court, and
to the determination by that court of the nature of the rights of such
holders.
AmSouth will file annually with the Subordinated Trustee a certificate as to
compliance with all conditions and covenants in the Subordinated Indenture.
DEFEASANCE AND DISCHARGE
Each Indenture provides that the terms of any series of Debt Securities
issued thereunder may provide that AmSouth may terminate certain of its
obligations under such Indenture with respect to the Debt Securities of such
series on the terms and subject to the conditions contained in such Indenture,
by (a) depositing irrevocably with the applicable Trustee as trust funds in
trust (1) in the case of Debt Securities denominated in a foreign currency,
money in such foreign currency or Foreign Government Obligations (as defined
below) of the foreign government or governments issuing such foreign currency,
(2) in the case of Debt Securities denominated in U.S. dollars, U.S. dollars
or U.S. Government Obligations (as defined below), in each case in an amount
that through the payment of interest, principal or premium, if any, in respect
thereof in accordance with their terms will provide (without any reinvestment
of such interest, principal or premium), not later than one business day
before the due date of any payment, money, or (3) a combination of money and
U.S. Government Obligations or Foreign Government Obligations, as applicable,
sufficient to pay the principal of or premium, if any, and interest
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on, the Debt Securities of such series as such are due and (b) satisfying
certain other conditions precedent specified in the applicable Indenture. Such
deposit and termination is conditioned, among other things, upon AmSouth's
delivery of (a) an opinion of independent counsel that the holders of the Debt
Securities of such series will have no federal income tax consequences as a
result of such deposit and termination and (b) if the Debt Securities of such
series are then listed on the NYSE, an opinion of counsel that the Debt
Securities of such series will not be delisted as a result of the exercise of
this option. Such termination will not relieve AmSouth of its obligation to
pay when due the principal of, and interest on the Debt Securities of such
series if the Debt Securities of such series are not paid from the money,
Foreign Government Obligations or U.S. Government Obligations held by the
applicable Trustee for payment thereof.
"U.S. Government Obligations" means securities that are (1) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (2) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, that, in either case,
under clauses (1) or (2) are not callable or redeemable at the option of the
issuer thereof. "Foreign Government Obligations" means securities denominated
in a foreign currency that are (1) direct obligations of a foreign government
for the payment of which its full faith and credit is pledged or (2)
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of a foreign government the payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
foreign government, that, in either case, under clauses (1) or (2) are not
callable or redeemable at the option of the issuer thereof.
The applicable Prospectus Supplement will state whether any defeasance
provisions of the applicable Indenture will apply to the Debt Securities
offered thereby.
MODIFICATION AND WAIVER
Certain modifications and amendments of each of the Indentures may be made
by AmSouth and the applicable Trustee only with the consent of the holders of
not less than a majority in aggregate principal amount of the outstanding Debt
Securities of each series issued under such Indenture and affected by the
modification or amendment, provided that no such modification or amendment
may, without the consent of the holder of each outstanding Debt Security
issued under such Indenture and affected thereby: (1) change the Stated
Maturity of the principal of, or any installment of principal of or interest
on, any such Debt Security; (2) reduce the principal amount of, or the
premium, if any, or the interest, if any, on, any such Debt Security
(including in the case of an Original Issue Discount Security the amount
payable upon acceleration of the maturity thereof); (3) change the place of
payment where, or the coin or currency or currency unit in which, any
principal of, or premium, if any, or interest on, any such Debt Security is
payable; (4) impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date (as defined in the applicable
Indenture)); (5) reduce the above-stated percentage of outstanding Debt
Securities of any series the consent of the holders of which is necessary to
modify or amend the applicable Indenture; or (6) modify the foregoing
requirements or reduce the percentage of aggregate principal amount of
outstanding Debt Securities of any series required to be held by holders
seeking to waive compliance with certain provisions of the applicable
Indenture or seeking to waive certain defaults.
The holders of not less than a majority in aggregate principal amount of the
outstanding Debt Securities of any series may on behalf of the holders of all
Debt Securities of that series waive, insofar as that series is concerned,
compliance by AmSouth with certain restrictive provisions of the applicable
Indenture. The holders of not less than a majority in aggregate principal
amount of the outstanding Debt Securities of any series may on behalf of the
holders of all Debt Securities of that series waive any past default under the
applicable Indenture with respect to that series, except a default in the
payment of the principal of, or premium, if any, or interest on, any Debt
Security of that series or in respect of a covenant or provision that under
the applicable Indenture cannot be modified or amended without the consent of
the holder of each outstanding Debt Security issued thereunder of the series
affected.
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Certain modifications and amendments of each of the Indentures may be made
by AmSouth and the applicable Trustee without the consent of holders of the
outstanding Debt Securities issued under such Indenture.
Each Indenture provides that in determining whether the holders of the
requisite principal amount of the outstanding Debt Securities issued under
such Indenture have given any request, demand, authorization, direction,
notice, consent or waiver thereunder or are present at a meeting of holders of
Debt Securities for quorum purposes, (1) the principal amount of an Original
Issue Discount Security that will be deemed to be outstanding will be the
amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the maturity thereof, and (2) the
principal amount of a Debt Security denominated in a foreign currency or
currency unit will be the U.S. dollar equivalent, determined on the date of
original issuance of such Debt Security, of the principal amount of such Debt
Security or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent, determined on the date of original issuance of such Debt
Security, of the amount determined as provided in (1) above.
TITLE
AmSouth, the applicable Trustee and any agent of AmSouth or the applicable
Trustee may treat the registered owner of any Debt Security as the absolute
owner thereof (whether or not such Debt Security is overdue and
notwithstanding any notice to the contrary) for the purpose of making payment
and for all other purposes. See "GLOBAL SECURITIES" below.
REPLACEMENT OF DEBT SECURITIES
Any mutilated Debt Security will be replaced by AmSouth at the expense of
the holder upon surrender of such Debt Security to the applicable Trustee.
Debt Securities that are destroyed, lost or stolen will be replaced by AmSouth
at the expense of the holder upon delivery to the applicable Trustee of
evidence of the destruction, loss or theft thereof satisfactory to AmSouth and
the applicable Trustee. In the case of a destroyed, lost or stolen Debt
Security, an indemnity satisfactory to the applicable Trustee and AmSouth may
be required at the expense of the holder of such Debt Security before a
replacement Debt Security will be issued.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
CONCERNING THE TRUSTEES
General. Any Trustee may resign or be removed with respect to one or more
series of Debt Securities and a successor Trustee may be appointed to act with
respect to such series. If two or more persons are acting as Trustee with
respect to different series of Debt Securities, each such Trustee will be a
Trustee of a trust under the related Indenture separate and apart from the
trust administered by any other such Trustee, and any action described herein
to be taken by the "Trustee" may then be taken by each such Trustee with
respect to, and only with respect to, the one or more series of Debt
Securities for which it is Trustee.
The Subordinated Trustee. The Subordinated Trustee is not a trustee under
any indenture, other than the Subordinated Indenture, pursuant to which
indebtedness of AmSouth is outstanding as of the date hereof. In the normal
course of business, AmSouth and its subsidiaries may conduct banking
transactions with the Subordinated Trustee, and the Subordinated Trustee and
its affiliates may conduct banking transactions with AmSouth and its
subsidiaries.
The Senior Trustee. The Senior Trustee will be named in the applicable
Prospectus Supplement.
23
<PAGE>
DESCRIPTION OF WARRANTS
The following summary description of the Warrants and Warrant Certificates
(as defined below) does not purport to be complete and is qualified in its
entirety by reference to the Warrant Agreement (as defined below) with respect
to the Warrants of any particular series, the forms of which will be
incorporated by reference into the Registration Statement of which this
Prospectus is a part at or prior to the time of the issuance of such Warrants.
Furthermore, the following summary description of the Warrants and Warrant
Certificates relates to certain terms and conditions applicable to the
Warrants generally. The particular terms of any series of Warrants will be
described in the applicable Prospectus Supplement. If so indicated in such
Prospectus Supplement, the terms of any such series may differ from the terms
set forth below.
GENERAL
AmSouth may issue Warrants for the purchase of Debt Securities, Preferred
Stock or Common Stock. Warrants may be issued independently or together with
Debt Securities, Preferred Stock or Common Stock or with other Warrants, and
may be attached to or separate from such other Securities.
Each series of Warrants will be evidenced by certificates (the "Warrant
Certificates") issued pursuant to a separate agreement (a "Warrant Agreement")
to be entered into between AmSouth and a bank selected by AmSouth with respect
to such series, having an office or an agent's office in the United States and
having combined capital and surplus of at least $50,000,000 (with respect to
such series, the "Warrant Agent"). The Prospectus Supplement relating to a
series of Warrants will set forth the name and address of the Warrant Agent.
The applicable Prospectus Supplement will describe the terms of the series
of Warrants in respect of which this Prospectus is being delivered, including:
(1) the offering price; (2) the currency for which such Warrants may be
purchased; (3) if applicable, the designation and terms of the Securities with
which the Warrants are issued and the number of Warrants issued with each such
Security or each principal amount of such Security; (4) if applicable, the
date on and after which the Warrants and the related Securities will be
separately transferable; (5) in the case of Warrants to purchase Debt
Securities, the principal amount of Debt Securities purchasable upon exercise
of one Warrant and the price at and currency in which such principal amount of
Debt Securities may be purchased upon such exercise and, in the case of
Warrants to purchase Preferred Stock, Common Stock or other Warrants, the
number of shares of Preferred Stock or Common Stock or number of Warrants, as
the case may be, purchasable upon the exercise of one Warrant and the price at
which such shares or Warrants may be purchased upon such exercise; (6) the
date on which the right to exercise the Warrants will commence and the date on
which such right will expire (the "Expiration Date"); (7) certain federal
income tax consequences of holding or exercising such Warrants; (8) the terms
of the Securities issuable upon exercise of such Warrants, as described in the
applicable section of this Prospectus; and (9) any other material terms of the
Warrants.
Warrant Certificates may be exchanged for new Warrant Certificates of
different denominations, may be presented for registration of transfer, and
may be exercised at the corporate trust office of the Warrant Agent or any
other office indicated in the applicable Prospectus Supplement. If the
Warrants are not separately transferrable from the Securities with which they
were issued, such exchange may take place only in connection with an exchange
of the certificates representing such related Securities. Prior to the
exercise of their Warrants, holders of Warrants will not have any of the
rights of holders of the Securities purchasable upon such exercise, including,
in the case of Warrants to purchase Debt Securities, the right to receive
payments of principal of, premium, if any, or interest, if any, on the Debt
Securities purchasable upon such exercise or to enforce covenants in the
applicable Indenture or, in the case of Warrants to purchase Preferred Stock
or Common Stock, the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of AmSouth or to exercise voting
rights, if any, or in the case of Warrants to Purchase other Warrants the
right to exercise such other Warrants or to enforce covenants in the
applicable Warrant Agreement.
24
<PAGE>
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase the Securities specified in
the applicable Prospectus Supplement at the exercise price set forth in, or
calculated as described in, the applicable Prospectus Supplement. Unless
otherwise specified in the applicable Prospectus Supplement, Warrants may be
exercised at any time up to 5:00 P.M. New York time on the Expiration Date set
forth in such Prospectus Supplement. After the close of business on the
Expiration Date, unexercised Warrants will become void.
Warrants may be exercised by delivery of the Warrant Certificate
representing the Warrants to be exercised together with certain information
and payment to the Warrant Agent in immediately available funds of the amount
required to purchase the Securities purchasable upon such exercise, as
provided in the applicable Prospectus Supplement. The information required to
be delivered will be set forth on the reverse side of the Warrant Certificate
and in the applicable Prospectus Supplement. Upon receipt of such payment and
the Warrant Certificate properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
applicable Prospectus Supplement, AmSouth will, in the time period provided by
the applicable Warrant Agreement, issue and deliver the Securities purchasable
upon such exercise. If fewer than all of the Warrants represented by such
Warrant Certificate are exercised, a new Warrant Certificate will be issued
for the remaining amount of Warrants.
ANTIDILUTION PROVISIONS
In the case of Warrants to purchase Common Stock, the exercise price payable
and the number of shares of Common Stock purchasable upon the exercise of each
Warrant will be subject to adjustment in certain events, including (i) the
issuance of a stock dividend to holders of Common Stock or a combination,
subdivision or reclassification of Common Stock; (ii) the issuance of rights,
warrants or options to all holders of AmSouth's Common Stock entitling the
holders thereof to purchase Common Stock for an aggregate consideration per
share less than the current market price per share of Common Stock; or (iii)
any distribution by AmSouth to the holders of its Common Stock of evidences of
indebtedness of AmSouth or of assets (excluding cash dividends or
distributions payable out of consolidated earnings and earned surplus and
dividends or distributions referred to in (i) above). No adjustment in the
number of shares purchasable upon exercise of the Warrants will be required
until cumulative adjustments require an adjustment of at least 1% of such
number. No fractional shares will be issued upon exercise of Warrants;
instead, AmSouth will pay cash value of any fractional shares otherwise
issuable.
MODIFICATION
Any Warrant Agreement and the terms of the related Warrants may be amended
by AmSouth and the applicable Warrant Agent, without the consent of the
holders of any such Warrants, for the purpose of (i) curing any ambiguity, or
curing, correcting or supplementing any defective or inconsistent provision
contained therein, or making any other provisions with respect to matters or
questions arising under the Warrant Agreement that is not inconsistent with
the provisions of the Warrant Agreement or the Warrant Certificates, (ii)
evidencing the succession of another corporation to AmSouth and the assumption
by any such successor of the covenants of AmSouth contained in such Warrant
Agreement and the Warrants, (iii) appointing a successor depository, (iv)
evidencing and providing for the acceptance of appointment by a successor
Warrant Agent with respect to the Warrants, (v) adding to the covenants of
AmSouth for the benefit of the holders of such Warrants or surrendering any
right or power conferred upon AmSouth under the Warrant Agreement, (vi)
issuing Warrants in definitive form, if such Warrants are initially issued in
the form of Global Securities, or (vii) amending the Warrant Agreement and the
Warrants in any manner that AmSouth may deem to be necessary or desirable and
that will not adversely affect the interests of the holders of such Warrants
in any material respect.
AmSouth and the Warrant Agent may also amend any Warrant Agreement and the
terms of the related Warrants with the consent of the holders of not less than
66 2/3% in number of the unexercised Warrants affected by such amendment, for
the purpose of adding any provisions to or modifying in any manner or
eliminating any
25
<PAGE>
of the provisions of such Warrant Agreement or of modifying in any manner the
rights of the holders of such Warrants, except that no such amendment that (i)
changes the Warrants so as to reduce the number or principal amount of
Securities purchasable upon exercise of such Warrants, (ii) shortens the
period of time during which the Warrants may be exercised, (iii) otherwise
adversely affects the exercise rights of the holders of such Warrants in any
material respect, or (iv) reduces the number of unexercised Warrants the
consent of holders of which is required for amendment of the Warrant Agreement
or the related Warrants, may be made without the consent of each holder
affected thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Warrant Agreement will provide that AmSouth may consolidate or merge
with or into any other corporation or sell, lease, transfer or convey all or
substantially all of its assets to any other corporation, provided that (i)
either AmSouth must be the continuing corporation, or the corporation (if
other than AmSouth) that is formed by or results from any such consolidation
or merger or that receives such assets must be a corporation organized and
existing under the laws of the United States of America or a state thereof and
must assume the obligations of AmSouth with respect to all the unexercised
Warrants and the performance and observance of all of the covenants and
conditions of the applicable Warrant Agreement to be performed or observed by
AmSouth and (ii) AmSouth or such successor corporation, as the case may be,
must not immediately be in default under such Warrant Agreement.
ENFORCEABILITY OF RIGHTS BY HOLDERS OF WARRANTS
Each Warrant Agent will act solely as the agent of AmSouth under the
applicable Warrant Agreement and will not assume any obligation or
relationship of agency or trust for or with any holder of any Warrant except
as expressly set forth under the applicable Warrant Agreement. A single bank
or trust company may act as Warrant Agent for more than one issue of Warrants.
A Warrant Agent will have no duty or responsibility in case of any default by
AmSouth in the performance of its obligations under the applicable Warrant
Agreement or Warrant including, without limitation, any duty or responsibility
to initiate any proceedings at law or otherwise or to make any demand upon
AmSouth. Any holder of a Warrant may, without the consent of the related
Warrant Agent or the holder of any other Warrant, enforce by appropriate legal
action, in and for its own behalf, its right to exercise, and receive the
Securities purchasable upon exercise of, its Warrants.
REPLACEMENT OF WARRANT CERTIFICATES
Any destroyed, lost, stolen or mutilated Warrant Certificate will be
replaced by AmSouth at the holder's expense upon delivery to AmSouth and the
applicable Warrant Agent of evidence satisfactory to them of the ownership of
such Warrant Certificate and of the destruction, loss, theft or mutilation of
such Warrant Certificate, and (in the case of mutilation) surrender of such
Warrant Certificate to the applicable Warrant Agent, unless AmSouth or the
Warrant Agent has received notice that such Warrant Certificate has been
acquired by a bona fide purchaser. The holder of such Warrant will also be
required to provide an indemnity satisfactory to the relevant Warrant Agent
and AmSouth before a replacement Warrant Certificate will be issued.
TITLE
AmSouth and each Warrant Agent may treat the registered holder of any
Warrant Certificate as the absolute owner of the Warrants evidenced thereby
(notwithstanding any notice to the contrary) for any purpose and as the person
entitled to exercise the rights attaching to the Warrants evidenced thereby.
See "GLOBAL SECURITIES" below.
GOVERNING LAW
Each Warrant Agreement and the Warrants will be governed by, and construed
in accordance with, the laws of the State of New York.
26
<PAGE>
GLOBAL SECURITIES
Unless otherwise specified in the applicable Prospectus Supplement, the
Securities will be issued in the form of one or more global certificates
(collectively, with respect to each series or issue of Securities, the "Global
Security") registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable Prospectus
Supplement, the depositary will be The Depository Trust Company ("DTC").
AmSouth has been informed by DTC that its nominee will be Cede & Co. ("Cede").
Accordingly, Cede is expected to be the initial registered holder of all
Securities that are issued in global form. No person that acquires a
beneficial interest in such Securities will be entitled to receive a
certificate representing such person's interest in the Securities except as
set forth herein or in the applicable Prospectus Supplement. Unless and until
definitive Securities are issued under the limited circumstances described
below, all references to actions by holders of Securities issued in global
form shall refer to actions taken by DTC upon instructions from its
Participants (as defined below), and all references herein to payments and
notices to holders shall refer to payments and notices to DTC or Cede, as the
registered holder of such Securities.
DTC has informed AmSouth that it is a limited purpose trust company
organized under the New York Banking Law, a "banking organization" within the
meaning of the New York Banking Law, that it is a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to Section
17A of the Exchange Act, and that it was created to hold securities for its
participating organizations ("Participants") and to facilitate the clearance
and settlement of securities transactions among Participants through
electronic book-entry, thereby eliminating the need for physical movement of
certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations, and may include certain other
organizations. Indirect access to the DTC system also is available to others
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly ("Indirect Participants").
Persons that are not Participants or Indirect Participants but desire to
purchase, sell or otherwise transfer ownership of, or other interests in,
Securities may do so only through Participants and Indirect Participants.
Under a book-entry format, holders may experience some delay in their receipt
of payments, as such payments will be forwarded by the agent designated by
AmSouth to Cede, as nominee for DTC. DTC will forward such payments to its
Participants, which thereafter will forward them to Indirect Participants or
holders. Holders will not be recognized by AmSouth or by the applicable
registrar, transfer agent, Trustee, Depositary or Warrant Agent, or their
agents, as registered holders of the Securities entitled to the benefits of
the Certificate of Incorporation or the applicable Indenture, Deposit
Agreement or Warrant Agreement. Beneficial owners that are not Participants
will be permitted to exercise their rights as such only indirectly through and
subject to the procedures of Participants and, if applicable, Indirect
Participants.
Under the rules, regulations and procedures creating and affecting DTC and
its operations as currently in effect (the "Rules"), DTC will be required to
make book-entry transfers of Securities among Participants and to receive and
transmit payments to Participants. Participants and Indirect Participants with
which beneficial owners of Securities have accounts with respect to the
Securities similarly are required by the Rules to make book-entry transfers
and receive and transmit such payments on behalf of their respective account
holders.
Because DTC can act only on behalf of Participants, who in turn act only on
behalf of Participants or Indirect Participants, and on behalf of certain
banks, trust companies and other persons approved by it, the ability of a
beneficial owner of Securities issued in global form to pledge such Securities
to persons or entities that do not participate in the DTC system, or to
otherwise act with respect to such Securities, may be limited due to the
unavailability of physical certificates for such Securities.
DTC has advised AmSouth that DTC will take any action permitted to be taken
by a registered holder of any Securities under the Certificate of
Incorporation or the applicable Indenture, Deposit Agreement or Warrant
Agreement only at the direction of one or more Participants to whose accounts
with DTC such Securities are credited.
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<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement, a Global
Security will be exchangeable for the relevant definitive Securities
registered in the names of persons other than DTC or its nominee only if (i)
DTC notifies AmSouth that it is unwilling or unable to continue as depository
for such Global Security or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act at a time when DTC is required to be so
registered in order to act as such depository, (ii) AmSouth determines that
such Global Security shall be so exchangeable or (iii) there has occurred and
is continuing a default in the payment of any amount due in respect of the
Securities or, in the case of Debt Securities, an Event of Default or an event
that, with the giving of notice or lapse of time, or both, would constitute an
Event of Default with respect to such Debt Securities. Any Global Security
that is exchangeable pursuant to the preceding sentence will be exchangeable
for Securities registered in such names as DTC directs.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC is generally required to notify all Participants of the
availability through DTC of definitive Securities. Upon surrender by DTC of
the Global Security representing the Securities and delivery of instructions
for re-registration, the registrar, transfer agent, Trustee, Depositary or
Warrant Agent, as the case may be, will reissue the Securities as definitive
Securities, and thereafter such persons will recognize the holders of such
definitive Securities as registered holders of Securities entitled to the
benefits of the Certificate of Incorporation or the applicable Indenture,
Deposit Agreement and/or Warrant Agreement.
Except as described above, a Global Security may not be transferred except
as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or to a successor depositary appointed by AmSouth. Except as
described above, DTC may not sell, assign, transfer or otherwise convey any
beneficial interest in a Global Security evidencing all or part of any
Securities unless such beneficial interest is in an amount equal to an
authorized denomination for such Securities.
PLAN OF DISTRIBUTION
AmSouth may sell Securities to or through underwriters to be designated from
time to time, and also may sell Securities directly to other purchasers or
through agents. The distribution of Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
The Securities will be new issues of securities with no established trading
market. It has not presently been established whether the underwriters, if
any, of such Securities will make a market in such Securities. If a market in
such Securities is made by any such underwriters, such market making may be
discontinued at any time without notice. No assurance can be given as to the
liquidity of the trading market for such Securities.
In connection with the sale of Securities, underwriters may receive
compensation from AmSouth or from purchasers of Securities for whom they may
act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act
as agents. Underwriters, dealers and agents that participate in the
distribution of Securities may be deemed to be underwriters, and any discounts
or commissions received by them from AmSouth and any profit on the resale of
Securities by them may be deemed underwriting discounts and commissions, under
the Securities Act. Any such underwriter or agent will be identified, and any
such compensation received from AmSouth will be described, in the applicable
Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, the
obligations of any such underwriters to purchase Securities will be subject to
certain conditions precedent, and each of the underwriters with respect to a
sale of Securities will be obligated to purchase all of its Securities if any
are purchased. Unless otherwise indicated in the applicable Prospectus
Supplement, any such agent involved in the offer and sale of the Securities in
respect of which this Prospectus is being delivered will be acting on a "best
efforts" basis for the period of its appointment.
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<PAGE>
Under agreements that may be entered into by AmSouth, underwriters, agents
and their controlling persons who participate in the distribution of
Securities may be entitled to indemnification by AmSouth against certain
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable Prospectus Supplement, AmSouth will
authorize dealers or other persons acting as AmSouth's agents to solicit
offers by certain institutions to purchase any Securities from AmSouth
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by AmSouth. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
any Securities will not at the time of delivery be prohibited under the laws
of the jurisdiction to which such purchaser is subject. The underwriters and
such other agents will not have any responsibility in respect of the validity
or performance of such contracts.
If AmSouth offers and sells Securities directly to a purchaser or purchasers
in respect of which this Prospectus is delivered, purchasers involved in the
reoffer or resale of such Securities, if such purchasers in respect thereof
may be deemed to be underwriters as that term is defined in the Securities
Act, will be named and the terms of such reoffers or resales will be set forth
in the applicable Prospectus Supplement. Such purchasers may then reoffer and
resell such Securities to the public or otherwise at varying prices to be
determined by such purchasers at the time of resale or as otherwise described
in the applicable Prospectus Supplement. Purchasers of Securities directly
from AmSouth may be entitled under agreements that they may enter into with
AmSouth to indemnification by AmSouth against certain liabilities, including
liabilities under the Securities Act, and may engage in transactions with or
perform services for AmSouth in the ordinary course of their business or
otherwise.
Underwriters or agents and their associates may be customers of (including
borrowers from), engage in transactions with, and/or perform services for,
AmSouth and its subsidiaries, or either Trustee, in the ordinary course of
business.
VALIDITY OF THE SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of any Securities offered hereby will be passed upon for AmSouth by
its counsel, Sullivan & Cromwell, New York, New York.
EXPERTS
The consolidated financial statements of AmSouth included in AmSouth's
Annual Report (Form 10-K) for the year ended December 31, 1997, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
With respect to the unaudited consolidated interim financial information for
the three-month periods ended March 31, 1997 and March 31, 1998, incorporated
by reference in this Prospectus, Ernst & Young LLP have reported that they
have applied limited procedures in accordance with professional standards for
a review of such information. However, their separate report, included in
AmSouth's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998,
and incorporated herein by reference, states that they did not audit and they
do not express an opinion on that interim financial information. Accordingly,
the degree of reliance on their report on such information should be
restricted considering the limited nature of the review procedures applied.
The independent auditors are not subject to the liability provisions of
Section 11 of the Securities Act for their report on the unaudited interim
financial information because the report is not a "report" or a "part" of the
Registration Statement prepared or certified by the auditors within the
meaning of Sections 7 and 11 of the Securities Act.
29
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
SEC registration fee............................................. $147,500
Trustees' fees and expenses...................................... 50,000*
Printing and engraving fees...................................... 100,000*
Legal fees and expenses.......................................... 50,000*
Blue Sky fees and expenses....................................... 10,000*
Accounting fees and expenses..................................... 50,000*
Depositary's fees and expenses................................... 10,000*
Warrant agent's fees and expenses................................ 10,000*
Transfer agent and registrar fees and expenses................... 10,000*
Rating agency fees............................................... 100,000*
Miscellaneous.................................................... 62,500*
--------
Total.......................................................... $600,000*
========
</TABLE>
--------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Delaware General Corporation Law, a corporation is permitted to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that the person is or
was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise (including employee benefit plans), against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with such action, suit or
proceeding if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the person's conduct was unlawful. However,
indemnity may not be granted in respect of a claim, issue or matter as to
which a person has been adjudged to be liable to the corporation unless and
only to the extent that the Delaware Court of Chancery or the court in which
the action or suit was brought has determined upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses as the Court of Chancery or such other court deems proper. Expenses
(including attorneys' fees) incurred by an officer or director in defending
any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding if the corporation receives an undertaking
by or on behalf of the director or officer to repay such advances if it is
ultimately determined that the director or officer is not entitled to
indemnification for such expenses. Expenses may be advanced to any former
officer or director or to any other employee or agent of the corporation on
such terms and conditions as the corporation deems appropriate.
If a present or former director or officer of a corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding described in the preceding paragraph, or in defense of any claim,
issue or matter therein, the corporation is required to indemnify such person
against expenses (including attorney's fees) actually and reasonably incurred
by such person in connection therewith.
The Registrant's Restated Certificate of Incorporation, as amended, provide
for indemnification and exculpation of the directors and officers of the
Registrant to the extent permitted under the Delaware General Corporation Law
as described above.
II-1
<PAGE>
The Registrant maintains a directors' and officers' liability policy to
cover the Registrant and its directors and officers for amounts, subject to
policy limits, that the Registrant may be required to pay by way of
indemnification to its directors or officers under its charter or by-laws or
otherwise and for the protection of individual directors and officers from
losses and liabilities for which they may not be indemnified by the
Registrant.
The forms of Underwriting Agreement included as Exhibits 1(a) and 1(b)
hereto provide for indemnification of directors, certain officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933, as amended (the "Securities
Act").
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S> <C>
1(a) Form of Underwriting Agreement (for Debt Securities and
Warrants).
1(b) Form of Underwriting Agreement (for Common Stock, Preferred
Stock and Depositary Shares).
*4(a) Restated Certificate of Incorporation, as amended, of the
Registrant (incorporated by reference to Exhibit 3-b to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1993, file no. 1-7476).
*4(b) By-laws of the Registrant (incorporated by reference to Exhibit
3-b to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1997, file no. 1-7476).
*4(c) Stockholder Protection Rights Agreement, dated as of December
18, 1997, between the Registrant and AmSouth Bank, as Rights
Agent (incorporated by reference to Exhibit 1 to the
Registrant's Registration Statement on Form 8-A (filed with the
Securities and Exchange Commission in Washington, D.C., file no.
1-7476)).
4(d) Specimen certificate representing Common Stock.
4(e) Form of Certificate of Designation with respect to Preferred
Stock.
4(f) Form of specimen certificate representing Preferred Stock.
4(g) Form of Deposit Agreement.
4(h) Form of specimen Depositary Receipt (filed by reference to
Exhibit A to Exhibit 4(g)).
4(i) Form of Senior Indenture.
4(j) Form of Senior Debt Security (filed by reference to Article Two
of Exhibit 4(i)).
4(k) Subordinated Indenture, dated as of May 25, 1994, between the
Registrant and Bankers Trust Company, as Trustee.
4(l) Form of Supplemental Indenture to Subordinated Indenture.
4(m) Form of Subordinated Debt Security (filed by reference to
Article Two of Exhibit 4(k)).
4(n) Form of Warrant Agreement.
4(o) Form of Warrant Certificate (filed by reference to Exhibit A to
Exhibit 4(n)).
5 Opinion of Sullivan & Cromwell as to the validity of the
Securities.
12(a) Statement regarding computation of ratio of earnings to fixed
charges.
12(b) Statement regarding computation of earnings to fixed charges and
preferred stock dividends.
15 Letter regarding unaudited interim financial information.
23(a) Consent of Sullivan & Cromwell (filed by reference to Exhibit
5).
23(b) Consent of Ernst & Young LLP
24 Powers of Attorney.
25 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Bankers Trust Company with
respect to Subordinated Debt Securities.
</TABLE>
- --------
* Incorporated by reference.
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee in respect of the
Senior Indenture to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF BIRMINGHAM, STATE OF ALABAMA, ON THE 13TH DAY OF AUGUST, 1998.
AMSOUTH BANCORPORATION
C. Dowd Ritter*
By
----------------------------------
(C. DOWD RITTER)
(CHAIRMAN OF THE BOARD, PRESIDENT
AND
CHIEF EXECUTIVE OFFICER AND A
DIRECTOR)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS AMENDMENT
HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED ALL ON THE
13TH DAY OF AUGUST, 1998.
SIGNATURES TITLE
C. Dowd Ritter* Chairman of the Board, President and
- ------------------------------------ Chief Executive Officer and a
(C. DOWD RITTER) Director (Principal Executive
Officer)
Senior Executive Vice President and
/s/ Sloan D. Gibson Chief Financial Officer (Principal
- ------------------------------------ Financial Officer)
(SLOAN D. GIBSON)
Executive Vice President and
/s/ Robert R. Windelspecht Controller (Principal Accounting
- ------------------------------------ Officer)
(ROBERT R. WINDELSPECHT)
J. Harold Chandler* A Director
- ------------------------------------
(J. HAROLD CHANDLER)
A Director
- ------------------------------------
(JAMES E. DALTON, JR.)
Rodney C. Gilbert* A Director
- ------------------------------------
(RODNEY C. GILBERT)
Elmer B. Harris* A Director
- ------------------------------------
(ELMER B. HARRIS)
A Director
Victoria B. Jackson*
- ------------------------------------
(VICTORIA B. JACKSON)
II-4
<PAGE>
SIGNATURES TITLE
Ronald L. Kuehn, Jr*. A Director
- -------------------------------------
(RONALD L. KUEHN, JR.)
James R. Malone* A Director
- -------------------------------------
(JAMES R. MALONE)
Francis A. Newman* A Director
- -------------------------------------
(FRANCIS A. NEWMAN)
Claude B. Nielsen* A Director
- -------------------------------------
(CLAUDE B. NIELSEN)
A Director
- -------------------------------------
(BENJAMIN F. PAYTON, PH.D.)
Herbert A. Sklenar* A Director
- -------------------------------------
(HERBERT A. SKLENAR)
/s/ Carl L. Gorday
*By:
----------------------------------
(CARL L. GORDAY)
ATTORNEY-IN-FACT
II-5
<PAGE>
EXHIBIT 1(a)
[Form of Underwriting Agreement (for Debt Securities and Warrants)]
AMSOUTH BANCORPORATION
Underwriting Agreement
[Date]
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AmSouth Bancorporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified in
Schedule I hereto (the "[Debt] Securities"), to be issued under an indenture,
dated as of _________________ (the "Indenture"), between the Company and
______________________, as trustee (the "Trustee"). [The Company also proposes
to issue warrants (the "Warrants") to purchase the aggregate principal amount
listed in Schedule I hereto of the debt securities identified in Schedule I
hereto (the "Warrant Securities"). The Warrants, if any, are to be issued
pursuant to the Warrant Agreement listed in Schedule I hereto (the "Warrant
Agreement") between the Company and the Warrant Agent listed in Schedule I
hereto (the "Warrant Agent"). The Debt Securities and the Warrants, if any, are
hereinafter referred to as the "Purchased Securities". The Purchased Securities
and the Warrant Securities are hereinafter referred to as the "Securities".] If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securi ties and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and
<PAGE>
may have used a Preliminary Final Prospectus (as defined below), each
of which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering (as defined below) and, although the
Basic Prospectus (as defined below) may not include all the information
with respect to the Securities and the offering thereof required by the
Act and the rules thereunder to be included in the Final Prospectus (as
defined below), the Basic Prospectus includes all such information
required by the Act and the rules thereunder to be included therein as
of the Effective Date (as defined below). The Company will file with
the Commission pursuant to Rules 415 and 424(b) a final supplement to
the form of prospectus included in such registration statement relating
to the Securities and the offering thereof. As filed, such final
prospectus supplement shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior
to the Execution Time (as defined below) or, to the extent not
completed at the Execution Time, shall contain only such additional
information (beyond that contained in the Basic Prospectus and any
Preliminary Final Prospectus) and other changes as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined below), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and
on the Closing Date, the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture Act and the rules
thereunder; and on the date of filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement that constitutes the Statement of Eligibility and Qualifica
tion (Form T-1) under the Trust Indenture Act of the Trustee or any
other trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for use in connection
-2-
<PAGE>
with the preparation of the Registration Statement or any amendment
thereto, or of the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus or any amendment or supplement thereto.
(c) The terms that follow, when used in this
Agreement, shall have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred
to in paragraph (a) above contained in the Registration
Statement at the Effective Date.
"Delayed Offering" shall mean an offering of
securities pursuant to Rule 415 which does not commence
promptly after the effective date of a registration statement,
with the result that only information required pursuant to
Rule 415 need be included in such registration statement at
the effective date thereof with respect to the securities so
offered.
"Effective Date" shall mean each date that the
Registration Statement or any post-effective amendment or
amendments thereto became or become effective.
"Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties
hereto.
"Final Prospectus" shall mean the prospectus
supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together
with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus
which describes the Securities and the offering thereof and is
used prior to filing of the Final Prospectus.
"Registration Statement" shall mean the registration
statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as
amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective prior to
the Closing Date, shall also mean such registration statement
as so amended.
"Rule 415", "Rule 424" and "Regulation S-K" refer to
such rules or regulation under the Act.
-3-
<PAGE>
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act or pursuant to Rule 411 under the Act, in each
case on or before the Effective Date or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein
by reference.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price set forth in Schedule I hereto
the principal amount of the [Purchased] Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of [Purchased] Securities pursuant to delayed delivery
arrangements, the respective principal amounts of [Purchased] Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective amounts of Contract Securities (as defined below) determined as
provided below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be purchased
pursuant to Delayed Delivery Contracts as hereinafter provided are herein called
"Contract Securities".
(b) If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase [Purchased] Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Schedule III hereto but with such changes therein
as the Company may authorize or approve. The Underwriters will endeavor to make
such arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
[Purchased] Securities for which Delayed Delivery Contracts are made. Delayed
Delivery Contracts are to be with institutional investors, including commercial
and savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all cases where sales of Contract Securities arranged by
the Underwriters have been approved by the Company but, except as the Company
may otherwise agree, each such Delayed Delivery Contract must be for not less
than the minimum principal
-4-
<PAGE>
amount of [Purchased] Securities set forth in Schedule I hereto and the
aggregate principal amount of Contract Securities may not exceed the maximum
aggregate principal amount set forth in Schedule I hereto. The Underwriters will
not have any responsibility in respect of the validity or performance of Delayed
Delivery Contracts. The principal amount of [Purchased] Securities to be
purchased by each Underwriter as set forth in Schedule II hereto shall be
reduced by an amount which shall bear the same proportion to the total principal
amount of Contract Securities as the principal amount of [Purchased] Securities
set forth opposite the name of such Underwriter bears to the aggregate principal
amount set forth in Schedule II hereto, except to the extent that you determine
that such reduction shall be otherwise than in such proportion and so advise the
Company in writing; provided, however, that the total principal amount of
[Purchased] Securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule II hereto less the aggregate
principal amount of Contract Securities.
3. Delivery and Payment.
(a) Delivery of and payment for the Underwriters' Securities shall be
made on the date and at the time specified in Schedule I hereto, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 8 hereof (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company by wire transfer payable in same day funds
to one or more accounts specified in writing by the Company at least one
business day in advance of the Closing Date. Delivery of the Underwriters'
Securities shall be made at the offices of [Sullivan & Cromwell, 125 Broad
Street, New York, New York 10004]. Certificates for the Underwriters' Securities
shall be registered in such names and in such denominations as the
Representatives may request not less than three full business days in advance of
the Closing Date.
(b) The Company agrees to have the Underwriters' Securities available
for inspection, checking and packaging by the Representatives in New York, New
York, not later than 1:00 p.m., New York time, on the business day prior to the
Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the
-5-
<PAGE>
Final Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed. The Company will promptly
advise the Representatives (i) when the Final Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (ii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (iv) 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 (v) of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose. 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
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then 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 the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will prepare and file
with the Commission, subject to the second sentence of paragraph (a) of
this Section 4, an amendment or supplement that will correct such
statement or omission or effect such compliance, provided that any such
amendment or supplement shall be made at the expense of the requesting
Underwriter if such Underwriter's request for such amendment or
supplement is received by the Corporation 90 days or more following the
Closing Date.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act
(including pursuant to Rule 158 under the Act).
(d) The Company will furnish to the Representatives, without
charge, a copy of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The
-6-
<PAGE>
Company will pay the expenses of printing or other production of all
such documents relating to the offering.
[If applicable: (e) The Company will arrange, in cooperation
with the Underwriters, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as is
required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.]
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company, that have a maturity in excess of one year
from the date of issue and that are substantially similar to the
Securities (other than the Securities).
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time 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:
(a) The Final Prospectus, and any supplement thereto, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion or opinions of Carl L. Gorday, Esq., Assistant General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated or
organized and is validly existing in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction where the ownership of its
properties or the character of its activities requires such
qualification, except to the extent that any
-7-
<PAGE>
failure to so qualify would not have a material adverse effect
on the business, operations or financial condition of the
Company and its subsidiaries considered as a whole, and the
Company is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended;
(ii) the [Purchased] Securities conform in all
material respects to the description thereof contained in the
Final Prospectus under the caption "[Description of
Securities]";
(iii) this Agreement, any Delayed Delivery Contracts,
the Indenture, the Debt Securities [the warrants and the
Warrant Agreement] have been duly authorized, executed and
delivered by the Company, and the terms of the Securities have
been established in conformity with the provisions of the
Indenture [or the Warrant Agreement, as the case my be];
[(iv) authorization for the listing of the [Debt]
Securities on the New York Stock Exchange has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the [Purchased] Securities with such
securities exchange and such counsel has no reason to believe
that the [Purchased] Securities will not be authorized for
listing, subject to official notice of issuance and evidence
of satisfactory distribution;]
(v) to the best of such counsel's knowledge, 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 Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus under the caption "Certain Regulatory
Considerations" [as supplemented under the caption "Recent
Developments" in the Final Prospectus,] and in the Company's
Annual Report on Form 10-K, incorporated by reference in the
Final Prospectus, under the caption "Supervision and
Regulation" or describing therein any legal proceedings or
material contracts or agreements relating to the Company or
any of its subsidiaries fairly summarize such matters;
-8-
<PAGE>
(vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus and
the Final Prospectus, and any supplements thereto, pursuant to
Rule 424(b), has been made in the manner and within the time
period required by Rule 424(b); to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial and statistical
information contained or incorporated therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the Exchange Act and the respective rules thereunder; and
such counsel has no reason to believe that at the Effective
Date the Registration Statement 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, at the date of the
prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time and at
the Closing Date, the Final Prospectus contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made misleading; provided
that such counsel need not express any opinion as to the
statement of the eligibility and qualification of the Trustee
or any other trustee under the Indenture;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the [Purchased] Securities by the Underwriters; and
(viii) neither the issue and sale of the Securities,
nor compliance by the Company with the provisions of the
[Purchased] Securities, the Indenture, [the Warrant
Agreement,] this Agreement or any Delayed Delivery Contracts,
nor the consummation by the Company of any of the transactions
therein contemplated nor the fulfillment by the Company of the
terms thereof will conflict with, result in a breach of, or
constitute a default under (1) the charter or by-laws of the
Company, (2) the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or
any of its subsidiaries is a party, or by which it is bound,
(3) any law or regulation known to such counsel to be
applicable to the Company or any of its subsidiaries, or (4)
any order known to such
-9-
<PAGE>
counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company or any of its subsidiaries; provided that
such counsel need not express any opinion as to state
securities laws.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Alabama, the General Corporation Law of the State of
Delaware and the federal laws of the United States, to the extent
specified in such opinion, upon the opinion of other counsel of good
standing believed by such counsel to be reliable and who are
satisfactory to the Underwriters, (B) as to certain other matters, on
certificates of responsible officers of the Company, public officials
and others deemed by such counsel to be responsible, and (C) with
respect to the opinions set forth in paragraphs (vii), (viii)(1) and
(viii)(3) on the opinion of Sullivan & Cromwell with respect to matters
contained in such opinion but only with respect to the Federal laws of
the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware, subject to all limitations
and qualifications set forth in such opinion. References to the Final
Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion or opinions of Sullivan & Cromwell, special counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware;
(ii) the Indenture has been duly qualified under the
Trust Indenture Act; the [Debt] Securities [and the Warrants]
have been duly authenticated, issued and delivered; the
Indenture [, the Warrant Agreement] [and] [,] the Debt
Securities [and the Warrants] constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; [and the
Warrant Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions
of the Indenture and issued and delivered pursuant to the
Warrant Agreement, will constitute valid and legally binding
obligations of the Company enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar
-10-
<PAGE>
laws of general applicability relating to or affecting
creditors' rights and to general equity principles]; and
(iii) the Registration Statement, as of the Effective
Date, and the Final Prospectus, as of the date of the
prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time,
appeared on their face to be appropriately responsive, in all
material respects relevant to the offering of the Securities,
to the requirements of the Act, the Trust Indenture Act and
the applicable rules and regulations of the Commission
thereunder; provided that such counsel need not express any
opinion or belief as to the financial statements or other
financial data contained in the Registration Statement or the
Final Prospectus, or as to the statement of the eligibility
and qualification of the Trustee or any other trustee under
the Indenture.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York, the General Corporation Law of the State of
Delaware and the federal laws of the United States, to the extent
specified in such opinion, upon the opinion of Carl L. Gorday, Esq.,
and (B) as to certain other matters, on certificates of responsible
officers of the Company, public officials and others deemed by such
counsel to be responsible. References to the Final Prospectus in this
paragraph (c) include any supplements thereto at the Closing Date.
In addition, such counsel shall state that they have
participated in discussions with representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Underwriters and counsel for the Underwriters at
which the contents of the Registration Statement and the Final
Prospectus and related matters were discussed, and, although such
counsel have not independently verified and assume no responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement and the Final Prospectus, nothing that
came to such counsel's attention in the course of such procedures has
caused such counsel to believe that, insofar as relevant to the
offering of the Securities, the Registration Statement, as of the
Effective Date, 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
Final Prospectus, as of the date of the prospectus supplement relating
to the Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel need not express
any opinion or belief as to the financial statements or other financial
data
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<PAGE>
contained in the Registration Statement or Final Prospectus, or as to
the statement of the eligibility and qualification of the Trustee or
any other trustee under the Indenture.
(d) The Representatives shall have received from counsel for
the Underwriters an opinion or opinions, dated the Closing Date, as to
the matters set forth in Section 5(c) above, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate or certificates of the Company, signed by the President,
Senior Executive Vice President, Executive Vice President, Senior Vice
President or Vice President, and the Chief Financial Officer, Chief
Accounting Officer, Treasurer or Head of Corporate Finance of the
Company, dated the Closing Date, to the effect that the signers of such
certificate or certificates have examined the Registration Statement,
the Final Prospectus, any supplement to the Final 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 Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(f) At the Closing Date, Ernst & Young, L.L.P. shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the
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<PAGE>
respective applicable published rules and regulations thereunder and
stating in effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedules
included or incorporated in the Registration Statement and the
Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial information made available by the Company
and its subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited interim financial
statements as indicated in their reports incorporated in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an audit in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive and
audit committees of the Company; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Final Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any
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<PAGE>
changes, at a specified date not more than five
business days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or
capital stock of the Company or any decreases in the
stockholders' equity of the Company as compared with
the amounts shown on the most recent consolidated
balance sheet included or incorporated in the
Registration Statement and the Final Prospectus, or
for the period from the date of the most recent
financial statements included or incorporated in the
Registration Statement and the Final Prospectus to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year, in net interest income, net interest
income after provision for possible loan losses,
income before taxes or total or per share amounts of
net income of the Company and its subsidiaries,
except in all instances for changes or decreases set
forth in such letter, in which case the letter shall
be accompanied by an explanation by the Company as to
the significance thereof unless said explanation is
not deemed necessary by the Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6, 7 and 11 of the Company's
Annual Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in
the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated
in the Company's Quarterly Reports on Form 10-Q, incorporated
in the Registration Statement and the Final Prospectus, agrees
with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
-14-
<PAGE>
References to the Final Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereto) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 5 or (ii) 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 clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) and no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities.
(i) 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.
(j) The Company shall have accepted Delayed Delivery Contracts
in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
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,
this Agreement and all obligations of the Underwriters hereunder may be canceled
at the Closing Date by the Representatives. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed in
writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the
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<PAGE>
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange 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 Act, the Exchange 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 as originally filed or in any amendment thereto, or
in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment 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 Company shall 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 (A) 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 (B) contained in the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or any
other Trustee; or (ii) the Company shall not be liable to any Underwriter (or
any person who controls any Underwriter) under this subsection (a) with respect
to the Basic Prospectus or any Preliminary Final Prospectus to the extent that
(x) any such loss, claim, damage or liability results from the fact that such
Underwriter sold Securities to a person as to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the Final
Prospectus (excluding documents incorporated by reference) or of the Final
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) if the untrue statement or omission of a material fact contained in
the Basic Prospectus or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as amended or supplemented), or (y)
any such loss, claim, damage or liability of such Underwriter was caused by a
defect in the Final Prospectus (as then amended or supplemented) delivered to
such purchaser after the period referred to in Section 4(b) of this Agreement
and such defect would not have existed before the expiration of such period.
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 Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any Underwriter may otherwise have.
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<PAGE>
(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 failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party 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, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action, or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such
-17-
<PAGE>
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit or
proceeding.
(d) If the indemnity provided in paragraph (a) or (b) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions (before deducting expenses), in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriters. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) 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
either the Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange 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 the
applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters
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<PAGE>
shall be obligated severally to take up and pay for (in the respective
proportions which the amount of Securities set forth opposite their names in
Schedule II hereto bears to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities that the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that if the aggregate amount of Securities that the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate amount of Securities set forth in Schedule II hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. If any Underwriter shall default as set forth in this Section 8 and
this Agreement shall not be terminated as a result of such default, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by Federal or State authorities in New York or Alabama, or (iii) there shall
have occurred any outbreak or material escalation of hostilities involving the
United States, or the declaration by the United States of a national emergency
or war or other calamity or crisis, the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
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 Securities. The provisions of
Sections 6 and 7 hereof shall survive the termination or cancellation of this
Agreement.
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<PAGE>
11. Notices. All communications hereunder must be in writing and shall
be effective only on receipt, and, if sent to the Representatives, must be
mailed, delivered or telecopied and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, must be mailed, delivered or
telecopied and confirmed to it at AmSouth Bancorporation, AmSouth-Sonat Tower,
1900 Fifth Avenue North, Birmingham, AL 35203, Attention: General Counsel
(Telefax (205) 583-4497).
12. Successors. This Agreement shall inure to the benefit of and be
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.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
AMSOUTH BANCORPORATION
By:_______________________
Name:
Title:
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<PAGE>
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[NAMES OF REPRESENTATIVES]
By: [NAME OF LEAD REPRESENTATIVE]
By:________________________
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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<PAGE>
SCHEDULE I
Underwriting Agreement dated ____________ __,_____
Registration Statement No. 333-______
Representative(s) (including address for notices) :
Title, Purchase Price and Description of Debt Securities:
Title:
Principal amount:
Price to public (include accrued
interest or amortization, if any):
Purchase price to Underwriters (including
accrued interest or amortization, if any):
Maturity:
Denominations:
Sinking fund provisions:
Redemption provisions:
Interest rate:
Interest payment dates:
Other provisions:
Title and Description of Warrants (if any):
Title:
Warrant Agreement:
Warrant Agent:
<PAGE>
Aggregate number:
Exercise Date:
Principal amount of Warrant
Securities issuable per Warrant:
Redemption provisions:
Other provisions:
Title and Description of Warrant Securities (if any):
Title:
Principal amount:
Price to public (include accrued
interest or amortization, if any):
Purchase price to Underwriters (including
accrued interest or amortization, if any):
Maturity:
Denominations:
Sinking fund provisions:
Redemption provisions:
Interest rate:
Interest payment dates:
Other provisions:
Closing Date, Time and Location:
Method of Payment:
Type of Offering:
<PAGE>
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal
amount of all contracts: $
Modification of items to be covered by the letter from Ernst & Young, L.L.P.
delivered pursuant to Section 5(g) at the Closing Date:
<PAGE>
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
- ------------ ----------------
$
-----------------
Total...................................... $
=================
<PAGE>
SCHEDULE III
Delayed Delivery Contract
[Date]
[Insert name and address
of lead Representative]
Ladies and Gentleman:
The undersigned hereby agrees to purchase from AmSouth Bancorporation,
a Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned, on ___________, 19__ (the "Delivery Date"), $___________ principal
amount of the Company's [Title of Securities] (the "Securities") offered by the
Company's Prospectus dated ___________, 19__, and related Prospectus Supplement
dated ___________, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of ___% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ___________,
19__, to the date of payment and delivery, and on the further terms and
conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before 11:00 a.m., New York time, on the Delivery Date to or upon the
order of the Company by wire transfer payable in same day funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the under signed of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither the undersigned nor the Company shall incur any liability by reason
of the failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on the
date hereof, shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters
<PAGE>
(the "Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale to
the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect. The obligation of the undersigned
to take delivery of and make payment for the Securities, and the obligation of
the Company to cause the Securities to be sold and delivered, shall not be
affected by the failure of any purchaser to take delivery of and make payment
for the Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other and any purported
assignment without such consent shall be void.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
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<PAGE>
This agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
..................................
(Name of Purchaser)
By................................
(Signature and Title of Officer)
..................................
(Address)
Accepted:
AMSOUTH BANCORPORATION
By........................
(Authorized Signature)
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<PAGE>
EXHIBIT 1(b)
[Form of Underwriting Agreement (for Common Stock and Preferred Stock)]
AMSOUTH BANCORPORATION
Underwriting Agreement
[Date]
New York, New York
To the Representatives
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AmSouth Bancorporation, a Delaware corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the number of shares identified in Schedule I hereto of
[common stock, par value $1.00 per share (the "Common Stock"),] [[designation of
series of preferred], without par value (the "Preferred Stock"),] of the Company
(the "Firm Securities"). If so indicated on Schedule I hereto, the Company also
proposes to grant to the Underwriters an option to purchase up to the number of
additional shares of Common Stock, if any, identified in Schedule I hereto (the
"Optional Securities"). The Firm Securities and the Optional Securities, if any,
are hereinafter referred to as the "Securities". If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in Schedule I hereto,
then the terms "Underwriters" and "Representatives", as used herein, shall each
be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof:
(a) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and has filed
with the Securi ties and Exchange Commission (the "Commission") a
registration statement (the file number of which is set forth in
Schedule I hereto) on such Form, including a basic prospectus, for
registration under the Act of the offering and sale of the Securities.
The Company may have filed one or more amendments thereto, and may have
used a Preliminary Final Prospectus (as defined below), each of which
has previously been furnished to you. Such registration statement, as
so amended, has become effective. The offering of the Securities is a
Delayed Offering (as defined below) and, although the Basic Prospectus
(as defined below) may not
<PAGE>
include all the information with respect to the Securities and the
offering thereof required by the Act and the rules thereunder to be
included in the Final Prospectus (as defined below), the Basic
Prospectus includes all such information required by the Act and the
rules thereunder to be included therein as of the Effective Date (as
defined below). The Company will file with the Commission pursuant to
Rules 415 and 424(b) a final supplement to the form of prospectus
included in such registration statement relating to the Securities and
the offering thereof. As filed, such final prospectus supplement shall
include all required information with respect to the Securities and the
offering thereof and, except to the extent the Representatives shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time (as
defined below) or, to the extent not completed at the Execution Time,
shall contain only such additional information (beyond that contained
in the Basic Prospectus and any Preliminary Final Prospectus) and other
changes as the Company has advised you, prior to the Execution Time,
will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and
when the Final Prospectus is first filed in accordance with Rule 424(b)
and on the Closing Date (as defined below), the Final Prospectus (and
any supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the date of filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to the Company
by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the
Registration Statement or any amendment thereto, or of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus or
any amendment or supplement thereto.
(c) The terms that follow, when used in this Agreement, shall
have the meanings indicated.
"Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date.
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<PAGE>
"Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered.
"Effective Date" shall mean each date that the Registration
Statement or any post-effective amendment or amendments thereto became
or become effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the Execution Time
and, in the event any post-effective amendment thereto becomes
effective prior to the Closing Date, shall also mean such registration
statement as so amended.
"Rule 415", "Rule 424" and "Regulation S-K" refer to such
rules or regulation under the Act.
Any reference herein to the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed
under the Exchange Act or pursuant to Rule 411 under the Act, in each
case on or before the Effective Date or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus, as the case may be, deemed to be incorporated therein
by reference.
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<PAGE>
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, (a) the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price per share set forth in Schedule
I hereto the number of Firm Securities set forth opposite such Underwriter's
name in Schedule II hereto, and (b) in the event and to the extent that the
Underwriters shall exercise the election to purchase Optional Securities as
provided below, the Company agrees to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company, at
the purchase price per share set forth in Schedule I hereto, that portion of the
number of Optional Securities as to which such election shall have been
exercised (to be adjusted by you so as to eliminate fractional securities)
determined by multiplying such number of Optional Securities by a fraction the
numerator of which is the maximum number of Optional Securities that such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule II hereto and the denominator of which is the maximum
number of Optional Securities that all of the Underwriters are entitled to
purchase hereunder.
(b) The Company hereby grants to each of the Underwriters the right to
purchase at their election up to the number of Optional Securities set forth in
Schedule I hereto, at the purchase price per share set forth in Schedule I
hereto, for the sole purpose of covering over-allotments in the sale of the Firm
Securities. Any such election to purchase Optional Securities may be exercised
only by written notice from you to the Company, given within a period of 30
calendar days after the date of this Agreement and setting forth the aggregate
number of Optional Securities to be purchased and the date on which such
Optional Securities are to be delivered, as determined by you but in no event
earlier than the First Closing Date (as defined below) or, unless you and the
Company otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice.
3. Delivery and Payment.
(a) Delivery of and payment for the Firm Securities and the Optional
Securities (if the option provided for in Section 2(b) hereof shall have been
exercised on or before the third business day prior to the First Closing Date
(as defined below)) shall be made on the date and at the time specified in
Schedule I hereto, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8 hereof (such date
and time of delivery and payment for the Securities being herein called the
"First Closing Date"). Delivery of and payment for the Optional Securities (if
the option provided for in Section 2(b) hereof shall have been exercised after
the third business day prior to the First Closing Date) shall be made on the
date and at the time specified in Schedule I hereto, which date and time may be
postponed by agreement between the Representatives and the Company or as
provided in Section 8 hereof (such
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<PAGE>
date and time of delivery and payment for the Securities being herein called the
"Second Closing Date"). Each of the First Closing Date and the Second Closing
Date is referred to in this Agreement as a "Closing Date". Delivery of such
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same day funds to one or more accounts
specified in writing by the Company at least one business day in advance of the
Closing Date. Delivery of the Securities shall be made at the offices of
[Sullivan & Cromwell, 125 Broad Street, New York, New York 10004]. Certificates
for the Securities shall be registered in such names and in such denominations
as the Representatives may request not less than three full business days in
advance of the Closing Date.
(b) The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 p.m., New York time, on the business day prior to the applicable
Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any
Preliminary Final Prospectus) to the Basic Prospectus unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, the Company will
cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed. The Company
will promptly advise the Representatives (i) when the Final Prospectus,
and any supplement thereto, shall have been filed with the Commission
pursuant to Rule 424(b), (ii) when, prior to termination of the offer
ing of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Final Prospectus or for any additional information,
(iv) 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 (v) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. 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
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final
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<PAGE>
Prospectus as then 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 the
Registration Statement or supplement the Final Prospectus to comply
with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject
to the second sentence of paragraph (a) of this Section 4, an amendment
or supplement that will correct such statement or omission or effect
such compliance, provided that any such amendment or supplement shall
be made at the expense of the requesting Underwriter if such
Underwriter's request for such amendment or supplement is received by
the Corporation 90 days or more following the Closing Date.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act
(including pursuant to Rule 158 under the Act).
(d) The Company will furnish to the Representatives, without
charge, a copy of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of any Preliminary
Final Prospectus and the Final Prospectus and any supplement thereto as
the Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all such documents relating
to the offering.
[If applicable: (e) The Company will arrange, in cooperation
with the Underwriters, for the qualification of the Securities for sale
under the laws of such jurisdictions as the Representatives may
designate, will maintain such qualifications in effect so long as is
required for the distribution of the Securities and will arrange for
the determination of the legality of the Securities for purchase by
institutional investors, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction.]
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any other shares of [Common
Stock] [Preferred Stock], or any securities convertible into, or
exchangeable for, shares of [Common Stock] [Preferred Stock]; provided,
however, that the Company may issue and sell [Common Stock] [Preferred
Stock] pursuant to any employee benefit or dividend reinvestment plan
of the Company in effect at the Execution Time and the Company may
issue [Common Stock]
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<PAGE>
[Preferred Stock] issuable upon the conversion or exchange of
convertible or exchangeable securities or the exercise of rights,
options or warrants outstanding as of the Execution Time.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Firm Securities or the Optional Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein as of the Execution Time
and the applicable 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:
(a) The Final Prospectus, and any supplement thereto, shall
have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion or opinions of Carl L. Gorday, Esq., Assistant General
Counsel of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated or
organized and is validly existing in good standing under the
laws of the State of Delaware, with full corporate power and
authority to own its properties and conduct its business as
described in the Final Prospectus, is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction where the ownership of its
properties or the character of its activities requires such
qualification, except to the extent that any failure to so
qualify would not have a material adverse effect on the
business, operations or financial condition of the Company and
its subsidiaries considered as a whole, and the Company is
duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended;
(ii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; the capital stock of
the Company conforms in all material respects to the
description thereof contained in the Final Prospectus; the
Securities have been duly and validly authorized and issued,
and are fully paid and nonassessable; the form of the
certificate for the [Common Stock] [Preferred Stock] complies
as to form in all material respects with the General
Corporation Law of the State of Delaware [and the requirements
of the New York Stock Exchange]; the holders of
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<PAGE>
outstanding shares of capital stock of the Company are not
entitled to any preemptive or other rights to subscribe for
the Securities;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
[(iv) authorization for the listing of the Securities
on the New York Stock Exchange has been given, subject to
official notice of issuance and evidence of satisfactory
distribution, or the Company has filed a preliminary listing
application and all required supporting documents with respect
to the Securities with such securities exchange and such
counsel has no reason to believe that the Securities will not
be authorized for listing, subject to official notice of
issuance and evidence of satisfactory distribution;]
(v) to the best of such counsel's knowledge, 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 Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus under the caption "Certain Regulatory
Considerations" [as supplemented under the caption "Recent
Developments" in the Final Prospectus,] and in the Company's
Annual Report on Form 10-K, incorporated by reference in the
Final Prospectus, under the caption "Supervision and
Regulation" or describing therein any legal proceedings or
material contracts or agreements relating to the Company or
any of its subsidiaries fairly summarize such matters;
(vi) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus and
the Final Prospectus, and any supplements thereto, pursuant to
Rule 424(b), has been made in the manner and within the time
period required by Rule 424(b); to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statement and the Final Prospectus (other than
the financial statements and other financial and statistical
information contained or incorporated therein as to which such
counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act
and the
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<PAGE>
Exchange Act and the respective rules thereunder; and such
counsel has no reason to believe that at the Effective Date
the Registration Statement 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, at the date of the prospectus
supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time and at the
Closing Date, the Final Prospectus contains any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made misleading; provided
that such counsel need not express any opinion as to the
statement of eligibility and qualification of the Trustee or
any other trustee under the Indenture;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement except such as have been obtained under the Act and
such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution
of the Securities by the Underwriters; and
(viii) neither the issue and sale of the Securities,
nor compliance by the Company with the provisions of this
Agreement, nor the consummation by the Company of any of the
transactions herein contemplated nor the fulfillment by the
Company of the terms hereof will conflict with, result in a
breach of, or constitute a default under (1) the charter or
by-laws of the Company, (2) the terms of any indenture or
other agreement or instrument known to such counsel and to
which the Company or any of its subsidiaries is a party, or by
which it is bound, (3) any law or regulation known to such
counsel to be applicable to the Company or any of its
subsidiaries, or (4) any order known to such counsel to be
applicable to the Company or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or any
of its subsidiaries; provided that such counsel need not
express any opinion as to state securities laws.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of Alabama, the General Corporation Law of the State of
Delaware and the federal laws of the United States, to the extent
specified in such opinion, upon the opinion of other counsel of good
standing believed by such counsel to be reliable and who are
satisfactory to the Underwriters, (B) as to certain other matters, on
certificates of responsible officers of the Company, public officials
and others deemed by
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<PAGE>
such counsel to be responsible, and (C) with respect to the opinions
set forth in paragraphs (vii), (viii)(1) and (viii)(3), on the opinion
of Sullivan & Cromwell with respect to matters contained in such
opinion but only with respect to the Federal laws of the United States,
the laws of the State of New York and the General Corporation Law of
the State of Delaware, subject to all limitations and qualifications
set forth in such opinion. References to the Final Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives
the opinion or opinions of Sullivan & Cromwell, special counsel for the
Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Delaware;
(ii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus, and the Securities
have been duly authorized and validly issued and, when issued
and delivered to and paid for by the Underwriters pursuant to
this Agreement, will be fully paid and non-assessable; and
(iii) the Registration Statement, as of the Effective
Date, and the Final Prospectus, as of the date of the
prospectus supplement relating to the Securities that is first
filed pursuant to Rule 424(b) after the Execution Time,
appeared on their face to be appropriately responsive, in all
material respects relevant to the offering of the Securities,
to the requirements of the Act and the applicable rules and
regulations of the Commission thereunder; provided that such
counsel need not express any opinion or belief as to the
financial statements or other financial data contained in the
Registration Statement or the Final Prospectus.
In rendering such opinion or opinions, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the State of New York, the General Corporation Law of the State of
Delaware and the federal laws of the United States, to the extent
specified in such opinion, upon the opinion of Carl L. Gorday, Esq.,
and (B) as to certain other matters, on certificates of responsible
officers of the Company, public officials and others deemed by such
counsel to be responsible. References to the Final Prospectus in this
paragraph (c) include any supplements thereto at the Closing Date.
In addition, such counsel shall state that they have
participated in discussions with representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the
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<PAGE>
Underwriters and counsel for the Underwriters at which the contents of
the Registration Statement and the Final Prospectus and related matters
were discussed, and, although such counsel have not independently
verified and assume no responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement and
the Final Prospectus, nothing that came to such counsel's attention in
the course of such procedures has caused such counsel to believe that,
insofar as relevant to the offering of the Securities, the Registration
Statement, as of the Effective Date, 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 Final Prospectus, as of the date of the
prospectus supplement relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
such counsel need not express any opinion or belief as to the financial
statements or other financial data contained in the Registration
Statement or Final Prospectus.
(d) The Representatives shall have received from counsel for
the Underwriters an opinion or opinions, dated the Closing Date, as to
the matters set forth in Section 5(c) above, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate or certificates of the Company, signed by the President,
Senior Executive Vice President, Executive Vice President, Senior Vice
President or Vice President, and the Chief Financial Officer, Chief
Accounting Officer, Treasurer or Head of Corporate Finance of the
Company, dated the Closing Date, to the effect that the signers of such
certificate or certificates have examined the Registration Statement,
the Final Prospectus, any supplement to the Final 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
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<PAGE>
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, except as set
forth in or contemplated in the Final Prospectus (exclusive of
any supplement thereto).
(f) At the Closing Date, Ernst & Young, L.L.P. shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the Representatives),
dated as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited consolidated
financial statements and financial statement schedules
included or incorporated in the Registration Statement and the
Final Prospectus and reported on by them comply in form in all
material respects with the applicable accounting requirements
of the Act and the Exchange Act and the related published
rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial information made available by the Company
and its subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited interim financial
statements as indicated in their reports incorporated in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an audit in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of
the meetings of the stockholders, directors and executive and
audit committees of the Company; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Final Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply in
form in all material respects with applicable
accounting requirements and with the published rules
and
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<PAGE>
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; or said unaudited financial statements are not
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited consolidated
financial statements included or incorporated in the
Registration Statement and the Final Prospectus; or
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or any
decreases in the stockholders' equity of the Company
as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Final
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year, in net interest income,
net interest income after provision for possible loan
losses, income before taxes or total or per share
amounts of net income of the Company and its
subsidiaries, except in all instances for changes or
decreases set forth in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Final Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or
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<PAGE>
statistical information derived from the general accounting
records of the Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and in Exhibit
12 to the Registration Statement, including the information
included or incorporated in Items 1, 2, 6, 7 and 11 of the
Company's Annual Report on Form 10-K, incorporated in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated in the Company's Quarterly Reports on Form 10-Q,
incorporated in the Registration Statement and the Final
Prospectus, agrees with the accounting records of the Company
and its subsidiaries, excluding any questions of legal
interpretation.
References to the Final Prospectus in this paragraph (f)
include any supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Registration Statement
(exclusive of any amendment thereto) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (f) of this Section 5 or (ii) 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 clause (i) or (ii) above, is, in
the judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery
of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act) and no such
organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating
of any of the Company's debt securities.
(i) 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,
this Agreement and all obligations of the Underwriters hereunder may be canceled
at the Closing Date by the
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<PAGE>
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof 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 incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange 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 Act, the Exchange 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 as originally filed or in any amendment thereto, or
in the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment 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 Company shall 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; (ii) the Company shall not be liable to any Underwriter (or any person
who controls any Underwriter) under this subsection (a) with respect to the
Basic Prospectus or any Preliminary Final Prospectus to the extent that (x) any
such loss, claim, damage or liability results from the fact that such
Underwriter sold Securities to a person as to whom there was not sent or given,
at or prior to the written confirmation of such sale, a copy of the Final
Prospectus (excluding documents incorporated by reference) or of the Final
Prospectus as then amended or supplemented (excluding documents incorporated by
reference) if the untrue statement or omission of a material fact contained in
the Basic Prospectus or any Preliminary Final Prospectus was
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<PAGE>
corrected in the Final Prospectus (or the Final Prospectus as amended or
supplemented), or (y) any such loss, claim, damage or liability of such
Underwriter was caused by a defect in the Final Prospectus (as then amended or
supplemented) delivered to such purchaser after the period referred to in
Section 4(b) of this Agreement and such defect would not have existed before the
expiration of such period. 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 Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information furnished to the Company by or on behalf of
such Underwriter through the Representatives specifically for inclusion in 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 failure to so notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party 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, (iii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the institution
of such action, or (iv) the indemnifying
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<PAGE>
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) If the indemnity provided in paragraph (a) or (b) of this Section 7
is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriters agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the Underwriters
may be subject in such proportion as is appropriate to reflect the relative
benefits received by the Company and by the Underwriters from the offering of
the Securities; provided, however, that in no case shall any Underwriter (except
as may be provided in any agreement among underwriters relating to the offering
of the Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the Securities purchased by such
Underwriter hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses), and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting discounts and
commissions (before deducting expenses), in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference to
whether any alleged untrue statement or omission relates to information provided
by the Company or the Underwriters. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) 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
either the Act or the Exchange Act shall have the same rights to contribution as
such Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange 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
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<PAGE>
contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the aggregate amount
of Securities set forth opposite the names of all the remaining Underwriters)
the Securities that the defaulting Underwriter or Underwriters agreed but failed
to purchase; provided, however, that if the aggregate amount of Securities that
the defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter or
the Company. If any Underwriter shall default as set forth in this Section 8 and
this Agreement shall not be terminated as a result of such default, the Closing
Date shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York Stock Exchange or trading in securities generally on the New York Stock
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by Federal or State authorities in New York or Alabama, or (iii) there shall
have occurred any outbreak or material escalation of hostilities involving the
United States, or the declaration by the United States of a national emergency
or war or other calamity or crisis, the effect of which on the financial markets
of the United States is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive of
any supplement thereto).
10. Representations and Indemnities to Survive. The respective
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
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<PAGE>
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 Securities. The provisions of Sections 6 and 7 hereof
shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder must be in writing and shall
be effective only on receipt, and, if sent to the Representatives, must be
mailed, delivered or telecopied and confirmed to them, at the address specified
in Schedule I hereto; or, if sent to the Company, must be mailed, delivered or
telecopied and confirmed to it at: AmSouth Bancorporation, AmSouth-Sonat Tower,
1900 Fifth Avenue North, Birmingham, AL 35203, Attention: General Counsel
(Telefax (205) 583-4497).
12. Successors. This Agreement shall inure to the benefit of and be
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.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. Counterparts. This Agreement may be executed by any one or more of
the parties hereto and thereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall
together constitute one and the same instrument.
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<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
AMSOUTH BANCORPORATION
By:_______________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[NAMES OF REPRESENTATIVES]
By: [NAME OF LEAD REPRESENTATIVE]
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
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<PAGE>
SCHEDULE I
Underwriting Agreement dated ____________ __,_____
Registration Statement No. 333-______
Representatives(s) (including address for notices):
Purchase Price per Share:
[Title and Description of Preferred Stock:]
Details of Over-Allotment Option:
Closing Date, Time and Location:
Method of Payment:
Type of Offering:
Modification of items to be covered by the letter from
Ernst & Young, L.L.P. delivered pursuant to Section 5(g)
at the Closing Date:
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<PAGE>
SCHEDULE II
Number of
Optional Securities
Total Number of to be Purchased
Firm Securities if Maximum
Underwriters to be Purchased Option Exercised
- ------------ --------------- ----------------
---------- ----------
Total
========== ==========
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<PAGE>
EXHIBIT 4(d)
NUMBER SHARES
COMMON STOCK COMMON STOCK
INCORPORATED UNDER THE LAWS THIS CERTIFICATE IS TRANSFERABLE IN
OF THE STATE OF DELAWARE BIRMINGHAM, ALA. OR NEW YORK, N.Y.
SEE REVERSE FOR
CERTAIN DEFINITIONS
[LOGO]
AMSOUTH BANCORPORATION
THIS CERTIFIES THAT CUSIP 032165 10 2
IS THE OWNER OF
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF THE PAR VALUE OF
$1.00 PER SHARE OF
AmSouth Bancorporation, transferable on the books of the Corporation by the
holder hereof in person or by duly authorized attorney upon surrender of this
certificate properly endorsed. This certificate is not valid until
countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures
of its duly authorized officers.
Dated:
COUNTERSIGNED AND REGISTERED:
AMSOUTH BANK
(BIRMINGHAM, ALA.)
TRANSFER AGENT
AND REGISTRAR
BY
/s/ Diane S. Masters /s/ C. Dowd Ritter
AUTHORIZED SIGNATURE SECRETARY CHAIRMAN OF THE BOARD
<PAGE>
Until the Separation Time (as defined in the Rights Agreement referred to
below), this certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement, dated as of December 18, 1997
(as such may be amended, supplemented, modified or replaced from time to time,
the "Rights Agreement"), between AmSouth Bancorporation (the "Company") and
AmSouth Bank, as Rights Agent, the terms of which are hereby incorporated
herein by reference and a copy of which is on file at the principal executive
offices of the Company. Under certain circumstances, as set forth in the Rights
Agreement, such Rights may be redeemed, may become exercisable for securities or
assets of the Company or securities of another entity, may be exchanged for
shares of Common Stock or other securities or assets of the Company, may expire,
may become void (if they are "Beneficially Owned" by an "Acquiring Person" or an
"Affiliate" or "Associate" thereof, as such terms are defined in the Rights
Agreement, or by any transferee of any of the foregoing) or may be evidenced by
separate certificates and may no longer be evidenced by this certificate. The
Company will mail or arrange for the mailing of a copy of the Rights Agreement
to the holder of this certificate without charge after the receipt of a written
request therefor.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--..........Custodian.........
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act.....................
in common (State)
Additional abbreviations may also be used though not in the above
list.
For value received, __________hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
___________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS,
INCLUDING ZIP CODE, OF ASSIGNEE)
___________________________________________________________________________
____________________________________________________________________ shares
of the capital stock represented by the within Certificate, and do
hereby irrevocably constitute and appoint_____________________ Attorney to
transfer the said stock on the books of the within named Corporation with
full power of substitution in the premises.
Dated _____________________
Signature:
____________________________________________________
Notice: The signature to this assignment must
correspond with the name as written upon the face of
the certificate in every particular, without alteration
or enlargement or any change whatever.
Signature guaranteed:
____________________________________________________
THE SIGNATURES(S) SHOULD BE GUARANTEED BY AN ELIGIBLE
GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND
LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN
AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM),
PURSUANT TO S.E.C. RULE 17Ad-15.
<PAGE>
EXHIBIT 4(e)
CERTIFICATE OF DESIGNATIONS, PREFERENCES AND RIGHTS
of
___% PREFERRED STOCK, SERIES __
($_____ LIQUIDATION PREFERENCE)
of
AMSOUTH BANCORPORATION
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
We the undersigned, __________________ and _______________, the
[Chairman of the Board] and [Assistant] Secretary, respectively, of AmSouth
Bancorporation, a Delaware corporation (the "Company"), do hereby certify as
follows:
Pursuant to the authority granted to the Board of Directors by Section
IV of the Restated Certificate of Incorporation of the Company, as amended, and
in accordance with the provisions of Section 151 of the General Corporation Law
of the State of Delaware, the Board of Directors of the Company, by action duly
taken on ________, has adopted the following resolutions fixing the designation,
amount and stated value of a new series of the Company's Preferred Stock, and
the powers, preferences and relative, participating, optional and other rights
of the shares of such series, and the qualifications, limitations and
restrictions thereon:
RESOLVED, that there is hereby established a series of Preferred Stock
of the Company, and the designation, amount and stated value of such series
of Preferred Stock, and the powers, preferences and relative,
participating, optional and other rights of the shares of such series, and
the qualifications, limitations and restrictions thereof, are hereby fixed
as follows:
(i) Designation: The shares of such series shall be
-----------
designated as "___% Preferred Stock, Series __ ($_____ Liquidation
<PAGE>
Preference)" (the "Series __ Preferred Stock"). Each share of Series
__ Preferred Stock shall be identical in all respects with all other
shares of Series __ Preferred Stock except as to the dates from and
after which dividends thereon shall be cumulative.
(ii) Amount: The number of shares of Series __ Preferred
------
Stock shall initially be __________, which number may from time to
time be increased or decreased (but not below the number then
outstanding) by the Board of Directors. Shares of Series __ Preferred
Stock redeemed, purchased by the Company [or converted into Common
Shares] shall be canceled and shall revert to authorized but unissued
Preferred Shares undesignated as to series. Shares of Series __
Preferred Stock may be issued in fractional shares, which fractional
shares shall entitle the holder, in proportion to such holder's
fractional share, to all rights of a holder of a whole share of Series
__ Preferred Stock.
(iii) Dividends and Distributions:
---------------------------
(a) The holders of Series __ Preferred Stock shall be
entitled to receive, when and as declared by the Board of Directors,
but only out of funds legally available therefor, [cumulative] cash
dividends at the annual rate of $_____ per share, and no more, payable
quarterly on the first days of __________, __________, __________ and
__________, respectively, in each year with respect to the quarterly
dividend period (or portion thereof) ending on the day preceding such
respective dividend payment date, to shareholders of record on the
respective date, not exceeding sixty days preceding such dividend
payment date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend.
[(b) Dividends on the shares of Series __ Preferred Stock
shall be cumulative as follows: (1) if issued prior to the record
date for the first dividend on shares of such series, from the date of
issue thereof; (2) if issued during the period commencing immediately
after a record date for a dividend on shares of such series and ending
on the payment date for such dividend, from such dividend payment
date; and (3) otherwise from the first day of __________, __________,
__________ and __________ preceding the date of issue of such shares.]
(c) No dividend shall be declared and paid or set apart
for payment and no distribution shall be made on any share of Series
__ Preferred Stock or any share of any other class or series of stock
ranking
<PAGE>
on a parity with the Series __ Preferred Stock as to dividends for any
quarterly dividend period unless at the same time a like proportionate
dividend for the same quarterly dividend period [(including any
accumulation in respect of unpaid dividends for prior dividend
periods)], ratably in proportion to the respective dividends
applicable thereto, shall be declared and paid or set apart for
payment on all shares of Series __ Preferred Stock and all shares of
any class or series of stock ranking on a parity with the Series __
Preferred Stock as to dividends then issued and outstanding and
entitled to receive dividends. [When dividends are not paid in full
(or a sum sufficient for such full payment is not set apart) upon the
Series __ Preferred Stock and any other series of preferred stock of
AmSouth ranking on a parity, as to dividends, with the Preferred
Stock, dividends upon Series __ Preferred Stock and dividends on such
other series of preferred stock ranking on a parity with such series
of Preferred Stock will be declared pro rata so that the amount of
dividends declared per share on Series __ Preferred Stock and such
other series of preferred stock ranking on a parity with such series
of Preferred Stock will in all cases bear to each other the same ratio
that accrued dividends for the then-current dividend period per share
on Series __ Preferred Stock (including any accumulation in respect of
unpaid dividends for prior dividend periods, if dividends on such
series of Preferred Stock are cumulative) and accrued dividends,
including required or permitted accumulations, if any, on shares of
such other series of preferred stock, bear to each other.] So long as
any share of Series __ Preferred Stock remains outstanding, unless the
full dividend on all shares of Series __ Preferred Stock for the then
current quarterly dividend period [(including any accumulation in
respect of unpaid dividends for prior dividend periods)] shall have
been declared and paid or set apart for payment and all prior sinking
fund requirements with respect to the Series __ Preferred Stock shall
have been complied with, (i) no dividend shall be declared and paid or
set apart for payment and no distribution shall be made on any junior
stock other than a dividend payable in junior stock, (ii) the Company
shall not purchase, redeem or otherwise acquire for consideration any
junior stock (or pay any monies into a sinking fund for the redemption
of any such shares), directly or indirectly (other than as a result of
a reclassification of junior stock, or the exchange or conversion of
one junior stock for or into another junior stock, or other than
through the use of the proceeds of a substantially contemporaneous
sale of other junior stock), and (iii) the Company shall not purchase,
redeem or otherwise acquire for consideration any shares of any class
or series of stock ranking on a parity as to dividends with the Series
__ Preferred Stock (or pay any monies into a sinking fund for
<PAGE>
the redemption of any such shares), directly or indirectly, other than
pursuant to pro rata offers to purchase or a concurrent redemption of
all, or a pro rata portion, of the outstanding Series __ Preferred
Stock and all shares of any other class or series ranking on a parity
as to dividends with the Series __ Preferred Stock (other than as a
result of the exchange or conversion of such shares for or into junior
stock, or other than through the use of the proceeds of a
substantially contemporaneous sale of junior stock). Subject to the
foregoing, and not otherwise, such dividends (payable in cash, stock
or otherwise) as may be determined by the Board of Directors may be
declared and paid on any junior stock from time to time out of any
funds legally available therefor, and the Series __ Preferred Stock
shall not be entitled to participate in any such dividends, whether
payable in cash, stock or otherwise.
(d) No interest, or sum of money in lieu of interest, will
be payable in respect of any dividend payment on Series __ Preferred
Stock that may be in arrears. Any dividend payment made on Series __
Preferred Stock will first be credited against the earliest accrued
but unpaid dividend due with respect to shares of such series that
remains payable.
(iv) Liquidation:
-----------
(a) In the event of any liquidation, dissolution or winding
up of the affairs of the Company, whether voluntary or involuntary,
the holders of the Series __ Preferred Stock shall be entitled to
receive out of the assets of the Company, before any distribution or
payment is made to the holders of any junior stock, to be paid out of
the assets of the Company or proceeds thereof, whether from capital or
surplus, the amount of $_____ per share together with the amount of
any dividends accrued and unpaid thereon (whether or not earned or
declared), and after such payment the holders of the Series __
Preferred Stock shall have no right or claim to any of the remaining
assets of the Company.
(b) If the assets of the Company available for distribution
to the holders of shares of Series __ Preferred Stock upon
liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to the first
paragraph of this Section (iv), no distribution shall be made on
account of any shares of any other class or series of stock of the
Company ranking on a parity with the Series __ Preferred Stock upon
such liquidation, dissolution or winding up unless
<PAGE>
proportionate distributive amounts shall be paid on account of the
shares of Series __ Preferred Stock, ratably in proportion to the full
distributable amounts for which holders of all such parity shares are
respectively entitled upon liquidation, dissolution or winding up.
(c) Upon the liquidation, dissolution or winding up of the
Company, the holders of shares of Series __ Preferred Stock then
outstanding shall be entitled to be paid out of assets of the Company
available for distribution to its stockholders all amounts to which
such holders are entitled pursuant to the paragraph (a) of this
Section (iv) before any payment shall be made to the holders of any
junior stock.
(d) For the purposes of this Section (iv), a consolidation
or merger of the Company with or into another corporation or
corporations, or a sale, lease or conveyance, whether for cash, shares
of stock, securities or properties, of all or substantially all or any
part of the assets of the Company, shall not be deemed or construed to
be a liquidation, dissolution or winding up of the Company.
[(v) Redemption:
----------
(a) Issued and outstanding shares of Series __ Preferred
Stock shall be redeemable at the option of the Company, as a whole or
from time to time in part, at any time or from time to time, upon
notice given as hereinafter specified, at the redemption price in
effect at the redemption date as provided in this Section (v),
together with accrued dividends as of the redemption date (whether or
not earned or declared). The redemption price for shares of Series __
Preferred Stock shall be $_____ per share if the date designated for
redemption is on or before [__________], $_____ per share if
thereafter and on or before [__________], $_____ per share if
thereafter and on or before [__________], and $_____ per share if
thereafter.
(b) Notice of every redemption of shares of Series __
Preferred Stock shall be given by publication at least once in a
newspaper printed in the English language and customarily published on
each business day and of general circulation in the Borough of
Manhattan, The City of New York, such publication to be at least 30
days and not more than 60 days prior to the date fixed for redemption.
[In the case of Depositary Shares, the Company shall give notice of
such redemption to the Depositary not less than 40 or more than 70
days prior to the date fixed for redemption. Notice of every such
redemption shall
<PAGE>
also be mailed first class by the Company [or, in the case of
Depositary Shares, by the Depositary], postage prepaid, addressed to
the holders of record of the shares to be redeemed at their respective
last addresses as they shall appear on the books of the Company. Such
mailing shall be at least 30 days and not more than 60 days prior to
the date fixed for redemption; but failure to mail such notice or any
defect therein or in the mailing thereof shall not affect the validity
of the proceeding for the redemption of any shares so to be redeemed.
(c) In case of redemption of only a part of the shares of
Series __ Preferred Stock at the time outstanding, whether for sinking
fund purposes or otherwise, the redemption may be either pro rata or
by lot. The Board of Directors shall have full power and authority,
subject to the provisions herein contained, to prescribe the terms and
conditions upon which shares of the Series __ Preferred Stock shall be
redeemed from time to time.
(d) If notice of redemption shall have been duly given, and
if, on or before the redemption date specified therein, all funds
necessary for such redemption shall have been set aside by the
Company, separate and apart from its other funds, in trust for the pro
rata benefit of the holders of the shares called for redemption, so as
to be and continue to be available therefor, then, notwithstanding
that any certificate for shares so called for redemption shall not
have been surrendered for cancellation, all shares so called for
redemption shall no longer be deemed outstanding on and after such
redemption date, and all rights with respect to such shares shall
forthwith on such redemption date cease and terminate, except only the
right of the holders thereof to receive the amount payable on
redemption thereof, without interest.
(e) If such notice of redemption shall have been duly given
or if the Company shall have given to the bank or trust company
hereinafter referred to irrevocable authorization promptly to give
such notice, and if on or before the redemption date specified therein
the funds necessary for such redemption shall have been deposited by
the Company with such bank or trust company in trust for the pro rata
benefit of the holders of the shares called for redemption, then,
notwithstanding that any certificate for shares so called for
redemption shall not have been surrendered for cancellation, from and
after the time of such deposit, all shares so called for redemption
shall no longer be deemed to be outstanding and all rights with
respect to such shares shall forthwith cease and terminate, except
only the right of the holders
<PAGE>
thereof to receive from such bank or trust company at any time after
the time of such deposit the funds so deposited, without interest, and
the right to exercise, on or before the date fixed for redemption,
privileges of exchange or conversion, if any, not theretofore
expiring. The aforesaid bank or trust company shall be organized and
in good standing under the laws of the United States of America or of
the State of New York, shall be doing business in the Borough of
Manhattan, The City of New York, shall have capital, surplus and
undivided profits aggregating at least $10,000,000 according to its
last published statement of condition, and shall be identified in the
notice of redemption. Any interest accrued on such funds shall be paid
to the Company from time to time.
(f) Any funds so set aside or deposited by the Company
which shall not be required for such redemption because of the
exercise of any right of conversion or exchange subsequent to the date
of such deposit shall be released or repaid to the Company forthwith.
Any funds so set aside or deposited, as the case may be, and unclaimed
at the end of three years from such redemption date shall, to the
extent permitted by law, be released or repaid to the Company, after
which repayment the holders of the shares so called for redemption
shall look only to the Company for payment thereof.]
[(vi) Conversion:]
----------
(vii) Voting:
------
(a) Except as expressly provided hereinafter in this
Section (vii) or as otherwise may from time to time be required by
law, the holders of Series __ Preferred Stock shall have no voting
power.
[(b) If and whenever six quarterly dividends (whether or
not consecutive) payable on any series of Preferred Stock shall be in
arrears in whole or in part whether or not earned or declared, the
number of directors then constituting the Board of Directors shall be
increased by two and the holders of shares of Series __ Preferred
Stock, together with the holders of shares of every other series of
Preferred Stock similarly entitled to vote for the election of two
additional directors, voting separately as a class, regardless of
series, shall be entitled to elect the two additional directors at any
annual meeting of shareholders or special meeting held in place
thereof, or at a special meeting of the holders of such series of the
Preferred Stock called as
<PAGE>
hereinafter provided. Whenever all arrears in dividends on the
Preferred Stock then outstanding shall have been paid and dividends
thereon for the current quarterly dividend period shall have been paid
or declared and set apart for payment, then the right of the holders
of such series of the Preferred Stock to elect such additional two
directors shall cease (but subject always to the same provisions for
the vesting of such voting rights in the case of any similar future
arrearages in dividends), and the terms of office of all persons
elected as directors by the holders of such series of the Preferred
Stock shall forthwith terminate and the number of the Board of
Directors shall be reduced accordingly. At any time after such voting
power shall have been so vested in the holders of shares of Series __
Preferred Stock and of any other such series of the Preferred Stock,
the secretary of the Company may, and upon the written request of any
holder of Series __ Preferred Stock (addressed to the secretary at the
principal office of the Company) shall, call a special meeting of the
holders of the Series __ Preferred Stock and of such other series of
the Shares for the election of the two directors to be elected by them
as herein provided, such call to be made by notice similar to that
provided in the by-laws for a special meeting of the shareholders or
as required by law. If any such special meeting required to be called
as above provided shall not be called by the secretary within 20 days
after receipt of any such request, then any holder of shares of Series
__ may call such meeting, upon the notice above provided, and for that
purpose shall have access to the stock books of the Company. The
directors elected at any such special meeting shall hold office until
the next annual meeting of the shareholders or special meeting held in
place thereof if such office shall not have previously terminated as
above provided. In case any vacancy shall occur among the directors
elected by the holders of such series of the Preferred Stock, a
successor shall be elected by the Board of Directors to serve until
the next annual meeting of the shareholders or special meeting held in
place thereof upon the nomination of the then remaining director
elected by the holders of such series or the successor of such
remaining director.]
(c) So long as any shares of Series __ Preferred Stock are
outstanding, in addition to any other vote or consent of shareholders
required by law or by the certificate of incorporation, the consent of
the holders of at 66 2/3% of the shares of Series __ Preferred Stock
and of all other series of the Preferred Stock similarly entitled to
vote upon the matters specified in this Section (vii), at the time
outstanding, acting as a single class regardless of series, given in
person or by proxy, either in
<PAGE>
writing without a meeting or by vote at any meeting called for the
purpose, shall be necessary for effecting or validating:
(1) Any amendment, alteration or repeal of any of the
provisions of the certificate of incorporation, or of the by-
laws, of the Company, which affects adversely the voting powers,
rights or preferences of the holders of Preferred Stock;
provided, however, that the amendment of the provisions of the
certificate of incorporation of the Company so as to authorize or
create, or to increase the authorized amount of, any junior stock
or any shares of any class ranking on a parity with the Preferred
Stock shall not be deemed to affect adversely the voting powers,
rights or preferences of the holders of Preferred Stock; and
provided further, however, that if any such amendment, alteration
or appeal would affect adversely any voting powers, rights or
preferences of the Series __ Preferred Stock that are not enjoyed
by some or all of the other series otherwise entitled to vote in
accordance with this Section (vii), the consent of the holders of
at least 66 2/3% of the Series __ Preferred Stock and of all
other series similarly affected, similarly given, shall be
required in lieu of the consent of the holders of at least 66
2/3% of the Shares of Series __ Preferred Stock and of all other
series of the Preferred Stock otherwise entitled to vote in
accordance with this Section (vii);
(2) The authorization or creation of, or any increase in
the authorized amount of, any class of stock, or the
establishment or designation of any series of stock (unless the
class of which such series is a part has been authorized
previously pursuant to this paragraph (vii)(c)(2)), or the
issuance or sale of any obligation, security or instrument
convertible into, exchangeable for, or evidencing the right to
purchase, acquire or subscribe for shares of a class or series of
stock, if in any such case such class or series of stock ranks
prior to the Series __ Preferred Stock as to dividends or
distribution of assets upon liquidation, dissolution or winding
up (unless the class or series has been authorized previously
pursuant to this paragraph (vii)(c)(2)); or
(3) The merger or consolidation of the Company with or into
any other corporation, unless the resulting corporation will
thereafter have no class of shares and no other securities either
authorized or outstanding ranking prior to Series __ Preferred
<PAGE>
Stock in the distribution of its assets on liquidation,
dissolution or winding up or in the payment of dividends, except
the same number of shares and the same amount of other securities
with the same rights and preferences as the shares and securities
of the Company respectively authorized and outstanding
immediately preceding such merger or consolidation, and each
holder of shares of Series __ Preferred Stock immediately
preceding such merger or consolidation shall receive the same
number of shares, with the same rights and preferences, of the
resulting corporation; provided, however, that no such consent of
-------- -------
the holders of Series __ Preferred Stock shall be required if, at
or prior to the time when such amendment, alteration or repeal is
to take effect, provision is made for the redemption of all
shares of Series __ Preferred Stock at the time outstanding.
(d) Holders of Series __ Preferred Stock, and the holders
of shares of any other series of Preferred Stock upon which like
voting rights have been conferred and are then exercisable, shall be
entitled to one vote for each share of such stock held on matters as
to which such holders shall be entitled to vote.
(viii) Definitions: As used herein with respect to Series
-----------
__ Preferred Stock, the following terms shall have the following
meanings:
(a) The term "junior stock" shall mean the Common Shares
and any other class or series of shares of the Company hereafter
authorized over which Series __ Preferred Stock has preference or
priority in the payment of dividends or in the distribution of
assets on any liquidation, dissolution or winding up of the
Company.
(b) The term "accrued dividends", with respect to any
share of any class or series, shall mean an amount computed at
the annual dividend rate for the class or series of which the
particular share is a part, from the date on which dividends on
such share became cumulative to and including the date to which
such dividends are to be accrued, less the aggregate amount of
all dividends theretofore paid thereon.
<PAGE>
(ix) No Other Rights: The shares of Series __ Preferred
---------------
Stock shall not have any relative, participating, optional or other
special rights and powers other than as set forth herein.
(Seal) ___________________________
Chairman of the Board
Attest:
___________________________
Secretary
<PAGE>
EXHIBIT 4(f)
CERTIFICATE NUMBER OF
NUMBER SHARES
AMSOUTH BANCORPORATION
Incorporated Under the Laws of the State of Delaware
___% PREFERRED STOCK, SERIES __
($_____ LIQUIDATION PREFERENCE)
CUSIP NO. __________
(See Reverse for
Certain Definitions)
This Certifies that _______________________ is the owner of
_______________________ (____) fully paid and nonassessable shares of the ___%
Preferred Stock, Series __ ($_____ Liquidation Preference), of AmSouth
Bancorporation (the "Corporation") transferable only on the books of the
Corporation by the holder thereof in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. This certificate is not valid
unless countersigned by the transfer agent and registered by the registrar.
WITNESS the seal of the Corporation and the signatures of its duly authorized
officers.
Dated:
COUNTERSIGNED AND REGISTERED:
_______________________________ AMSOUTH BANCORPORATION
as Transfer Agent and Registrar
By ____________________________ By____________________________
Authorized Signature Chairman
___________________________
Secretary
<PAGE>
AMSOUTH BANCORPORATION
The Corporation will furnish without charge to each stockholder who so
requests a full statement of the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof of the Corporation, and the qualifications, limitations or restrictions
of such preferences and/or rights. Such request may be made to the office of
the secretary of the Corporation or to the transfer agent.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT- ____ Custodian ____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act____________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, ______________ hereby sell, assign and transfer
unto _____________ [PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE] __________________ [PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS
INCLUDING POSTAL ZIP CODE OF ASSIGNEE] _______________ Shares of the capital
stock represented by the within Certificate, and do hereby irrevocably
constitute and appoint ______________ Attorney to transfer the said stock on the
books of the within-named Corporation with full power of substitution in the
premises.
Dated _____________
___________________________________________
In the presence of ________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF
THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE WHATEVER.
<PAGE>
EXHIBIT 4(G)
================================================================================
DEPOSIT AGREEMENT
AMONG
AMSOUTH BANCORPORATION
[NAME OF DEPOSITARY],
as Depositary
and the several Holders of the Depositary Shares
___________________
Dated as of ________ __, 19__
___________________
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
Definitions
-----------
<S> <C>
SECTION 1.1. Definitions .......................................... 1
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
-----------------------------------------------------------
Transfer, Surrender and Redemption of Receipts
----------------------------------------------
SECTION 2.1. Form and Transfer of Receipts......................... 3
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts
in Respect Thereof................................... 4
SECTION 2.3. Redemption of Stock................................... 5
SECTION 2.4. Registration of Transfer of Receipts.................. 6
SECTION 2.5. Split-ups and Combinations of Receipts; Surrender of
Depositary Shares and Withdrawal of Stock............ 6
SECTION 2.6. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts................... 7
SECTION 2.7. Lost Receipts, Etc.................................... 8
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts.. 8
ARTICLE III
Certain Obligations of the Holders
----------------------------------
of Receipts and the Company
---------------------------
SECTION 3.1. Filing Proofs, Certificates and Other Information..... 8
SECTION 3.2. Payment of Taxes or Other Governmental Charges........ 9
SECTION 3.3. Warranty as to Stock.................................. 9
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
SECTION 4.1. Cash Distributions.................................... 9
SECTION 4.2. Distributions Other than Cash......................... 10
SECTION 4.3. Subscription Rights, Preferences or Privileges........ 11
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
SECTION 4.4. Notice of Dividends, Etc.; Fixing of Record Date for
Holders of Depositary Shares......................... 12
SECTION 4.5. Voting Rights......................................... 12
SECTION 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, Etc............ 13
SECTION 4.7. Delivery of Reports................................... 13
SECTION 4.8. List of Holders....................................... 13
ARTICLE V
The Depositary, the Depositary's Agents,
----------------------------------------
the Registrar and the Company
-----------------------------
SECTION 5.1. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar................... 14
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents,
any Registrar and the Company........................ 15
SECTION 5.4. Resignation and Removal of the Depositary;
Appointment of Successor Depositary.................. 16
SECTION 5.5. Corporate Notices and Reports......................... 17
SECTION 5.6. Indemnification by the Company........................ 18
SECTION 5.7. Charges and Expenses.................................. 18
ARTICLE VI
Amendment and Termination
-------------------------
SECTION 6.1. Amendment............................................. 18
SECTION 6.2. Termination........................................... 19
ARTICLE VII
Miscellaneous
-------------
SECTION 7.1. Counterparts.......................................... 20
SECTION 7.2. Exclusive Benefit of Parties.......................... 20
SECTION 7.3. Invalidity of Provisions.............................. 20
SECTION 7.4. Notices............................................... 20
SECTION 7.5. Depositary's Agents................................... 21
SECTION 7.6. Holders of Receipts Are Parties....................... 21
SECTION 7.7. Governing Law......................................... 21
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
SECTION 7.8. Inspection of Agreement............................... 21
SECTION 7.9. Headings.............................................. 21
</TABLE>
-iii-
<PAGE>
DEPOSIT AGREEMENT, dated as of _______________, 19__, among AmSouth
Bancorporation, a Delaware corporation, (the "Company") ________________, a
______________________, as Depositary, and the holders from time to time of the
Depositary Shares referred to herein.
W i t n e s s e t h:
-------------------
Whereas, it is desired to provide, as set forth in this Agreement, for the
deposit of shares of ___% Preferred Stock, Series __ ($____ Liquidation
Preference), without par value, of the Company with the Depositary (as defined
below) for the purposes set forth in this Agreement and for the issuance
hereunder of Receipts (as defined below) evidencing Depositary Shares (as
defined below) in respect of the Stock (as defined below) so deposited;
Now, Therefore, in consideration of the premises, the parties hereto hereby
agree as follows:
ARTICLE I
Definitions
-----------
Section 1.1. Definitions.
For all purposes of this Deposit Agreement and the Receipts, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(3) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Agreement; and
<PAGE>
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
The following definitions shall for all purposes, unless otherwise indicated,
apply to the respective terms used in this Agreement and the Receipts:
"Agreement" shall mean this Deposit Agreement, as modified, amended or
supplemented from time to time.
"Certificate of Designations" shall mean the Certificate of Designations filed
with the Secretary of State of Delaware establishing the Stock as a series of
Preferred Stock, without par value, of the Company.
"Company" shall mean AmSouth Bancorporation, a Delaware corporation, and its
successors.
"Depositary" shall mean ____________________, and any successor as Depositary
hereunder.
"Depositary Shares" shall mean the depositary shares provided for herein, each
representing a [one-tenth] interest in a share of the Stock and evidenced by a
Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary pursuant
to Section 7.5.
"Depositary's Office" shall mean the office of the Depositary at
____________________, ____________________, ____________________, at which at
any particular time its depositary receipt business shall be administered.
"Receipt" shall mean one of the depositary receipts issued hereunder, whether
in definitive or temporary form.
"Record Holder", with respect to a Depositary Share, shall mean the person in
whose name a Receipt evidencing such Depositary Share is registered on the books
of the Depositary maintained for such purpose.
"Redemption Date" shall have the meaning assigned to such term in Section
2.3(a).
"Redemption Price" shall have the meaning assigned to such term in Section
2.3(b).
-2-
<PAGE>
"Registrar" shall mean any bank or trust company that is appointed to register
ownership and transfers of Receipts as herein provided.
"Securities" shall have the meaning assigned to such term in Section 3.2.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Stock" shall mean shares of the Company's ___% Preferred Stock, Series __
($____ Liquidation Preference), without par value.
ARTICLE II
Form of Receipts, Deposit of Stock, Execution and Delivery,
-----------------------------------------------------------
Transfer, Surrender and Redemption of Receipts
----------------------------------------------
Section 2.1. Form and Transfer of Receipts.
(a) Definitive Receipts shall be engraved or printed or lithographed and shall
be substantially in the form set forth in Exhibit A annexed to this Agreement,
with appropriate insertions, modifications and omissions, as provided below.
Pending the preparation of definitive Receipts, the Depositary, upon the written
order of the Company delivered in compliance with Section 2.2, shall execute and
deliver temporary Receipts that are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive Receipts
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the persons executing such
Receipts may determine to be necessary or appropriate, as conclusively evidenced
by their execution of such Receipts. If temporary Receipts are issued, the
Company and the Depositary shall cause definitive Receipts to be prepared
without unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon surrender
of the temporary Receipts at an office of the Depositary described in Section
2.2(c), without charge to the holder. Upon surrender for cancellation of any one
or more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as are represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement and with respect to the Stock as
definitive Receipts.
-3-
<PAGE>
(b) Receipts shall be executed by the Depositary by the manual signature of a
duly authorized officer of the Depositary; provided that such signature may be a
facsimile if a Registrar for the Receipts (other than the Depositary) shall have
been appointed and such Receipts are counter-signed by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Agreement or be valid or obligatory for any purpose unless
it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by facsimile signature of a duly authorized officer of the
Depositary and countersigned manually by a duly authorized officer of such
Registrar. The Depositary shall record on its books each Receipt so signed and
delivered as hereinafter provided.
(c) Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Agreement as may be required by the Company or the Depositary or required to
comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.
(d) Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
be registered on the books of the Depositary as provided in Section 2.4, the
Company, the Depositary and their respective agents may, notwithstanding any
notice to the contrary, treat the Record Holder thereof at such time as the
absolute owner thereof for the purpose of determining the person entitled to
distributions of dividends or other distributions or to any notice provided for
in this Agreement and for all other purposes.
Section 2.2. Deposit of Stock; Execution and Delivery of Receipts in Respect
Thereof.
(a) Subject to the terms and conditions of this Agreement, the Company may
from time to time deposit shares of Stock under this Agreement by delivery to
the Depositary of a certificate or certificates for the Stock to be deposited,
properly endorsed or accompanied, if required by the Depositary, by a duly
executed instrument of transfer or endorsement, in form reasonably satisfactory
to the Depositary, together with all such certifications as may be required by
the Depositary in accordance with the provisions of this Agreement, and together
with a written order of the Company directing the Depositary to execute and
deliver to, or upon the written order of, the
-4-
<PAGE>
person or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares relating to such deposited Stock.
(b) Deposited Stock shall be held by the Depositary at the Depositary's
Office or at such other place or places [within the State of __________] as the
Depositary shall determine.
(c) Upon receipt by the Depositary of a certificate or certificates for Stock
deposited in accordance with the provisions of this Section, together with the
other documents required in Section 2.2(a), and upon registration of the Stock
so deposited on the books of the Company in the name of the Depositary or its
nominee, the Depositary, subject to the terms and conditions of this Agreement,
shall execute and deliver, to or upon the order of the person or persons named
in the written order delivered to the Depositary referred to in Section 2.2(a),
a Receipt or Receipts for the number of Depositary Shares relating to the Stock
so deposited and registered in such name or names as may be requested by such
person or persons. The Depositary shall execute and deliver such Receipt or
Receipts at the Depositary's Office or such other offices, if any, as the
Depositary may designate. Delivery at other offices shall be at the risk and
expense of the person requesting such delivery.
(d) Other than in the case of splits, combinations or other reclassifications
affecting the Stock, or in the case of dividends or other distributions of
Stock, if any, there shall be deposited hereunder not more than
____________________ shares of Stock.
Section 2.3 Redemption of Stock.
(a) Whenever the Company shall elect to redeem shares of Stock in accordance
with the provisions of the Certificate of Designations, it shall (unless
otherwise agreed in writing with the Depositary) mail notice to the Depositary
of such proposed redemption, by first-class mail, postage prepaid, not less than
40 or more than 70 days prior to the date fixed for redemption of Stock (the
"Redemption Date") in accordance with Section ___ of the Certificate of
Designations. On the date of such redemption, provided that the Company shall
then have paid in full to the Depositary the redemption price of the Stock to be
redeemed, plus any accrued and unpaid dividends thereon, the Depositary shall
redeem the Depositary Shares relating to such Stock. The Depositary shall mail
notice of the redemption of such Stock and the proposed simultaneous redemption
of the number of Depositary Shares relating to the Stock to be redeemed, by
first-class mail, postage prepaid, not less than 30 and not more than 60 days
prior to the Redemption Date, to the Record Holders of the Depositary Shares to
be so redeemed, at the addresses of such holders as they appear on the records
of the Depositary; but neither failure to mail any such notice to one or more
such holders nor any defect in any notice to one or more such holders shall
affect the sufficiency of the proceedings
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for redemption as to other holders. Each such notice shall state: (i) the
Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if
fewer than all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed;
(iii) the Redemption Price; (iv) the place or places where Receipts evidencing
Depositary Shares are to be surrendered for payment of the redemption price; and
(v) that dividends in respect of the Stock underlying the Depositary Shares to
be redeemed will cease to accrue and accumulate at the close of business on such
Redemption Date. If fewer than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot or
pro rata, as may be determined by the Depositary to be equitable.
(b) If notice has been mailed by the Depositary as required by Section
2.3(a), then from and after the Redemption Date (unless the Company shall have
failed to redeem the shares of Stock to be redeemed by it as set forth in the
Company's notice provided for in Section 2.3(a)) [all dividends in respect of
the Depositary Shares so called for redemption shall cease to accrue and
accumulate,] the Depositary Shares being redeemed from such proceeds shall be
deemed no longer to be outstanding, all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the Redemption
Price) shall, to the extent of such Depositary Shares, cease and terminate and,
upon surrender in accordance with such notice of the Receipts evidencing any
such Depositary Shares (properly endorsed or assigned for transfer, if the
Depositary shall so require), such Depositary Shares shall be redeemed by the
Depositary at a price per Depositary Share (the "Redemption Price") equal to the
proportionate part of the redemption price per share paid in respect of the
shares of Stock plus all money and other property, if any, paid with respect to
such shares of Stock, including all amounts paid by the Company in respect of
dividends that on the Redemption Date, have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid. The foregoing shall be
subject further to the terms and conditions of the Certificate of Designations.
(c) If fewer than all the Depositary Shares evidenced by a Receipt shall be
called for redemption, the Depositary shall deliver to the holder of such
Receipt, together with the payment of the Redemption Price, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
Section 2.4. Registration of Transfer of Receipts. Subject to the terms and
conditions of this Agreement, the Depositary shall register on its books from
time to time transfers of Depositary Shares upon any surrender of the Receipt or
Receipts evidencing such Depositary Shares by the holder in person or by a duly
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer. Thereupon, the Depositary shall execute a new Receipt
or Receipts
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evidencing the same aggregate number of Depositary Shares as those
evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or
Receipts to or upon the order of the person entitled thereto.
Section 2.5. Split-ups and Combinations of Receipts; Surrender of Depositary
Shares and Withdrawal of Stock.
(a) Upon surrender of a Receipt or Receipts at the Depositary's Office or at
such other offices as it may designate for the purpose of effecting a split-up
or combination of such Receipt or Receipts, and subject to the terms and
conditions of this Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the denominations requested, evidencing the aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
(b) Any holder of Depositary Shares may withdraw the number of whole shares
of Stock underlying such Depositary Shares and all money and other property, if
any, underlying such Depositary Shares by surrendering Receipts evidencing such
Depositary Shares at the Depositary's Office or at such other offices as the
Depositary may designate for such withdrawals. Thereafter, without unreasonable
delay, the Depositary shall deliver to such holder, or to the person or persons
designated by such holder as hereinafter provided, the number of whole shares of
Stock and all money and other property, if any, underlying the Depositary Shares
so surrendered for withdrawal, but holders of such whole shares of Stock will
not thereafter be entitled to deposit such Stock hereunder or to receive
Receipts evidencing Depositary Shares therefor. If a Receipt delivered by a
holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares relating to other than a number of whole shares of
Stock, the Depositary shall at the same time, in addition to such number of
whole shares of Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the Stock and money and other property being
withdrawn may be made by delivery of such certificates, documents of title and
other instruments as the Depositary may deem reasonably appropriate.
(c) If the Stock and the money and other property being withdrawn are to be
delivered to a person or persons other than the Record Holder of the Depositary
Shares evidenced by the Receipts being surrendered for withdrawal of Stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer.
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(d) Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
Section 2.6. Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts.
(a) As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination, surrender or exchange of any Receipt, the
Depositary, any of the Depositary's Agents or the Company may require payment to
it of a sum sufficient for the payment (or, in the event that the Depositary or
the Company shall have made such payment, the reimbursement to it) of any
charges or expenses payable by the holder of a Receipt pursuant to Section 5.7,
may require the production of evidence satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Agreement.
(b) The delivery of Receipts against Stock may be suspended, the registration
of transfer of Depositary Shares may be refused and the registration of
transfer, surrender or exchange of outstanding Depositary Shares may be
suspended (i) during any period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary or advisable by the
Depositary, any of the Depositary's Agents or the Company at any time or from
time to time because of any requirement of law or of any government or
governmental body or commission or under any provision of this Agreement.
Section 2.7. Lost Receipts, Etc. If any Receipt shall be mutilated, destroyed,
lost or stolen, the Depositary in its discretion may execute and deliver a
Receipt of like form and tenor in exchange and substitution for such mutilated
Receipt, or in lieu of and in substitution for such destroyed, lost or stolen
Receipt, upon (i) the surrender of such mutilated Receipt at the Depositary's
Office or such other offices as the Depositary may designate for such purpose,
and the filing by the Registered Holder thereof with the Depositary of evidence
satisfactory to the Depositary of such destruction, loss or theft of such
Receipt, or the authenticity of such mutilated Receipt and of his or her
ownership thereof and (ii) the furnishing to the Depositary of reasonable
indemnification satisfactory to it.
Section 2.8. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the
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Depositary. Except as prohibited by applicable law or regulation, the
Depositary is authorized to destroy all Receipts so canceled.
ARTICLE III
Certain Obligations of the Holders
----------------------------------
of Receipts and the Company
---------------------------
Section 3.1. Filing Proofs, Certificates and Other Information. Any Registered
Holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the Depositary
or the Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold the delivery, or delay the registration of transfer,
redemption or exchange, of any Depositary Share or the withdrawal of any Stock
underlying Depositary Shares or the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof until such
proof or other information is filed or such certificates are executed or such
representations and warranties are made.
Section 3.2. Payment of Taxes or Other Governmental Charges. Holders of
Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.7. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency. The Depositary
shall act as the withholding agent for any payments, distributions and exchanges
made with respect to the Depositary Shares and Receipts, and the Stock or other
securities or assets represented thereby (collectively, the "Securities"). The
Depositary shall be responsible with respect to the Securities for the timely
(i) collection and deposit of any required withholding or backup withholding
tax, and (ii) filing of any information returns or other documents with Federal
(and other applicable) taxing authorities. If the Depositary is required to pay
any such amounts, the Company shall reimburse the Depositary for payment thereof
upon the request of the Depositary and the Depositary shall, upon the request of
the Company and as instructed by the Company, pursue its rights against such
holder at the Company's expense.
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Section 3.3. Warranty as to Stock. The Company hereby represents and warrants
that the Stock, when issued, will be validly issued, fully paid and
nonassessable. Such representation and warranty shall survive the deposit of the
Stock and the issuance of the Receipts.
ARTICLE IV
The Deposited Securities; Notices
---------------------------------
Section 4.1. Cash Distributions. Whenever the Depositary shall receive any
cash dividend or other cash distribution on the Stock, the Depositary shall[,
subject to Sections 3.1 and 3.2,] distribute to the Record Holders of the
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of such dividend or distribution as are, as nearly as practicable, in proportion
to the respective numbers of Depositary Shares held by such holders; provided,
however, that if the Company or the Depositary shall be required to withhold and
shall withhold from any cash dividend or other cash distribution in respect of
the Stock an amount on account of taxes or governmental charges or if as
otherwise required pursuant to law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to Record
Holders of Depositary Shares then outstanding.
Section 4.2. Distributions Other than Cash. Whenever the Depositary shall
receive any distribution other than cash on the Stock, the Depositary shall,
subject to Sections 3.1 and 3.2, distribute to the Record Holders of the
Depositary Shares on the record date fixed pursuant to Section 4.4 such amounts
of the securities or property received by it as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders, in any manner that the Depositary may deem equitable and practicable
for accomplishing such distribution. If in the opinion of the Depositary such
distribution cannot be made proportionately among such Record Holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or governmental charges) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper.
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The net proceeds of any such sale shall[, subject to Sections 3.1 and 3.2,] be
distributed or made available for distribution, as the case may be, by the
Depositary to the Record Holders of Depositary Shares entitled thereto as
provided by Section 4.1 in the case of a distribution received in cash.
Section 4.3. Subscription Rights, Preferences or Privileges.
(a) If the Company shall at any time offer or cause to be offered to the
persons in whose names Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or,
after consultation with the Company, not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed
or made available for distribution, as the case may be, by the Depositary to the
Record Holders of Depositary Shares entitled thereto as provided by Section 4.1
in the case of a distribution received in cash.
(b) If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Depositary Shares to be offered or sold the securities to which such
rights, preferences or privileges relate, the Company shall file promptly a
registration statement pursuant to such Act with respect to such rights,
preferences or privileges and securities and [use its best efforts and] take all
[reasonable] steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the
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offering and sale of such securities to such holders are exempt from
registration under the provisions of such Act.
(c) If any other action under the laws of any jurisdiction or any governmental
or administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to the holders of
Depositary Shares, the Company shall use its [best] efforts to take such action
or obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders to
exercise such rights, preferences or privileges.
Section 4.4. Notice of Dividends, Etc.; Fixing of Record Date for Holders of
Depositary Shares. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Stock, or whenever the Depositary shall receive notice of any meeting at which
holders of Stock are entitled to vote or any solicitation of consents in respect
of the Stock or any call for redemption of any shares of Stock, or of which
holders of Stock are entitled to notice, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Depositary Shares who shall be entitled to receive a distribution in
respect of such dividend, distribution, rights, preferences or privileges or the
net proceeds of the sale thereof, or to give instructions for the exercise of
voting rights at any such meeting, or who shall be entitled to receive notice of
such meeting or any such call for redemption.
Section 4.5. Voting Rights. Upon receipt of notice of any meeting at which the
holders of the Stock are entitled to vote or any solicitation of consents in
respect of the Stock, the Depositary shall, as soon as practicable thereafter,
mail to the Record Holders of Depositary Shares a notice, which shall contain
(i) such information as is contained in the notice of meeting or solicitation
given to the holders of the Stock and (ii) a statement informing Record Holders
of Depositary Shares that they may instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Stock underlying their respective
Depositary Shares and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders of Depositary
Shares on the record date established in accordance with Section 4.4, the
Depositary shall endeavor insofar as practicable to vote or cause to be voted,
in accordance with the instructions set forth in such requests, the maximum
number of whole shares of Stock underlying the Depositary Shares as to which any
particular voting or consent instructions are received. The Company hereby
agrees to take all action which may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of a Depositary
Share, the Depositary will vote
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such Stock or cause such Stock to be voted in accordance with the recommendation
of the Company.
Section 4.6. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, Etc. Upon any change in par or liquidation value, split-up,
combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of, and shall, upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary fully to reflect the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities that shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock, as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock and Receipts then outstanding
shall thenceforth represent the proportionate interest of holders thereof in the
new deposited property so received in exchange for or upon conversion of or in
respect of such Stock. In any such case the Depositary may in its discretion,
with the approval of the Company, execute and deliver additional Receipts, or
may call for the surrender of all outstanding Receipts to be exchanged for new
Receipts specifically describing such new deposited securities.
Section 4.7. Delivery of Reports. The Depositary will forward to the Record
Holders of Depositary Shares, at their respective addresses appearing in the
Depositary's books, all notices, reports and communications received from the
Company that are delivered to the holders of Depositary Stock, the Depositary
Shares or the Receipts.
Section 4.8. List of Holders. Promptly, upon request from time to time by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of Depositary Shares of all persons in whose names
Depositary Shares are registered on the books of the Depositary or Registrar, as
the case may be.
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ARTICLE V
The Depositary, the Depositary's Agents,
----------------------------------------
The Registrar and the Company
-----------------------------
Section 5.1. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar.
(a) Upon execution of this Agreement, the Depositary shall establish and
maintain at the Depositary's Offices, or at the office of any Registrar at which
the Depositary shall have complete access to all books and records maintained on
the Company's behalf in respect of this Agreement, the Depositary Shares or the
Receipts, facilities for the execution and delivery, surrender and exchange of
Receipts and the registration and registration of transfer of Depositary Shares,
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, all in accordance with the provisions of this Agreement. The
Depositary shall keep books at the Depositary's Office for the registration and
registration of transfer of Depositary Shares, which books at all reasonable
times shall, upon written demand under oath stating the purpose thereof, be open
for inspection for any purpose reasonably related to the Record Holder's
interest as a holder of Depositary Shares by the Record Holders of Depositary
Shares. The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
(b) The Depositary shall make available for inspection by holders of Receipts
at the Depositary's Office and at such other places as it may from time to time
deem advisable during normal business hours any reports and communications
received from the Company that are both received by the Depositary as the holder
of Stock and made generally available to the holders of Stock.
(c) If the Receipts or the Depositary Shares evidenced thereby or the Stock
underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute Registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulations.
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Section 5.2. Prevention of or Delay in Performance by the Depositary, the
Depositary's Agents, any Registrar or the Company. Neither the Depositary nor
any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Depositary Share if by reason of any provision of
any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, any Depositary's Agent or any Registrar, by reason of any provision,
present or future, of the Company's Restated Certificate of Incorporation, as
amended (including the Certificate of Designations) or, in the case of the
Company, the Depositary, any Depositary's Agent or any Registrar, by reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, any Depositary's Agent, any Registrar or the Company
shall be prevented or forbidden from doing or performing any act or thing that
the terms of this Agreement provide shall be done or performed; nor shall the
Depositary, any Depositary's Agent, any Registrar or the Company incur any
liability to any holder of a Depositary Share (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Agreement except, in case of any such exercise
or failure to exercise discretion not caused as aforesaid, if caused by the
negligence, bad faith or willful misconduct of the party charged with such
exercise or failure to exercise.
Section 5.3. Obligations of the Depositary, the Depositary's Agents, any
Registrar and the Company.
(a) Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company assumes any obligation or shall be subject to any liability under
this Agreement to holders of Depositary Shares other than that each agrees to
use good faith in the performance of such duties as are specifically set forth
in this Agreement and assumes liability for its negligence, bad faith or willful
misconduct.
(b) Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares
or the Receipts which in its opinion subject it to expense or liability unless
indemnity satisfactory to it against all expense and liability be furnished as
often as may be required.
(c) Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act in reliance
upon the written advice of legal counsel or accountants, or information from any
person presenting Stock for deposit, any holder of a Depositary Share or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's
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Agent, any Registrar and the Company may each rely and shall each be protected
in acting upon any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
(d) The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Stock or for the manner or effect of
any such vote, as long as any such action or non-action by the Depositary is in
good faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Agreement. The Depositary will indemnify the Company against any
liability which may arise out of acts performed or omitted by the Depositary or
its agents due to its or their negligence or bad faith.
(e) The Depositary, the Depositary's Agents, any Registrar and the Company may
own and deal in any class of securities of the Company and its affiliates and in
Depositary Shares. The Depositary may also act as transfer agent or registrar
of any of the securities of the Company and its affiliates.
(f) The Depositary hereby represents and warrants as follows: (i) the
Depositary has been duly organized and is validly existing and in good standing
under the laws of the State of ______, with full power, authority and legal
right under such law to execute, deliver and carry out the terms of this
Agreement; (ii) this Agreement has been duly authorized, executed and delivered
by the Depositary; and (iii) this Agreement constitutes a valid and binding
obligation of the Depositary, enforceable against the Depositary in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law). The Depositary shall not be accountable for
the use or application by the Company of the Depositary Shares or the Receipts
or the proceeds thereof.
Section 5.4. Resignation and Removal of the Depositary; Appointment of
Successor Depositary.
(a) The Depositary may at any time resign as Depositary hereunder by notice of
its election to do so delivered to the Company, such resignation to take effect
upon the appointment of a successor Depositary and its acceptance of such
appointment as hereinafter provided in Section 5.4(c).
(b) The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment
-16-
<PAGE>
of a successor Depositary and its acceptance of such appointment as hereinafter
provided in Section 5.4(c).
(c) In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Agreement, and such predecessor, upon payment of all sums
due it and on the written request of the Company, shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all rights, title
and interest in the Stock and any moneys or property held hereunder to such
successor and shall deliver to such successor a list of the Record Holders of
all outstanding Depositary Shares. Any successor Depositary shall promptly mail
notice of its appointment to the Record Holders of Depositary Shares.
(d) Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate the Receipts in the name of the predecessor
Depositary or in the name of the successor Depositary.
Section 5.5. Corporate Notices and Reports. The Company agrees that it will
transmit to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the Record Holders of Depositary Shares, in each case at
the address recorded in the Depositary's books, copies of all notices, reports
and communications (including financial statements) required by law, the rules
of any national securities exchange upon which the Stock, the Depositary Shares
or the Receipts are listed or by the Company's Charter (including the
Certificate of Designations) to be furnished by the Company to holders of the
Stock. Such transmission will be at the Company's expense and the Company will
provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit to
the Record Holders of Depositary Shares at the Company's expense such other
documents as may be requested by the Company.
-17-
<PAGE>
Section 5.6. Indemnification by the Company. The Company shall indemnify the
Depositary, any Depositary's Agent and any Registrar against, and hold each of
them harmless from, any loss, liability or expense (including the costs and
expenses of defending itself) which may arise out of (i) acts performed or
omitted in connection with this Agreement and the Depositary Shares (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence, willful
misconduct or bad faith on the respective parts of any such person or persons,
or (b) by the Company or any of its agents, or (ii) the offer, sale or
registration of the Depositary Shares or the Stock pursuant to the provisions
hereof. The obligations of the Company set forth in this Section 5.6 shall
survive any succession of any Depositary, Registrar or Depositary's Agent.
Section 5.7. Charges and Expenses. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of the
depositary arrangements. The Company shall pay all charges of the Depositary in
connection with the initial deposit of the Stock and the initial issuance of the
Receipts, any redemption of the Stock at the option of the Company and any
withdrawals of Stock by holders of Depositary Shares. All other transfer and
other taxes and governmental charges shall be at the expense of holders of
Depositary Shares. If, at the request of a holder of a Depositary Share, the
Depositary incurs charges or expenses for which the Depositary is not otherwise
liable hereunder, such holder will be liable for such charges and expenses. All
other charges and expenses of the Depositary, any Depositary's Agent hereunder
and any Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their respective obligations hereunder will be
paid upon consultation and agreement between the Depositary and the Company as
to the amount and nature of such charges and expenses. The Depositary shall
present its statement for charges and expenses to the Company once every three
months or at such other intervals as the Company and the Depositary may agree.
ARTICLE VI
Amendment and Termination
-------------------------
Section 6.1. Amendment. The form of the Receipts and any provisions of this
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary in any respect which they may deem necessary or
desirable; provided, however, that no such amendment which materially and
adversely alters the rights of the existing holders of Depositary Shares shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Depositary Share at the time any such amendment becomes effective
shall be deemed, by continuing to
-18-
<PAGE>
hold such Depositary Share, to consent and agree to such amendment and to be
bound by this Agreement as amended thereby. In no event shall any amendment
impair the right, subject to the provisions of Sections 2.3, 2.6 and Article
III, of any owner of Depositary Shares to surrender the Receipt evidencing such
Depositary Shares with instructions to the Depositary to deliver to the holder
the Stock and all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law.
Section 6.2. Termination.
(a) This Agreement may be terminated by the Company or the Depositary only
after (i) all outstanding Depositary Shares shall have been redeemed and any
accumulated and unpaid dividends on the Stock represented by the Depositary
Shares, together with all other moneys and property, if any, to which holders of
the related Receipts are entitled under the terms of such Receipts or this
Agreement, have been paid or distributed as provided in this Agreement or
provision therefor has been duly made pursuant to Section 2.3, or there shall
have been made a final distribution in respect of the Stock in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts pursuant to Section 4.1
or 4.2, as applicable and (ii) reasonable notice has been given to any holders
of Receipts.
(b) If any Receipts shall remain outstanding after the date of termination of
this Agreement, the Depositary thereafter shall discontinue the transfer of
Receipts, shall suspend the distribution of dividends to the holders thereof and
shall not give any further notices (other than notice of such termination) or
perform any further acts under this Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Stock, shall
sell rights, preferences or privileges as provided in Section 4.3 and shall
continue to deliver the Stock and any money and other property represented by
Receipts upon surrender by the holders thereof. At any time after the
expiration of two years from the date of termination, the Depositary may sell
Stock then held hereunder at public or private sale, at such places and upon
such terms as it deems proper and may thereafter hold the net proceeds of any
such sale, together with any money and other property held by it hereunder,
without liability for interest, for the benefit, pro rata in accordance with
their holdings, of the holders of Receipts that have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from
all obligations under this Agreement except to account for such net proceeds and
money and other property.
(c) Upon the termination of this Agreement, the Company shall be discharged
from all obligations under this Agreement except for its obligations to the
Depositary, any Depositary's Agents and any Registrar under Sections 5.6 and
5.7.
-19-
<PAGE>
ARTICLE VII
Miscellaneous
-------------
Section 7.1. Counterparts. This Agreement may be executed in any number of
counterparts, and by each of the parties hereto on separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed an
original, but all such counterparts taken together shall constitute one and the
same instrument.
Section 7.2. Exclusive Benefit of Parties. This Agreement is for the
exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.3. Invalidity of Provisions. In case any one or more of the
provisions contained in this Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4. Notices.
(a) Any and all notices to be given to the Company hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or telegram or telex confirmed by letter,
addressed to the Company at 1400 AmSouth-Sonat Tower, Birmingham, Alabama 35203,
to the attention of the Treasurer, or at any other address of which the Company
shall have notified the Depositary in writing.
(b) Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office or at any other
address of which the Depositary shall have notified the Company in writing.
(c) Any and all notices to be given to any Record Holder of a Depositary
Share hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail or by telegram or
telex confirmed by letter, addressed to such Record Holder at the address of
such Record Holder as it appears on the books of the Depositary, or if such
holder shall have filed with the
-20-
<PAGE>
Depositary a written request that notices intended for such holder be mailed to
some other address, at the address designated in such request.
(d) Delivery of a notice sent by mail or by telegram or telex shall be deemed
to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a telegram or telex message) is deposited,
postage prepaid, in a post office letter box. The Depositary or the Company may,
however, act upon any telegram or telex message received by it from the other or
from any holder of a Depositary Share, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
Section 7.5. Depositary's Agents. The Depositary may from time to time, with
the prior approval of the Company, appoint Depositary's Agents to act in any
respect for the Depositary for the purposes of this Agreement and may at any
time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action in writing.
Section 7.6. Holders of Receipts Are Parties. The holders of Depositary
Shares from time to time shall be parties to this Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts evidencing such
Depositary Shares by acceptance of delivery thereof.
Section 7.7. Governing Law. THIS AGREEMENT AND THE RECEIPTS AND ALL RIGHTS
HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 7.8. Inspection of Agreement. Copies of this Agreement shall be
filed with the Depositary and the Depositary's Agents and shall be open to
inspection during business hours at the Depositary's Office and the respective
offices of the Depositary's Agents, if any, by any holder of a Depository Share.
Section 7.9. Headings. The headings of articles and sections in this
Agreement and in the form of Receipt set forth in Exhibit A hereto have been
inserted for convenience only and are not to be regarded as part of this
Agreement or the Receipts or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
-21-
<PAGE>
In Witness Whereof, the Company and the Depositary have duly executed this
Agreement as of the day and year first above set forth, and all holders of
Depositary Shares shall become parties hereto by and upon acceptance by them of
delivery of Receipts evidencing such Depositary Shares and issued in accordance
with the terms hereof.
AMSOUTH BANCORPORATION
By:_______________________
Name:
Title:
[NAME OF DEPOSITARY]
By:_______________________
Authorized Officer
-22-
<PAGE>
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING ____________________ PREFERRED STOCK
AMSOUTH BANCORPORATION
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in the City of ____________________
______________________________, as Depositary, (the "Depositary"), hereby
certifies that ______________________________ is the registered owner of
____________________ Depositary Shares ("Depositary Shares"), each Depositary
Share representing ____________________ of one share of ____________________
Preferred Stock, Series __, without par value (the "Stock"), of AmSouth
Bancorporation, a Delaware corporation (the "Company"), on deposit with the
Depositary and the same proportionate interest in any and all other property
received by the Depositary in respect of such share of Stock held by the
Depositary, subject to the terms and entitled to the benefits of the Agreement
dated as of ____________________, 199- (the "Agreement"), between the Company,
the Depositary and all holders from time to time of Depositary Receipts. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Agreement. This
Depositary Receipt shall not be valid or obligatory for any purpose or entitled
to any benefits under the Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in
<PAGE>
facsimile by the Depositary, countersigned by a Registrar in respect of the
Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated: Depositary
By:__________________________
Authorized Officer
Registrar
By:__________________________
Authorized Officer
-2-
<PAGE>
[FORM OF REVERSE OF RECEIPT]
AMSOUTH BANCORPORATION
AmSouth Bancorporation will furnish without charge to each receiptholder who
so requests a copy of the Agreement and a statement or summary of the powers,
designations, preferences and relative, participating, optional or other special
rights of each class of stock or series thereof which AmSouth Bancorporation is
authorized to issue and the qualifications, limitations or restrictions of such
preferences and/or rights. Any such request is to be addressed to the Secretary
of AmSouth Bancorporation.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _____________ Custodian ____________
(Cust) (Minor)
under the Uniform Gifts to Minors Act _______
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto _____________________________
(Please insert social security or other identifying number of
Assignee)
____________________________________________________________
Please print or typewrite Name and address including postal Zip Code of Assignee
____________________ Depositary Shares represented by the within receipt and all
rights thereunder, and do hereby irrevocably constitute and appoint
<PAGE>
____________________ Attorney to transfer said Depositary Shares on the books of
the within-named Depositary with full power of substitution in the premises.
Dated: ____________________
___________________________________
NOTICE. The signature to this assignment must correspond with the name as
written upon the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
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EXHIBIT 4(i)
================================================================================
AMSOUTH BANCORPORATION
TO
.........................................................
Trustee
--------------
INDENTURE
Dated as of ...................
--------------
UNSECURED SENIOR DEBT SECURITIES
================================================================================
<PAGE>
..............................................................
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
ss.310(a)(1) ............................................... 609
(a) (2) ............................................... 609
(a) (3) ............................................... Not Applicable
(a) (4) ............................................... Not Applicable
(b) ............................................... 608
610
ss.311(a) ............................................... 613
(b) ............................................... 613
ss.312(a) ............................................... 701
702
(b) ............................................... 702
(c) ............................................... 702
ss.313(a) ............................................... 703
(b) ............................................... 703
(c) ............................................... 703
(d) ............................................... 703
ss.314(a) ............................................... 704
(a)(4) ............................................... 101
1004
(b) ............................................... Not Applicable
(c)(1) ............................................... 102
(c)(2) ............................................... 102
(c)(3) ............................................... Not Applicable
(d) ............................................... Not Applicable
(e) ............................................... 102
ss.315(a) ............................................... 601
(b) ............................................... 602
(c) ............................................... 601
(d) ............................................... 601
(e) ............................................... 514
ss.316(a) ............................................... 101
(a)(1)(A) ............................................... 502
512
(a)(1)(B) ............................................... 513
(a)(2) ............................................... Not Applicable
(b) ............................................... 508
(c) ............................................... 104
ss.317(a)(1) ............................................... 503
(a)(2) ............................................... 504
(b) ............................................... 1003
ss.318(a) ............................................... 107
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
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PAGE
<S> <C>
PARTIES.................................................................................... 1
RECITALS OF THE COMPANY.................................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act..................................................................... 2
Affiliate; control...................................................... 2
Authenticating Agent.................................................... 2
Bank.................................................................... 2
Board of Directors...................................................... 2
Board Resolution........................................................ 2
Business Day............................................................ 2
Commission.............................................................. 2
Company................................................................. 2
Company Request; Company Order.......................................... 3
Corporate Trust Office.................................................. 3
corporation............................................................. 3
Covenant Defeasance..................................................... 3
Defaulted Interest...................................................... 3
Defeasance.............................................................. 3
Depositary.............................................................. 3
Event of Default........................................................ 3
Exchange Act............................................................ 3
Expiration Date......................................................... 3
Foreign Government Obligation........................................... 3
Global Security......................................................... 3
Holder.................................................................. 3
Indenture............................................................... 3
interest................................................................ 4
Interest Payment Date................................................... 4
Investment Company Act.................................................. 4
Maturity................................................................ 4
Notice of Default....................................................... 4
Officers' Certificate................................................... 4
Opinion of Counsel...................................................... 4
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C>
Original Issue Discount Security........................................ 4
Outstanding............................................................. 4
Paying Agent............................................................ 5
Person.................................................................. 5
Place of Payment........................................................ 5
Predecessor Security.................................................... 6
Principal Subsidiary Bank............................................... 6
Redemption Date......................................................... 6
Redemption Price........................................................ 6
Regular Record Date..................................................... 6
Responsible Officer..................................................... 6
Securities.............................................................. 6
Securities Act.......................................................... 6
Security Register; Security Registrar................................... 6
Special Record Date..................................................... 6
Stated Maturity......................................................... 6
Subsidiary.............................................................. 7
Trust Indenture Act..................................................... 7
Trustee................................................................. 7
U.S. Government Obligation.............................................. 7
Vice President.......................................................... 7
SECTION 102. Compliance Certificates and Opinions.................................... 7
SECTION 103. Form of Documents Delivered to Trustee.................................. 8
SECTION 104. Acts of Holders; Record Dates........................................... 9
SECTION 105. Notices, Etc., to Trustee and Company................................... 11
SECTION 106. Notice to Holders; Waiver............................................... 11
SECTION 107. Conflict with Trust Indenture Act....................................... 12
SECTION 108. Effect of Headings and Table of Contents................................ 12
SECTION 109. Successors and Assigns.................................................. 12
SECTION 110. Separability Clause..................................................... 12
SECTION 111. Benefits of Indenture................................................... 12
SECTION 112. Governing Law........................................................... 12
SECTION 113. Legal Holidays.......................................................... 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally......................................................... 13
SECTION 202. Form of Face of Security................................................ 13
</TABLE>
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<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 203. Form of Reverse of Security............................................. 15
SECTION 204. Form of Legend for Global Securities.................................... 19
SECTION 205. Form of Trustee's Certificate of Authentication......................... 20
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.................................... 20
SECTION 302. Denominations........................................................... 23
SECTION 303. Execution, Authentication, Delivery and Dating.......................... 23
SECTION 304. Temporary Securities.................................................... 24
SECTION 305. Registration, Registration of Transfer and Exchange..................... 25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........................ 27
SECTION 307. Payment of Interest; Interest Rights Preserved.......................... 27
SECTION 308. Persons Deemed Owners................................................... 28
SECTION 309. Cancellation............................................................ 29
SECTION 310. Computation of Interest................................................. 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................. 29
SECTION 402. Application of Trust Money.............................................. 30
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default....................................................... 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment...................... 33
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.............................................. 34
SECTION 504. Trustee May File Proofs of Claim........................................ 34
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities....................................................... 35
SECTION 506. Application of Money Collected.......................................... 35
</TABLE>
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<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 507. Limitation on Suits..................................................... 35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest................................................ 36
SECTION 509. Restoration of Rights and Remedies...................................... 36
SECTION 510. Rights and Remedies Cumulative.......................................... 37
SECTION 511. Delay or Omission Not Waiver............................................ 37
SECTION 512. Control by Holders...................................................... 37
SECTION 513. Waiver of Past Defaults................................................. 37
SECTION 514. Undertaking for Costs................................................... 38
SECTION 515. Waiver of Usury, Stay or Extension Laws................................. 38
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities..................................... 39
SECTION 602. Notice of Defaults...................................................... 39
SECTION 603. Certain Rights of Trustee............................................... 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities.................. 40
SECTION 605. May Hold Securities..................................................... 40
SECTION 606. Money Held in Trust..................................................... 41
SECTION 607. Compensation and Reimbursement.......................................... 41
SECTION 608. Conflicting Interests................................................... 41
SECTION 609. Corporate Trustee Required; Eligibility................................. 42
SECTION 610. Resignation and Removal; Appointment of Successor....................... 42
SECTION 611. Acceptance of Appointment by Successor.................................. 43
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business......................................................... 44
SECTION 613. Preferential Collection of Claims Against Company....................... 45
SECTION 614. Appointment of Authenticating Agent..................................... 45
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders.......................................................... 47
SECTION 702. Preservation of Information; Communications
to Holders.......................................................... 47
</TABLE>
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<TABLE>
<CAPTION>
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<S> <C> <C>
SECTION 703. Reports by Trustee...................................................... 47
SECTION 704. Reports by Company...................................................... 48
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms....................................................... 48
SECTION 802. Successor Substituted................................................... 49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders...................... 49
SECTION 902. Supplemental Indentures With Consent of Holders......................... 51
SECTION 903. Execution of Supplemental Indentures.................................... 52
SECTION 904. Effect of Supplemental Indentures....................................... 52
SECTION 905. Conformity with Trust Indenture Act..................................... 52
SECTION 906. Reference in Securities to Supplemental Indentures...................... 52
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.............................. 52
SECTION 1002. Maintenance of Office or Agency......................................... 53
SECTION 1003. Money for Securities Payments to Be Held in Trust....................... 53
SECTION 1004. Statement by Officers as to Default..................................... 54
SECTION 1005. Existence............................................................... 54
SECTION 1006. Maintenance of Properties............................................... 55
SECTION 1007. Payment of Taxes and Other Claims....................................... 55
SECTION 1008. Waiver of Certain Covenants............................................. 56
</TABLE>
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<TABLE>
<CAPTION>
PAGE
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<S> <C> <C>
SECTION 1101. Applicability of Article................................................ 57
SECTION 1102. Election to Redeem; Notice to Trustee................................... 57
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....................... 57
SECTION 1104. Notice of Redemption.................................................... 58
SECTION 1105. Deposit of Redemption Price............................................. 59
SECTION 1106. Securities Payable on Redemption Date................................... 59
SECTION 1107. Securities Redeemed in Part............................................. 59
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article................................................ 60
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities................... 60
SECTION 1203. Redemption of Securities for Sinking Fund............................... 60
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance................................................. 61
SECTION 1302. Defeasance and Discharge................................................ 61
SECTION 1303. Covenant Defeasance..................................................... 62
SECTION 1304. Conditions to Defeasance or Covenant Defeasance......................... 62
SECTION 1305. Deposited Money, U.S. Government Obligations and
Foreign Government Obligations to Be Held in
Trust; Miscellaneous Provisions..................................... 64
SECTION 1306. Reinstatement........................................................... 65
TESTIMONIUM................................................................................ 66
SIGNATURES AND SEALS....................................................................... 66
ACKNOWLEDGMENTS............................................................................ 67
</TABLE>
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INDENTURE, dated as of ................, between AmSouth Bancorporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 1400 AmSouth-Sonat
Tower, 1900 Fifth Avenue North, Birmingham, Alabama, and
.............................., a ........................... duly organized and
existing under the laws of ........, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles"
<PAGE>
with respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Bank" means (i) any institution which accepts deposits that the depositor
has a legal right to withdraw on demand and engages in the business of making
commercial loans, and (ii) any trust company.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
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<PAGE>
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
................................. at which at any particular time its corporate
trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Foreign Government Obligation" has the meaning specified in Section 1304.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this
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<PAGE>
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as contemplated
by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an instalment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(4) or 501(5).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company
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<PAGE>
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securi ties or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
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<PAGE>
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Subsidiary Bank" means any Subsidiary which is a Bank and has
total assets equal to 30 percent or more of the consolidated assets of the
Company determined as of the date of the most recent audited financial
statements of such entities.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
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<PAGE>
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
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<PAGE>
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condi tion or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record
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date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company,
at its own expense, shall cause notice of such record date, the proposed action
by Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
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Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention:
................., or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it at the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding
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any other provision of this Indenture or of the Securities (other than a
provision of any Security which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same force
and effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION, THE BANK INSURANCE FUND, THE SAVINGS ASSOCIATION
INSURANCE FUND OR ANY OTHER GOVERNMENTAL AGENCY.
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AMSOUTH BANCORPORATION
..........................................................................
No. ......... $ ........
AmSouth Bancorporation, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to............................................,
or registered assigns, the principal sum of........................... Dollars
on.................................................. [if the Security is to
bear interest prior to Maturity, insert -- , and to pay interest thereon from
............. or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semi-annually on ............ and
............ in each year, commencing ........., at the rate of ....% per annum,
until the principal hereof is paid or made available for payment [if applicable,
insert -- , provided that any principal and premium, and any such instalment of
interest, which is overdue shall bear interest at the rate of ...% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand]. The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the ....... or
....... (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforceable), from the date of such demand until the
amount so demanded is paid or made available for payment. Interest on any
overdue interest shall be payable on demand.]]
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Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AMSOUTH BANCORPORATION
By.................................
Attest:
.........................................
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ............... (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and ..................., as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $...........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year
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commencing with the year ...... and ending with the year ...... through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, and (2)] at any time [if applicable, insert -- on
or after .........., 19..], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [if applicable, insert -- on or before
..............., ...%, and if redeemed] during the 12-month period beginning
............. of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ------------- ---------------------
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and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or other wise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to ............., redeem any Securities of this series as
contemplated by [if applicable, insert -- Clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application,
directly or indirectly, of moneys borrowed having an interest cost to the
Company (calculated in accordance with generally accepted financial practice) of
less than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for
the redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default with respect to this Security] [, in
each case] upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert
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<PAGE>
formula for determining the amount. Upon payment (i) of the amount of principal
so declared due and payable and (ii) of interest on any overdue principal,
premium and inter est (in each case to the extent that the payment of such
interest shall be legally enforceable), all of the Company's obligations in
respect of the payment of the principal of and premium and interest, if any, on
the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
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<PAGE>
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
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<PAGE>
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
..........................................,
As Trustee
By.........................................
Authorized Officer
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates
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<PAGE>
on which any such interest shall be payable and the Regular Record Date for
any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within
which, the price or prices at which and the terms and conditions upon which
any Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity,
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the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon
any Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such
case, the manner in which such amount deemed to be the principal amount shall
be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in
addition to or in lieu of that set forth in Section 204 and any circumstances
in addition to or in lieu of those set forth in Clause (2) of the last
paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such
Global Security in whole or in part may be registered, in the name or names
of Persons other than the Depositary for such Global Security or a nominee
thereof;
(17) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
901(5)).
All Securities of any one series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
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<PAGE>
SECTION 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securi ties of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant
to Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency,
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<PAGE>
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or
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more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggre gate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
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If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or
a nominee thereof unless (A) such Depositary (i) has notified the Company
that it is unwilling or unable to continue as Depositary for such Global
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (C) there shall exist such
circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the
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same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obli gation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Securities of such series in the
manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of busi ness on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue,
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and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter
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repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date
of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Principal Subsidiary
Bank (including a default with respect to Securities of any series other than
that series) having an aggregate principal amount outstanding of in excess of
$25,000,000, or under any mortgage, indenture or instrument (including this
Indenture) under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company or any
Principal Subsidiary Bank having an aggregate principal amount outstanding of
in excess of $25,000,000, whether such indebtedness now exists or shall
hereafter be created, which default (A) shall constitute a failure to pay any
portion of the principal of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto or (B) shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without, in the case of Clause (A),
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such indebtedness having been discharged or without, in the case of Clause
(B), such indebtedness having been discharged or such acceleration having
been rescinded or annulled, in each such case within a period of 60 days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company to cause
such indebtedness to be discharged or cause such acceleration to be rescinded
or annulled, as the case may be, and stating that such notice is a "Notice of
Default" hereunder, unless in either case (A) or (B) such default is
contested in good faith by appropriate proceedings; provided, however, that,
subject to the provisions of Sections 601 and 602, the Trustee shall not be
deemed to have knowledge of such default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default or (B) the
Trustee shall have received written notice thereof from the Company, from any
Holder, from the holder of any such indebtedness or from the trustee under
any such mortgage, indenture or other instrument; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Principal
Subsidiary Bank in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Company or any Principal Subsidiary
Bank a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Principal Subsidiary Bank under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any Principal Subsidiary Bank or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 60 consecutive days; or
(7) the commencement by the Company or any Principal Subsidiary Bank of a
voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or the consent
by it to the entry of a decree or order for relief in respect of the Company
or any Principal Subsidiary Bank in an involuntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or
State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or
any Principal Subsidiary Bank or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company or any
Principal Subsidiary Bank in furtherance of any such action; or
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(8) any other Event of Default provided with respect to Securities of that
series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(6) or 501(7)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 501(6)
or 501 (7) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
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(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, seque strator
or other similar official in any such judicial proceeding is hereby authorized
by
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each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
and
SECOND: To the payment of the amounts then due and unpaid for principal
of and any premium and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and any premium and interest, respectively.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securi ties of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Inden ture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting
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any action hereunder, the Trustee (unless other evidence be herein
specifically pre scribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any
of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authen ticating Agent, Paying Agent, Security
Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of
an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reason able compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negli gence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series [or a trustee under -- list here any prior
indentures between the Company and the Trustee that have not been satisfied and
discharged and that may be excluded by the proviso to Section 310(b)(1) of the
Trust Indenture Act].
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such, has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in the Borough of Manhattan, The City of New York. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this Section
and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one
or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public
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officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect
to all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become
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effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such
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Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenti cating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
........................................,
As Trustee
By......................................,
As Authenticating Agent
By.......................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than ............... and ...............
.... in each year, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of each
series as of the preceding .............. or .............., as the case may
be, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such
list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee
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in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than ............ in each calendar
year, commencing in ............
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or trust,
shall be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest on all the Securities and the
performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company or
such successor Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating
to such transaction have been complied with.
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SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of Default
are to be for the benefit of less than all series of Securities, stating that
such additional Events of Default are expressly being included solely for the
benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form; or
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(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security
of any series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision nor (ii) modify the rights of
the Holder of any such Security with respect to such provi sion or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and
to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall
not adversely affect the interests of the Holders of Securities of any series
in any material respect.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supple mental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original
Issue Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on or
after the
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Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1008, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Out standing Security affected thereby; provided,
however, that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1008, or the deletion of this
proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for pay ment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for
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any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal,
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premium or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence and
that of each Principal Subsidiary and the rights (charter and statutory) and
franchises of the Company and each Principal Subsidiary; provided, however, that
the Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Principal
Subsidiaries and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from
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discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 301(18),
901(2) or 901(7) for the benefit of the Holders of such series if before the
time for such compliance the Holders of not less than a majority in principal
amount of the Outstanding Securities of such series shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities
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redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification (and,
in the case of partial redemption of any such Securities, the principal
amounts) of the particular Securities to be redeemed and, if less than all
the Outstanding Securities of any series consisting of a single Security are
to be redeemed, the principal amount of the particular Security to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee
or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms
of any Securities is herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided for by the terms of
such Securities is herein
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referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities as provided for by the terms of such
Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than ........ days prior to each sinking fund payment date for
any Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than ......... days prior to each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Section 801(3),
Sections 1006 through 1008, inclusive, and any covenants provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such
Securities and (2) the occurrence of any event specified in Sections 501(4)
(with respect to any of Section 801(3), Sections 1006 through 1008,
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inclusive, and any such covenants provided pursuant to Section 301(18),
901(2) or 901(7)), 501(5) and 501(8) shall be deemed not to be or result in an
Event of Default, in each case with respect to such Securities as provided in
this Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the extent
so specified in the case of Section 501(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated
solely to, the benefits of the Holders of such Securities, (A) in the case of
Securities denominated in a foreign currency, money in such foreign currency
or Foreign Government Obligations of the foreign government or governments
issuing such foreign currency which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, such
foreign currency in an amount, or (B) in the case of Securities denominated
in U.S. dollars, U.S. dollars or U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, U.S. dollars in an amount, or (C) a combination of
money and Foreign Government Obligations or U.S. Government Obligations (as
applicable), in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or any such other qualifying trustee)
to pay and discharge, the principal of and any premium and interest on such
Securities on the respective Stated Maturities, in accordance with the terms
of this Indenture and such Securities. As used herein, "U.S. Government
Obligation" means (x) any security which is (i) a direct obligation of the
United States of America for the payment of which the full faith and credit
of the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case (i) or (ii), is not
callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by
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a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any U.S. Government Obligation which is specified in Clause
(x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of
or interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt. As used herein, "Foreign Government
Obligation" means any security denominated in a foreign currency which is (i)
a direct obligation of a foreign government or governments for the payment of
which the full faith and credit of such foreign government or governments is
pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of such foreign government or
governments the payment of which is unconditionally guaranteed as a full
faith and credit obligation by such foreign government, which, in either case
(i) or (ii) is not callable or redeemable at the option of the issuer
thereof.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (A)(x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date of this instrument, there has
been a change in the applicable Federal income tax law, in either case (x) or
(y) to the effect that, and based thereon such opinion shall confirm that,
the Holders of such Securities will not recognize gain or loss for Federal
income tax purposes as a result of the deposit, Defeasance and discharge to
be effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to occur
and (B) if Securities of such series Securities are then listed on the New
York Stock Exchange, to the effect that the Securities of such series will
not be delisted as a result of such election.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Securities will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event
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specified in Sections 501(6) and (7), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the
meaning of the Investment Company Act unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been
complied with.
SECTION 1305. Deposited Money, U.S. Government Obligations and Foreign
Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money, U.S. Government Obligations and Foreign Government Obligations (including
the proceeds thereof) deposited with the Trustee or other qualifying trustee
(solely for purposes of this Section and Section 1306, the Trustee and any such
other trustee are referred to collectively as the "Trustee") pursuant to Section
1304 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and any premium and interest, but money so held
in trust need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations or
Foreign Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations or Foreign Government Obligations held by
it as provided in
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<PAGE>
Section 1304 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
------------------------------------
-65-
<PAGE>
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL] AMSOUTH BANCORPORATION
By.........................................
Attest:
......................................
...........................................
By.........................................
Attest:
......................................
-66-
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came.........,
to me known, who, being by me duly sworn, did depose and say that he is
.................... of AmSouth Bancorporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
...............................................
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the .... day of ..........., ...., before me personally came ........,
to me known, who, being by me duly sworn, did depose and say that he is
.................... of ................................., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
...............................................
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<PAGE>
EXHIBIT 4(K)
================================================================================
AMSOUTH BANCORPORATION
TO
BANKERS TRUST COMPANY
Trustee
______________
INDENTURE
Dated as of May 25, 1994
______________
SUBORDINATED DEBT SECURITIES
===============================================================================
<PAGE>
..............................................................
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
(S) 310(a)(1) ..................................... 609
(a)(2) ..................................... 609
(a)(3) ..................................... Not Applicable
(a)(4) ..................................... Not Applicable
(b) ..................................... 608
610
(S) 311(a) ..................................... 613
(b) ..................................... 613
(S) 312(a) ..................................... 701
702
(b) ..................................... 702
(c) ..................................... 702
(S) 313(a) ..................................... 703
(b) ..................................... 703
(c) ..................................... 703
(d) ..................................... 703
(S) 314(a) ..................................... 704
(a)(4) ..................................... 101
1004
(b) ..................................... Not Applicable
(c)(1) ..................................... 102
(c)(2) ..................................... 102
(c)(3) ..................................... Not Applicable
(d) ..................................... Not Applicable
(e) ..................................... 102
(S) 315(a) ..................................... 601
(b) ..................................... 602
(c) ..................................... 601
(d) ..................................... 601
(e) ..................................... 514
(S) 316(a) ..................................... 101
(a)(1)(A) ..................................... 502
512
(a)(1)(B) ..................................... 513
(a)(2) ..................................... Not Applicable
(b) ..................................... 508
(c) ..................................... 104
(S) 317(a)(1) ..................................... 503
(a)(2) ..................................... 504
(b) ..................................... 1003
(S) 318(a) ..................................... 107
</TABLE>
<PAGE>
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
-----------
<TABLE>
<CAPTION>
Page
----
<S> <C>
Recitals of the Company ............................................ 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions:
Act.................................................. 2
Affiliate; control................................... 2
Authenticating Agent................................. 2
Bank................................................. 2
Board of Directors................................... 2
Board Resolution..................................... 2
Business Day......................................... 2
Commission........................................... 2
Company.............................................. 2
Company Request; Company Order....................... 3
Corporate Trust Office............................... 3
corporation.......................................... 3
Covenant Defeasance.................................. 3
Default.............................................. 3
Defaulted Interest................................... 3
Defeasance........................................... 3
Depositary........................................... 3
Entitled Persons..................................... 3
Event of Default..................................... 3
Excess Proceeds...................................... 3
Exchange Act......................................... 3
Existing Subordinated Indebtedness................... 3
Expiration Date...................................... 3
Foreign Government Obligation........................ 3
Global Security...................................... 4
Holder............................................... 4
Indenture............................................ 4
interest............................................. 4
Interest Payment Date................................ 4
Investment Company Act............................... 4
Maturity............................................. 4
</TABLE>
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Notice of Default....................................... 4
Officers' Certificate................................... 4
Opinion of Counsel...................................... 4
Original Issue Discount Security........................ 4
Other Financial Obligations............................. 5
Outstanding............................................. 5
Paying Agent............................................ 6
Person.................................................. 6
Place of Payment........................................ 6
Predecessor Security.................................... 6
Redemption Date......................................... 6
Redemption Price........................................ 6
Regular Record Date..................................... 7
Responsible Officer..................................... 7
Securities.............................................. 7
Securities Act.......................................... 7
Security Register and Security Registrar................ 7
Senior Indebtedness..................................... 7
Special Record Date..................................... 7
Stated Maturity......................................... 8
Subsidiary.............................................. 8
Trust Indenture Act..................................... 8
Trustee................................................. 8
U.S. Government Obligation.............................. 8
Vice President.......................................... 8
Section 102. Compliance Certificates and Opinions.................... 8
Section 103. Form of Documents Delivered to Trustee.................. 9
Section 104. Acts of Holders; Record Dates........................... 9
Section 105. Notices, Etc., to Trustee and Company................... 12
Section 106. Notice to Holders; Waiver............................... 12
Section 107. Conflict with Trust Indenture Act....................... 12
Section 108. Effect of Headings and Table of Contents................ 13
Section 109. Successors and Assigns.................................. 13
Section 110. Separability Clause..................................... 13
Section 111. Benefits of Indenture................................... 13
Section 112. Governing Law........................................... 13
Section 113. Legal Holidays.......................................... 13
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE TWO
Security Forms
Section 201. Forms Generally........................................ 14
Section 202. Form of Face of Security............................... 14
Section 203. Form of Reverse of Security............................ 16
Section 204. Form of Legend for Global Securities................... 21
Section 205. Form of Trustee's Certificate of Authentication........ 21
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series................... 21
Section 302. Denominations.......................................... 24
Section 303. Execution, Authentication, Delivery and Dating......... 24
Section 304. Temporary Securities................................... 26
Section 305. Registration, Registration of Transfer and Exchange.... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities....... 28
Section 307. Payment of Interest; Interest Rights Preserved......... 29
Section 308. Persons Deemed Owners.................................. 30
Section 309. Cancellation........................................... 31
Section 310. Computation of Interest................................ 31
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture................. 31
Section 402. Application of Trust Money.............................. 32
</TABLE>
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<PAGE>
<TABLE>
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<S> <C>
ARTICLE FIVE
Remedies
Section 501. Events of Default...................................... 33
Section 502. Acceleration of Maturity; Rescission and Annulment..... 34
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee............................. 35
Section 504. Trustee May File Proofs of Claim....................... 36
Section 505. Trustee May Enforce Claims Without Possession
of Securities...................................... 36
Section 506. Application of Money Collected......................... 37
Section 507. Limitation on Suits.................................... 37
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest............................... 38
Section 509. Restoration of Rights and Remedies..................... 38
Section 510. Rights and Remedies Cumulative......................... 38
Section 511. Delay or Omission Not Waiver........................... 38
Section 512. Control by Holders..................................... 39
Section 513. Waiver of Past Defaults................................ 39
Section 514. Undertaking for Costs.................................. 39
Section 515. Waiver of Usury, Stay or Extension Laws................ 40
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities..................... 40
Section 602. Notice of Defaults...................................... 40
Section 603. Certain Rights of Trustee............................... 41
Section 604. Not Responsible for Recitals or Issuance of Securities.. 42
Section 605. May Hold Securities..................................... 42
Section 606. Money Held in Trust..................................... 42
Section 607. Compensation and Reimbursement.......................... 42
Section 608. Conflicting Interests................................... 43
Section 609. Corporate Trustee Required; Eligibility................. 43
Section 610. Resignation and Removal; Appointment of Successor....... 44
Section 611. Acceptance of Appointment by Successor.................. 45
</TABLE>
-iv-
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
Section 612. Merger, Conversion, Consolidation or Succession
to Business......................................... 46
Section 613. Preferential Collection of Claims Against Company....... 47
Section 614. Appointment of Authenticating Agent..................... 47
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses
of Holders.......................................... 49
Section 702. Preservation of Information; Communications
to Holders.......................................... 49
Section 703. Reports by Trustee...................................... 49
Section 704. Reports by Company...................................... 50
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on
Certain Terms...................................... 50
Section 802. Successor Substituted.................................. 51
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders..... 51
Section 902. Supplemental Indentures With Consent of Holders........ 52
Section 903. Execution of Supplemental Indentures................... 53
Section 904. Effect of Supplemental Indentures...................... 54
Section 905. Conformity with Trust Indenture Act.................... 54
Section 906. Reference in Securities to Supplemental Indentures..... 54
Section 907. Subordination Unimpaired............................... 54
</TABLE>
-v-
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest............. 55
Section 1002. Maintenance of Office or Agency........................ 55
Section 1003. Money for Securities Payments to Be Held in Trust...... 55
Section 1004. Statement by Officers as to Default.................... 57
Section 1005. Existence.............................................. 57
Section 1006. Maintenance of Properties.............................. 57
Section 1007. Payment of Taxes and Other Claims...................... 57
Section 1008. Waiver of Certain Covenants............................ 58
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article............................... 58
Section 1102. Election to Redeem; Notice to Trustee.................. 58
Section 1103. Selection by Trustee of Securities to Be Redeemed...... 59
Section 1104. Notice of Redemption................................... 59
Section 1105. Deposit of Redemption Price............................ 60
Section 1106. Securities Payable on Redemption Date.................. 60
Section 1107. Securities Redeemed in Part............................ 61
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article............................... 61
Section 1202. Satisfaction of Sinking Fund Payments with Securities.. 61
Section 1203. Redemption of Securities for Sinking Fund.............. 62
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or
Covenant Defeasance................................ 62
Section 1302. Defeasance and Discharge............................... 62
Section 1303. Covenant Defeasance.................................... 63
Section 1304. Conditions to Defeasance or Covenant Defeasance........ 63
Section 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Miscellaneous Provisions...... 66
Section 1306. Reinstatement.......................................... 66
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Indebtedness.......... 67
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc......... 67
Section 1403. Prior Payment to Senior Indebtedness Upon
Acceleration of Securities......................... 68
Section 1404. No Payment When Senior Indebtedness in Default......... 69
Section 1405. Payment Permitted in Certain Situations................ 70
Section 1406. Subrogation to Rights of Holders of
Senior Indebtedness................................ 70
Section 1407. Provisions Solely to Define Relative Rights............ 70
Section 1408. Trustee to Effectuate Subordination.................... 71
Section 1409. No Waiver of Subordination Provisions.................. 71
Section 1410. Notice to Trustee...................................... 72
Section 1411. Reliance on Judicial Order or Certificate
of Liquidating Agent............................... 72
Section 1412. Trustee Not Fiduciary for Holders of Senior
Indebtedness or Entitled Persons................... 73
Section 1413. Rights of Trustee as Holder of Senior
Indebtedness or Entitled Person;
Preservation of Trustee's Rights................... 73
Section 1414. Article Applicable to Paying Agents.................... 73
Section 1415. Securities to Rank Pari Passu with Existing
Subordinated Indebtedness.......................... 73
Testimonium............................................................ 75
Signatures and Seals................................................... 75
Acknowledgements....................................................... 76
</TABLE>
-viii-
<PAGE>
INDENTURE, dated as of May 25, 1994, between AmSouth Bancorporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 1400 AmSouth-Sonat
Tower, Birmingham, Alabama, and Bankers Trust Company, a New York banking
corporation, as Trustee (herein called the "Trustee").
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture
to provide for the issuance from time to time of its unsecured debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company,
in accordance with its terms, have been done.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally
accepted accounting prin-
<PAGE>
ciples" with respect to any computation required or permitted hereunder shall
mean such accounting principles as are generally accepted at the date of such
computation;
(4) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be, of this
Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to
Section 614 to act on behalf of the Trustee to authenticate Securities of one or
more series.
"Bank" means (i) any institution which accepts deposits that the depositor
has a legal right to withdraw on demand and engages in the business of making
commercial loans, and (ii) any trust company.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, from time to time
constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
-2-
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order signed
in the name of the Company by its Chairman of the Board, its Vice Chairman of
the Board, its President or a Vice President, and by its Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee in The
City of New York at which at any particular time its corporate trust business
shall be administered, which office at the date hereof is located at Four Albany
Street, New York, New York, 10006, Attention: Corporate Trust and Agency Group.
"corporation" means a corporation, association, company, joint-stock company
or business trust.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Default" has the meaning specified in Section 503.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 301.
"Entitled Persons" means any Person entitled to payment pursuant to the terms
of "Other Financial Obligations."
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning set forth in Section 1415(c).
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Existing Subordinated Indebtedness" means the Company's 9 3/8% Subordinated
Capital Notes due 1999 and the Company's 7 1/2% Convertible Subordinated
Debentures due August 1, 2001.
"Expiration Date" has the meaning specified in Section 104.
-3-
<PAGE>
"Foreign Government Obligation" has the meaning specified in Section 1304.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an instalment of interest on such Security.
"Investment Company Act" means the Investment Company Act of 1940 and any
statute successor thereto, in each case as amended from time to time.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an instalment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
503(2)(C).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the President or a Vice President, and by
the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary,
of the Company, and delivered to the Trustee. One of the officers signing an
Officers' Certificate given pursuant to Section 1004 shall be the principal
executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee, in form and
substance acceptable to the Trustee.
-4-
<PAGE>
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Other Financial Obligations" means, unless otherwise determined with respect
to any series of Securities pursuant to Section 301, (a) obligations of the
Company under direct credit substitutes, (b) obligations of, or any such
obligation directly or indirectly guaranteed by, the Company for purchased money
or funds, (c) any deferred obligation of, or any such obligation directly or
indirectly guaranteed by, the Company incurred in connection with the
acquisition of any business, properties or assets not evidenced by a note or
similar instrument given in connection therewith, and (d) all obligations of the
Company to make payment pursuant to the terms of financial instruments such as
(i) securities contracts and foreign currency exchange contracts, (ii)
derivative instruments, such as swap agreements (including interest rate and
foreign exchange rate swap agreements), cap agreements, floor agreements, collar
agreements, interest rate agreements, foreign exchange rate agreements, options,
commodity futures contracts and commodity options contracts and (iii) financial
instruments similar to those set forth in (d)(i) or (d)(ii) above; provided,
however, that Other Financial Obligations shall not include (A) obligations on
account of Senior Indebtedness and (B) obligations on account of indebtedness
for money borrowed ranking pari passu with or subordinate to the Securities,
including, without limitation, Existing Subordinated Indebtedness.
"Outstanding", when used with respect to Securities, means, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
-5-
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, (A) the principal amount of an Original Issue
Discount Security which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Out standing, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
-6-
<PAGE>
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee, including any Vice
President, Assistant Vice President, Assistant Treasurer, Assistant Secretary or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (a) all indebtedness of the Company (including indebtedness of
others guaranteed by the Company), other than the Securities and obligations on
account of Existing Subordinated Indebtedness whether outstanding on the date of
this Indenture or thereafter created, incurred or assumed, which is (i) for
money borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets of any
kind, and (b) amendments, renewals, extensions, modifications or refundings of
any such indebtedness, unless in any case in the instrument creating or
evidencing any such indebtedness or pursuant to which the same is outstanding it
is provided that such indebtedness is not superior in right of payment to the
Securities or is to rank pari passu with or subordinate to the Securities.
"Special Record Date" for the payment of any Defaulted Interest means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any instalment
of principal thereof or interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
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"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"U.S. Government Obligation" has the meaning specified in Section 1304.
"Vice President", when used with respect to the Company or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1004) shall include,
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
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<PAGE>
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person,
or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion with respect to some matters and one or
more other such Persons as to other matters, and any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar
as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly
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required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its own
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expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (iv) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
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Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act
of Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if made,
given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust and Agency Group, or at any other
address previously furnished in writing to the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes
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<PAGE>
any provision of the Trust Indenture Act which may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining pro visions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the law of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of
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<PAGE>
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth in
this Article, or in such other form as shall be established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the regulations
thereunder.] This Note is not a deposit and is not insured by the Federal
Deposit Insurance Corporation, the Bank Insurance Fund, the Savings Association
Insurance Fund or any other governmental agency.
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<PAGE>
AMSOUTH BANCORPORATION
...................................................
No. ......... $ ........
AmSouth Bancorporation, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ..............................................., or
registered assigns, the principal sum of ......................................
Dollars on ........................................................ [if the
Security is to bear interest prior to Maturity, insert -- , and to pay interest
thereon from ............. or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on ............
and ............ in each year, commencing ........., at the rate of ....% per
annum, until the principal hereof is paid or made available for payment [if
applicable, insert -- , provided that any principal and premium, and any such
instalment of interest, which is overdue shall bear interest at the rate of ...%
per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made
available for payment, and such interest shall be payable on demand]. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the ....... or ....... (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ....% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ......% per annum (to the extent that the payment of such interest on
interest shall be legally enforce-
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able), from the date of such demand until the amount so demanded is paid or made
available for payment. Interest on any overdue interest shall be payable on
demand.]]
Payment of the principal of (and premium, if any) and [if applicable, insert
- -- any such] interest on this Security will be made at the office or agency of
the Company maintained for that purpose in ............, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AMSOUTH BANCORPORATION
By...................................................
Attest:
.........................................
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of ............... (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and Bankers Trust Company, as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), and reference is
hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities
and of the
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terms upon which the Securities are, and are to be, authenticated and delivered.
This Security is one of the series designated on the face hereof.
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........... in any year commencing with the year ...... and ending with
the year ...... through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19..], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before ..............., ...%, and if redeemed] during the 12-month period
beginning ............. of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year .... and ending with the year .... through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ............ of the years indicated,
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Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
- ---- ----------------- ----------------------
and thereafter at a Redemption Price equal to .....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest instalments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may not,
prior to ............., redeem any Securities of this series as contemplated by
[if applicable, insert -- Clause (2) of] the preceding paragraph as a part of,
or in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than .....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ............ in each year beginning with the year ....... and
ending with the year ...... of [if applicable, insert -- not less than
$.......... ("mandatory sinking fund") and not more than] $......... aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner set forth in Article Fourteen of the Indenture, the indebtedness
represented by the
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Securities and the payment of principal of (and premium, if any) and interest on
each and all of the Securities are hereby expressly made subordinate and subject
in right of payment to the prior payment in full of all Senior Indebtedness.
[If applicable, insert -- The Indenture contains provisions for defeasance at
any time of [the entire indebtedness of this Security] [or] [certain restrictive
covenants and Events of Default with respect to this Security] [, in each case]
upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of
this Security shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made
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written request to the Trustee to institute proceedings in respect of such Event
of Default as Trustee and offered the Trustee indemnity reasonably satisfactory
to it, and the Trustee shall not have received from the Holders of a majority in
principal amount of Securities of this series at the time Outstanding a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder of
this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $....... and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
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Section 204. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the Securities
evidenced thereby, every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY,
As Trustee
By........................................,
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth, or determined in the
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manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which,
pursuant to Section 303, are deemed never to have been authenticated and
delivered hereunder);
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
the Interest Payment Dates on which any such interest shall be payable and the
Regular Record Date for any such interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other than
by a Board Resolution, the manner in which any election by the Company to
redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which any
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
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(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any premium
or interest on any Securities of the series shall be payable and the manner of
determining the equivalent thereof in the currency of the United States of
America for any purpose, including for purposes of the definition of
"Outstanding" in Section 101;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies or
currency units in which the principal of or any premium or interest on such
Securities as to which such election is made shall be payable, the periods
within which and the terms and conditions upon which such election is to be
made and the amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall be
due and payable upon any Maturity other than the Stated Maturity or which shall
be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in
any such case, the manner in which such amount deemed to be the principal
amount shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303 or
both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in such
case, the respective Depositaries for such Global Securities, the form of any
legend or legends which shall be borne by any such Global Security in addition
to or in lieu of that set forth in Section 204 and any circumstances in
addition to or in lieu of those set forth in Clause (2) of the last paragraph
of Section 305 in which any such Global Security may be exchanged in whole or
in part for Securities registered, and any transfer of such Global Security in
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whole or in part may be registered, in the name or names of Persons other than
the Depositary for such Global Security or a nominee thereof;
(17) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 502;
(18) any addition to or change in the covenants set forth in Article Ten
which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to
a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Fourteen. The Securities shall not be
superior in right of payment to, and shall rank pari passu with, the Existing
Subordinated Indebtedness.
Section 302. Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 301. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant
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Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company, notwith -
standing that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery of such Securities or did not hold such
offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive (and shall receive upon request), and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or pursuant to
Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to
Board Resolution as permitted by Section 301, that such terms have been
established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding paragraph,
if all Securities of a series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the authentication
of each Security of such series if such
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documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the
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"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and of
transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities
of the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange
of Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to
be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
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The provisions of Clauses (1), (2), (3), (4), (5) and (6) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary (i) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the Exchange Act, (B)
there shall have occurred and be continuing an Event of Default with respect to
such Global Security or (C) there shall exist such circumstances, if any, in
addition to or in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
(4) So long as all of the Securities of any series are evidenced by a
Global Security, the Security Registrar and the Trustee shall be entitled to
deal with the Depositary for all purposes of this Indenture with respect to
Securities of such series (including the payment of principal of and interest
on any such Global Security and the giving of instructions hereunder) as the
sole holder of such Global Security.
(5) Whenever a notice or other communication to the Holders is required
under this Indenture, unless and until definitive Securities shall have been
issued to Holders pursuant to Article Three, the Trustee shall give all such
notices and communications specified herein to be given to Holders to the
Depositary and shall have no obligation to the Holders.
(6) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section, Section 304, 306, 906 or 1107 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
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Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
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Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed
in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the bene fit of the Persons entitled to such Defaulted Interest as in
this Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given to each Holder of Securities of such
series in the manner set forth in Section 106, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Per sons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by and
acceptable to the Trustee.
Subject to the foregoing provisions of this Section, each Security delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
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Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and any premium and
(subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer
or exchange or for credit against any sinking fund payment shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of in a customary manner as directed by a Company
Order.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
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(1) either
(A) all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either
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directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and any premium and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
Fourteen or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) the entry by a court having jurisdiction in the premises of (A) a decree
or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property (other than a conservator or other similar official in respect of a
Bank), or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(2) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable Federal or State
law, or the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property (other than a conservator or other similar
official in respect of a Bank), or the making by it of
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an assignment for the benefit of creditors, or the admission by it in writing
of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(3) any other Event of Default provided with respect to Securities of that
series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of that
series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate or rates prescribed therefor in such Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel;
and
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(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security when such
interest becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or premium, if any,
on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Security or Securities and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
"Default", wherever used herein with respect to Securities of any series,
means any one of the following events (whatever the reason for such Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or governmental body);
(A) an Event of Default with respect to any Securities of that series; or
(B) the events referred to in subsections 503(1) through (2) above with
respect to any Securities of that series; or
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(C) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture solely for
the benefit of series of Securities other than that series), and continuance
of such default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount of
the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(D) any other Default provided with respect to Securities of that series.
If a Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed, at the sole expense of
the Company, to protect and enforce its rights and the rights of the Holders of
Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied
in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or any premium or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 607; and
Second: Subject to Article Fourteen, to the payment of the amounts then due
and unpaid for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
rat ably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal and any premium and interest,
respectively.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series shall have made written request to the Trustee to
institute proceedings in respect of such Default in its own name as Trustee
hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of
all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right
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or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Default shall impair any such
right or remedy or constitute a waiver of any such Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512. Control by Holders.
Subject to Article Six hereof, the Holders of a majority in principal amount
of the Outstanding Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which
is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any
Security of such series, or
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(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken, suffered or omitted by
it as Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, including reasonable attorneys' fees,
and may assess costs against any such party litigant, in the manner and to the
extent provided in the Trust Indenture Act. The provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders of an
aggregate more than 10 percent in principal amount of the Securities then
outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Security, on or after the
respective due dates expressed in such Security.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require
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the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reason ably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, and
such default is known to a Responsible Officer of the Trustee, the Trustee shall
give the Holders of Securities of such series notice of such default as and to
the extent provided by the Trust Indenture Act; provided, however, that in the
case of any default of the character specified in Section 503(c) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, a Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or refraining from
acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting to take any action hereunder, the Trustee (unless other evidence be
herein specifically prescribed) may, in the absence of bad faith on its part,
request and rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such counsel (to
be confirmed in writing) or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
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(5) the Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Indenture at the request or direction of any of the
Holders pursuant to this Indenture, unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, and at the Company's sole expense, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys and
the Trustee shall not be responsible for the supervision of, or any misconduct
or negligence on the part of, any agent or attorney appointed with due care by
it hereunder; and
(8) the protections afforded to the Trustee under this Indenture shall also
be afforded to it in its capacity as Registrar and/or Paying Agent, as the case
may be.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (and such indemnification shall extend to the
officers, directors, employees and agents of the Trustee) for, and to hold it
harmless against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder;
(4) that the obligations of the Company under this Section 607 shall
survive the satisfaction and discharge of this Indenture; and
(5) that when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(1) or (2) hereof has occurred, the
expenses and the compensation for the services (including the fees and expenses
of its agents and counsel) are intended to constitute expenses of
administration under any Federal or State bankruptcy law.
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Section 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect
to the Securities of each series, which may be Trustee hereunder for Securities
of one or more other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, and has a combined capital
and surplus of at least $50,000,000 and has its Corporate Trust Office in the
Borough of Manhattan, The City of New York. If any such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company. If the instrument
of acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Trustee may be removed at any time with respect to the Securities of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company.
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If at any time:
(1) the Trustee shall fail to comply with Section 608 after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall fail
to resign after written request therefor by the Company or by any such bona
fide Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or if
a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee
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with respect to the Securities of any series to all Holders of Securities of
such series in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment in
full of all amounts owed to it pursuant to this Indenture, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with
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respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in the first
or second preceding paragraph, as the case may be.
The retiring Trustee shall not be liable for any acts or omissions of any
successor Trustee.
No successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one
or more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue and
upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be
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valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes poses of this Section,
the combined capital and surplus of such Authenticating Agent shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
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If an appointment with respect to one or more series is made pursuant to this
Section, the Securities of such series may have endorsed thereon, in addition to
the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
Bankers Trust Company
As Trustee
By......................................,
As Authenticating Agent
By......................................,
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than May 15 and November 15 in each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities of each series as of the preceding May 1
or November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than 12
months shall be transmitted no later than March 30 in each calendar year,
commencing in 1995.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, and the Company shall not permit any Person to consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust, shall be organized and
validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Default, and no event which,
after notice or lapse of time or both, would become a Default, shall have
happened and be continuing;
(3) the Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such
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conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of
all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(3) to add any additional Defaults or Events of Default; or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of Securities
in bearer form, registrable or not registrable as to principal, and with or
without interest coupons, or to permit or facilitate the issuance of Securities
in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture in
respect of one or more series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any Security of any series
created prior to the execution of such supplemental indenture and entitled to
the benefit of such provision nor (ii) modify the rights of the Holder of any
such Security with respect to such provision or (B) shall become effective only
when there is no such Security Outstanding; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any series as permitted
by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment hereunder by a
successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this Clause (9) shall not
adversely affect the interests of the Holders of Securities of any series in
any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any instalment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the Outstanding Securities
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
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(3) modify any of the provisions of this Section, Section 513 or Section
1008, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent
of the Holder of each Outstanding Security affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant changes
in this Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform
to the requirements of the Trust Indenture Act.
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Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 907. Subordination Unimpaired.
Notwithstanding any provision in this Indenture or otherwise, the rights of
Entitled Persons in respect of Other Financial Obligations under this Indenture
and otherwise in respect of the Securities or any series of the Securities may,
at any time and from time to time, be modified in any respect or eliminated
without the consent of any Entitled Person in respect of Other Financial
Obligations.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay the principal of and any premium and
interest on the Securities of that series in accordance with the terms of the
Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
any series of Securities, it will, on or before each due date of the principal
of or any premium or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such sum to be held as provided by the Trust
Indenture Act, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
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Any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of or any premium or interest
on any Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and the rights (charter and statutory) and franchises of the Company; provided,
however, that the Company shall not be required to preserve any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the
Holders.
Section 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as
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in the judgment of the Company may be necessary so that the business carried on
in connection therewith may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the Company
from discontinuing the operation or maintenance of any of such properties if
such discontinuance is, in the judgment of the Company, desirable in the conduct
of its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before
the same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary, and (2) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company may, with respect to the Securities of any series,
omit in any particular instance to comply with any term, provision or condition
set forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(7)
for the benefit of the Holders of such series or in any of Sections 1005 to
1007, inclusive, if before the time for such compliance the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
term, provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a
Board Resolution or in another manner specified as contemplated by Section 301
for such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least 60 days prior to
the Redemption Date fixed by the Company, notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all
the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method customarily employed by the
Trustee and which may provide for the selection for redemption of a portion of
the principal amount of any Security of such series, provided that the
unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security. If less than all the Securities of such series
and of a specified tenor are to be redeemed (unless such redemption affects only
a single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of
more than a single Security are to be redeemed, the identification (and, in the
case of partial redemption of any such Securities, the principal amounts) of
the particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest on, all the Securities which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the Redemption
Price therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, instalments of interest whose Stated Maturity is on
or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
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ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to any Securities of such series required to be made pursuant to the terms of
such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 45 days prior to each such sinking fund payment date,
the Trustee
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shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations, and the
provisions of Article Fourteen shall cease to be effective, with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the direction and
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, (2) the Company's
obligations with respect to such Securities under Sections 304, 305, 306, 1002
and 1003, (3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any
Securities notwithstanding the prior exercise of its option (if any) to have
Section 1303 applied to such Securities.
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Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company shall be released from its obligations under Sections 1006 through
1007, inclusive, and any covenants provided pursuant to Section 301(18), 901(2)
or 901(7) for the benefit of the Holders of such Securities, and (2) the
occurrence of any event specified in Section 501(3) shall be deemed not to be an
Event of Default, and (3) the occurence of any event specified in Section
503(2)(C) (with respect to any of Sections 1006 through 1007 inclusive, and any
such covenants provided pursuant to Section 301(18), 901(2) and 901(7) shall be
deemed not to be or result in a Default and (4) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such specified
Section or Article Fourteen, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 609 and agrees to comply with the provisions of this
Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefits of the Holders of such Securities, (A) in the case of
Securities denominated in a foreign currency, money in such foreign currency or
Foreign Government Obligations of the foreign government or governments issuing
such foreign currency which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, such foreign currency in
an amount or (B) in the case of Securities denominated in U.S. dollars, U.S.
dollars or U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, U.S.
dollars in an amount, or (C) a combination of money and U.S. Government
Obligations or Foreign Government Obligations (as applicable), in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by
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the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any security
which is (i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United States of America is
pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii),
is not callable or redeemable at the option of the issuer thereof, and (y) any
depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act) as custodian with respect to any U.S. Government Obligation
which is specified in Clause (x) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any U.S. Government Obligation which is so
specified and held, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal or interest
evidenced by such depositary receipt. As used herein, "Foreign Government
Obligation" means any security denominated in a Foreign Currency which is (i) a
direct obligation of a foreign government or governments for the payment of
which the full faith and credit of such foreign government or governments is
pledged or (ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of such foreign government or
governments the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such foreign government, which, in either case (i) or
(ii) is not callable or redeemable at the option of the issuer thereof.
(2) In the event of an election to have Section 1302 apply to any Securities
or any series of Securities, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (A)(x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or (y) since the date of this instrument, there has been a change in
the applicable Federal income tax law, in either case (x) or (y) to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Securities will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such deposit,
Defeasance and discharge were not to occur and (B) if Securities of such series
Securities are then listed on the New York Stock Exchange, to the effect that
the Securities of such series will not be delisted as a result of such
election.
(3) In the event of an election to have Section 1303 apply to any Securities
or any series of Securities, as the case may be, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit and
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Covenant Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and at the
same times as would be the case if such deposit and Covenant Defeasance were
not to occur.
(4) The Company shall have delivered to the Trustee an Officer's Certificate
to the effect that neither such Securities nor any other Securities of the same
series, if then listed on any securities exchange, will be delisted as a result
of such deposit.
(5) No event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to such Securities or any other Securities
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(1) and (2), at any time on
or prior to the 90th day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or instrument
to which the Company is a party or by which it is bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within the meaning
of the Investment Company Act unless such trust shall be registered under such
Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent with
respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money,
U.S. Government Obligations and Foreign Government Obligations (including the
proceeds thereof) deposited with the Trustee or other qualifying trustee (solely
for purposes of this Section and Section 1306, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section 1304
in respect of any Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any such Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Holders of
such Securities, of all sums due and to become due thereon
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in respect ofprincipal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
Money, U.S. Government Obligations and Foreign Government Obligations so held in
trust shall not be subject to the provisions of Article Fourteen.
The Company shall pay and indemnify the Trustee against any tax, fee or other
charge imposed on or assessed against the U.S. Government Obligations or Foreign
Government Obligations deposited pursuant to Section 1304 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations or Foreign Government Obligations held by it as
provided in Section 1304 with respect to any Securities which, in the opinion of
a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance
with this Article with respect to any Securities by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 1302 or 1303 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 1305 with respect to such Securities
in accordance with this Article; provided, however, that if the Company makes
any payment of principal of or any premium or interest on any such Security
following such reinstatement of its obligations, the Company shall be subrogated
to the rights (if any) of the Holders of such Securities to receive such payment
from the money so held in trust.
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ARTICLE FOURTEEN
Subordination of Securities
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Securities and the payment of the principal of (and premium, of any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated to the
payment of the Securities, which may be payable or deliverable in respect of the
Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event.
In the event that, notwithstanding the foregoing provisions of this Section,
the Trustee or the Holder of any Security shall have received any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other indebtedness of the
Company being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to a Responsible Officer of the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered
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forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment which are subordinated in right of
payment to all Senior Indebtedness which may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article. The consolidation of the
Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or transfer
of its properties and assets substantially as an entirety to another Person upon
the terms and conditions set forth in Article Eight shall not be deemed a
dissolution, winding up, liquidation, reorganization, assignment for the benefit
of creditors or marshalling of assets and liabilities of the Company for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Indebtedness shall
be entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Indebtedness or provision shall be made for such
payment in money or money's worth, before the Holders of the Securities are
entitled to receive any payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Company being
subordinated to the payment of the Securities) by the Company on account of the
principal of (or premium, if any) or interest on the Securities or on account of
the purchase or other acquisition of Securities; provided, however, that nothing
in this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Twelve by delivering and crediting pursuant to Section
1202 Securities which have been acquired (upon redemption or otherwise) prior to
such declaration of acceleration.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to a Responsible Officer of the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company.
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The provisions of this Section shall not apply to any payment with respect to
which Section 1402 would be applicable.
Section 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the payment of
principal of (or premium, if any) or interest on any Senior Indebtedness beyond
any applicable grace period with respect thereto, or in the event that any event
of default with respect to any Senior Indebtedness shall have occurred and be
continuing permitting the holders of such Senior Indebtedness (or a trustee on
behalf of the holders thereof) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or (b) in the event any judicial proceeding shall be pending with
respect to any such default in payment or event of default, then no payment
(including any payment which may be payable by reason of the payment of any
other indebtedness of the Company being subordinated to the payment of the
Securities) shall be made by the Company on account of principal of (or premium,
if any) or interest on the Securities or on account of the purchase or other
acquisition of Securities; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article
Twelve by delivering and crediting pursuant to Section 1202 Securities which
have been acquired (upon redemption or otherwise) prior to such default in
payment or event of default.
In the event that, notwithstanding the foregoing, the Company shall make any
payment to the Trustee or the Holder of any Security prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such payment, have been made known to a Responsible Officer of the Trustee or,
as the case may be, such Holder, then and in such event such payment shall be
paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect to
which Section 1402 would be applicable.
Section 1405. Payment Permitted in Certain Situations.
Nothing contained in this Article or elsewhere in this Indenture or in any of
the Securities shall prevent the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 1402 or under the conditions
described in Section 1403 or 1404, from making payments at any time of principal
of (and premium, if any) or interest on the Securities.
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Section 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all Existing Subordinated
Indebtedness and all indebtedness of the Company which by its express terms is
subordinated to indebtedness of the Company to substantially the same extent as
the Securities or the Existing Subordinated Indebtedness are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as among the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness (and, in the case of Section 1415,
Entitled Persons in respect of Other Financial Obligations) on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and other than Entitled
Persons in respect of Other Financial Obligations and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior
Indebtedness and Entitled Persons in respect of Other Financial Obligations, is
intended to rank equally with all other general obligations of the Company), to
pay to the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness and Entitled Persons in respect of Other
Financial Obligations; or (c) prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Indebtedness and under Section 1415 of Entitled Persons in
respect of Other Financial Obligations, to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
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<PAGE>
Section 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness (and Entitled Persons in respect of Other
Financial Obligations) may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Indebtedness
and Entitled Persons, in respect of Other Financial Obligations, do any one or
more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness or Other
Financial Obligations, or otherwise amend or supplement in any manner Senior
Indebtedness or Other Financial Obligations or any instrument evidencing the
same or any agreement under which Senior Indebtedness is or Other Financial
Obligations are outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing Senior Indebtedness or
Other Financial Obligations; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness or Other Financial Obligations; and (iv)
exercise or refrain from exercising any rights against the Company and any other
Person.
Section 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any fact known
to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof from the Company or a holder of Senior Indebtedness or from any
trustee therefor or from any Entitled Persons in respect of Other
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<PAGE>
Financial Obligations; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist.
Subject to the provisions of Section 601, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a trustee therefor) or an Entitled
Person in respect of Other Financial Obligations to establish that such notice
has been given by a holder of Senior Indebtedness (or a trustee therefor) or an
Entitled Person in respect of Other Financial Obligations. In the event that
the Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness or an
Entitled Person in respect of Other Financial Obligations to participate in any
payment or distribution pursuant to this Article, the Trustee may, but shall not
be required to, request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness or other
Financial Obligations held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 1411. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 601, and the Holders
of the Securities shall be entitled to rely upon any order or decree entered by
any court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquida liquidation, reorganization, dissolution, winding up or
similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company and the Entitled Persons in respect of Other Financial Obligations, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness or
Entitled Persons.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness or Entitled Persons in respect of Other Financial
Obligations and shall not be liable to any such holders or creditors if it shall
in good faith pay over or distribute to Holders of Securities or to the Company
or to any other Person cash, property or
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<PAGE>
securities to which any holders of Indebtedness or Entitled Persons in respect
of Other Financial Obligations shall be entitled by virtue of this Article or
otherwise.
Section 1413. Rights of Trustee as Holder of Senior Indebtedness or Entitled
Person; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it and with respect to any Other Financial Obligations owed
to the Trustee as an Entitled Person, to the same extent as any other holder of
Senior Indebtedness or Entitled Person in respect of Other Financial
Obligations, as the case may be, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder or Entitled Person.
Nothing in this Article shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 607.
Section 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; provided, however, that
Section 1413 shall not apply to the Company or any Affiliate of the Company if
it or such Affiliate acts as Paying Agent.
Section 1415. Securities to Rank Pari Passu with Existing Subordinated
Indebtedness.
(a) Subject to the provisions of this Section and to any provisions
established or determined with respect to Securities of any series pursuant to
Section 301, the Securities shall rank pari passu in right of payment with all
other Securities and the Existing Subordinated Indebtedness.
(b) Upon the occurrence of any of the events specified in clauses (a), (b)
and (c) of the first paragraph of Section 1402, the provisions of that Section
and the corresponding provisions of each indenture or other instrument or
document establishing or governing the terms of any Existing Subordinated
Indebtedness shall be given effect on a pro rata basis to determine the amount
of cash, property or securities which may be payable or deliverable as between
the holders of Senior Indebtedness, on the one hand, and the Holders of
Securities and holders of Existing Subordinated Indebtedness, on the other hand.
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<PAGE>
(c) If, after giving effect to the provisions of Section 1402, Section 1406
and the respective corresponding provisions of each indenture or other
instrument or document establishing or governing the terms of any Senior
Indebtedness on such pro rata basis, any amount of cash, property or securities
shall be available for payment or distribution in respect of the Securities
("Excess Proceeds"), and any Entitled Persons in respect of Other Financial
Obligations shall not have received payment in full of all amounts due or to
become due on or in respect of such Other Financial Obligations (and provision
shall not have been made for such payment in money or money's worth), then such
Excess Proceeds shall first be applied (ratably with any amount of cash,
property or securities available for payment or distribution in respect of any
other indebtedness of the Company that by its express terms provides for the
payment over of amounts corresponding to Excess Proceeds to Entitled Persons in
respect of Other Financial Obligations) to pay or provide for the payment of the
Other Financial Obligations remaining unpaid, to the extent necessary to pay all
Other Financial Obligations in full, after giving effect to any concurrent
payment or distribution to or for Entitled Persons in respect of Other Financial
Obligations. Any Excess Proceeds remaining after the payment (or provision for
payment) in full of all Other Financial Obligations shall be available for
payment or distribution in respect of the Securities.
(d) In the event that, notwithstanding the foregoing provisions of subsection
(c) of this Section, after the occurrence of any of the events specified in
clauses (a), (b) and (c) of the first paragraph of Section 1402, the Trustee or
Holder of any Security shall have received any payment or distribution of assets
of the Company of any kind or character, whether in cash, property or
securities, before Senior Indebtedness and all Other Financial Obligations are
paid in full or payment thereof duly provided for, and if such fact shall, at or
prior to the time of such payment or distribution, have been made known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event, subject to any obligation that the Trustee or such Holder may
have pursuant to Section 1402, such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for payment in accordance with subsection
(c).
(e) Subject to the payment in full of all Other Financial Obligations, the
Holders of the Securities shall be subrogated (equally and ratably with the
holders of all indebtedness of the Company that by its express terms provides
for the payment over of amounts corresponding to Excess Proceeds to Entitled
Persons in respect of Other Financial Obligations and is entitled to like rights
of subrogation) to the extent of the payments or distributions made to Entitled
Persons in respect of Other Financial Obligations pursuant to subsection (c) or
(d) of this Section to the rights of the Entitled Persons in respect of Other
Financial Obligations to receive payments and distributions of cash, property
and securities applicable to the Other Financial Obligations until the principal
of (and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to Entitled
Persons in respect of Other Financial Obligations of any cash, property or
securities to which Holders of the Securities or the
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<PAGE>
Trustee would be entitled except for the provisions of this Section, and no
payments over pursuant to the provisions of this Section to Entitled Persons in
respect of Other Financial Obligations by Holders of Securities or the Trustee,
shall, as among the Company, its creditors other than Entitled Persons in
respect of Other Financial Obligations and the Holders of Securities be deemed
to be a payment or distribution by the Company to or on account of the Other
Financial Obligations.
(f) The provisions of subsections (c), (d) and (e) of this Section are and
are intended solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the Entitled Persons in respect
of Other Financial Obligations, on the other hand, after giving effect to the
rights of the holders of Senior Indebtedness, as provided in this Article.
Nothing contained in subsections (c), (d) and (e) of this Section is intended to
or shall affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than Entitled Persons in respect
of Other Financial Obligations.
This instrument may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
In Witness Whereof, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
[SEAL] AMSOUTH BANCORPORATION
By /s/ M. List Underwood, Jr.
----------------------------------------
Name: M. List Underwood, Jr.
Title: Executive Vice President &
Chief Financial Officer
Attest:
/s/ Carl L. Gorday
- -------------------
Assistant Secretary
BANKERS TRUST COMPANY,
as Trustee
By /s/ Susan Johnson
----------------------------------------
Susan Johnson
Assistant Vice President
Attest:
/s/ Wanda Carnacko
- -------------------
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<PAGE>
State of Alabama )
) ss.:
County of Jefferson )
On the 23rd day of May, 1994, before me personally came M. List Underwood,
Jr., to me known, who, being by me duly sworn, did depose and say that he is
Executive Vice President and Chief Financial Officer of AmSouth Bancorporation,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
/s/ Michele H. Bridges
-------------------------------------
My Commission Expires August 4, 1997
State of New York )
) ss.:
County of New York )
On the 25th day of May, 1994, before me personally came Susan Johnson, to me
known, who, being by me duly sworn, did depose and say that she is Assistant
Vice President of Bankers Trust Company, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ Margaret Bereza
---------------------------------------
Margaret Bereza
Notary Public, State of New York
No. 31-5023900
Qualified in New York County
Commission Expires 8/22/96
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<PAGE>
EXHIBIT 4(l)
================================================================================
AMSOUTH BANCORPORATION
TO
BANKERS TRUST COMPANY, TRUSTEE
--------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of _________ __, 19
--------------------------------------------
Supplemental to Indenture,
dated as of May 25, 1994
--------------------------------------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of _________ __, 19__, between
AMSOUTH BANCORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), and BANKERS TRUST COMPANY, a banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture,
dated as of May 25, 1994 (the "Indenture"), pursuant to which the Company has
issued certain Securities that remain outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this First Supplemental Indenture to amend and supplement the Indenture
in certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this First Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of
this First Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
Article I
AMENDMENTS
SECTION 1.1. Amendments to Section 101 of Indenture.
(a) The definition of "Existing Subordinated Indebtedness" in Section
101 of the Indenture is hereby amended and restated as follows:
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<PAGE>
"Existing Subordinated Indebtedness" means, unless otherwise
determined with respect to any Series of Securities pursuant to Section
301, the Company's 9 3/8% Subordinated Capital Notes due 1999, the
Company's 7 3/4% Subordinated Notes due 2004 and the Company's 6.75%
Subordinated Debentures due 2025.
(b) The definition of "Senior Indebtedness" in Section 101 of the
Indenture is hereby amended and restated as follows:
"Senior Indebtedness" means, unless otherwise determined with
respect to any series of Securities pursuant to Section 301, the
principal of (and premium, if any) and interest on (a) all indebtedness
of the Company (including indebtedness of others guaranteed by the
Company), whether outstanding on the date of this Indenture or
thereafter created, incurred or assumed, which is (i) for money
borrowed or (ii) evidenced by a note or similar instrument given in
connection with the acquisition of any businesses, properties or assets
of any kind, and (b) any amendments, renewals, extensions or
modifications of any such indebtedness, unless in any case in the
instrument creating or evidencing any such indebtedness or pursuant to
which the same is outstanding it is provided that such indebtedness is
not superior in right of payment to the Securities or is to rank pari
passu with or subordinate to the Securities, provided that Senior
Indebtedness shall not include any obligations on account of Existing
Subordinated Indebtedness.
SECTION 1.2. Amendment to Section 203 of Indenture. The first paragraph
of Section 203 of the Indenture is hereby amended and restated as follows:
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of
............... (herein called the "Indenture", which term shall have
the meaning assigned to it in such instrument), between the Company and
Bankers Trust Company, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), and reference
is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Company, the Trustee, the holders of Senior Indebtedness, Entitled
Persons in respect of Other Financial Obligations and the Holders of
the Securities and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [if applicable, insert -- , limited in
aggregate principal amount to $...........].
SECTION 1.3. Amendment to Section 301 of Indenture. The final paragraph
of Section 301 of the Indenture is hereby amended by inserting the words "and
subject to the
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<PAGE>
rights of Entitled Persons in respect of Other Financial Obligations"
immediately following the words "Senior Indebtedness" therein.
SECTION 1.4. Amendment to Section 602 of Indenture. Section 602 of the
Indenture is hereby amended by deleting the words "Section 503(c)" immediately
following the words "in the case of any default of the character specified in"
therein and inserting in their place the words "Clause (C) of the definition of
"Default" set forth in Section 503".
SECTION 1.5. Amendment to Section 901 of Indenture. Paragraph (3) of
Section 901 of the Indenture is hereby amended by inserting the words "for the
benefit of the Holders of all or any series of Securities (and if such
additional Defaults or Events of Default are to be for the benefit of less than
all series of Securities, stating that such additional Defaults or Events of
Default are expressly being included solely for the benefit of such series)"
following the words "Events of Default" therein.
SECTION 1.6. Amendment to Section 1008 of Indenture. Section 1008 of
the Indenture is hereby amended by deleting the words "or in any of Sections
1005 to 1007, inclusive," therein.
SECTION 1.7. Amendment to Section 1303 of Indenture. Section 1303 of
the Indenture is hereby amended and restated as follows:
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as
the case may be, (1) the Company shall be released from its obligations
under Sections 1006 through 1007, inclusive, and any covenants provided
pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the
Holders of such Securities, (2) the occurrence of any event specified
in Section 501(3) shall be deemed not to be or result in an Event of
Default, and (3) the occurrence of any event specified in Clause (C) of
the definition of "Default" set forth in Section 503 (with respect to
any of Sections 1006 through 1008, inclusive, and any such covenants
provided pursuant to Section 301(18), 901(2) or 901(7)) shall be deemed
not to be or result in a Default and (4) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the
extent so specified, in the case of Clause (C) of the definition of
"Default" set forth in Section 503) or Article Fourteen, whether
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<PAGE>
directly or indirectly by reason of any reference elsewhere herein to
any such Section or Article or by reason of any reference in any such
Section or Article to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall
be unaffected thereby.
SECTION 1.8. Amendments to Section 1304 of Indenture. Section 1304 of
the Indenture is hereby amended by (x) renumbering the existing paragraph (9) of
such Section as paragraph (10) and (y) inserting a new paragraph (9) immediately
following paragraph (8) thereof as follows:
(9) At the time of such deposit, (A) no default in the payment
of any principal of or premium or interest on any Senior Indebtedness
shall have occurred and be continuing, (B) no event of default with
respect to any Senior Debt shall have resulted in such Senior
Indebtedness becoming, and continuing to be, due and payable prior to
the date on which it would otherwise have become due and payable
(unless payment of such Senior Indebtedness has been made or duly
provided for), and (C) no other event of default with respect to any
Senior Indebtedness shall have occurred and be continuing permitting
(after notice or lapse of time or both) the holders of such Senior
Indebtedness (or a trustee on behalf of such holders) to declare such
Senior Indebtedness due and payable prior to the date on which it would
otherwise have become due and payable.
SECTION 1.9. Amendment to Section 1403 of Indenture. The first
paragraph of Section 1403 of the Indenture is hereby amended by inserting the
words "of such Series" following the word "Securities" in the proviso at the end
of such paragraph.
SECTION 1.10. Amendments to Section 1415 of Indenture.
(a) Paragraph (a) of Section 1415 of the Indenture is hereby amended
and restated as follows:
(a) Subject to the provisions of this Section and to any
provisions established or determined with respect to Securities of any
series pursuant to Section 301, the Securities shall rank pari passu in
right of payment with each other and with the Existing Subordinated
Indebtedness.
(b) Paragraph (d) of Section 1415 of the Indenture is hereby amended by
deleting the words "Senior Indebtedness and" therein.
-4-
<PAGE>
Article II
MISCELLANEOUS
-------------
SECTION 2.1. Defined Terms. For all purposes of this First Supplemental
Indenture, except as otherwise stated herein, capitalized terms used but not
defined in this First Supplemental Indenture shall have the respective meanings
assigned to them in the Indenture.
SECTION 2.2. Trustee's Rights, Duties and Immunities. All of the
provisions of the Indenture with respect to the rights, duties and immunities of
the Trustee shall be applicable in respect hereof as fully and with like effect
as if set forth herein in full.
SECTION 2.3. Application of Amendments. All amendments to the Indenture
made hereby shall have effect only with respect to the Securities of any series
created on or after the date hereof, and not with respect to the Securities of
any series created prior to the date hereof.
SECTION 2.4. Recitals. The recitals contained herein shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this First Supplemental Indenture.
SECTION 2.5. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.6. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all of which together shall constitute but one and
the same instrument.
SECTION 2.7. Ratification and Confirmation. As amended and modified by
this First Supplemental Indenture, the Indenture is in all respects ratified and
confirmed and the Indenture and this First Supplemental Indenture shall be read,
taken and construed as one and the same instrument.
-5-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
AMSOUTH BANCORPORATION
By:
------------------------------
Name:
Title:
ATTEST:
BANKERS TRUST COMPANY, as Trustee
By:
------------------------------
Name:
Title:
ATTEST:
-6-
<PAGE>
STATE OF ALABAMA )
COUNTY OF BIRMINGHAM ) ss.:
)
On the ____ day of _________, 19__, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that
s/he is ___________ of AmSouth Bancorporation, one of the corporations described
in and which executed the foregoing instrument; that s/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that s/he signed her/his name thereto by like authority.
[Notarial Seal]
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ____ day of __________, 19__, before me personally came
___________ to me known, who, being by me duly sworn, did depose and say that
s/he is __________ of Bankers Trust Company, one of the corporations described
in and which executed the foregoing instrument; that s/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that s/he signed her/his name thereto by like authority.
[Notarial Seal]
-7-
<PAGE>
EXHIBIT 4(N)
================================================================================
[DEBT] [PREFERRED STOCK] [COMMON STOCK] WARRANT AGREEMENT
dated as of ________ __, ____
between
AMSOUTH BANCORPORATION
and
[NAME OF WARRANT AGENT], as Warrant Agent
___________________________
[Debt] [Preferred Stock] [Common Stock] Warrants
Expiring ________ __, ____
================================================================================
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES............................................................................................. 1
RECITALS............................................................................................ 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
-----------------------------------------
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
-------------------------------------------------
SECTION 1.01. Issuance of Warrants................................................................. 2
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates................................. 2
SECTION 1.03. Exchange and Transfer of Warrant Certificates........................................ 3
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates............................ 4
SECTION 1.05. Cancellation of Warrant Certificates................................................. 5
SECTION 1.06. Treatment of Holders of Warrant Certificates......................................... 5
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
-------------------------------------------------
SECTION 2.01. Exercise Price....................................................................... 5
SECTION 2.02. Duration of Warrants................................................................. 5
SECTION 2.03. Exercise of Warrants................................................................. 6
SECTION 2.03. Adjustment Under Certain Circumstances............................................... 7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
-------------------------------------
HOLDERS OF WARRANTS
-------------------
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by Warrants
or Warrant Certificates........................................................................ 8
SECTION 3.02. Holder of Warrant May Enforce Rights................................................. 8
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
ARTICLE IV
CONCERNING THE WARRANT AGENT
----------------------------
<S> <C>
SECTION 4.01. Warrant Agent....................................................................... 8
SECTION 4.02. Limitations on Warrant Agent's Obligations.......................................... 8
SECTION 4.03. Compliance With Applicable Laws..................................................... 10
SECTION 4.04. Resignation and Appointment of Successor............................................ 10
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.01. Amendments.......................................................................... 12
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance................................. 12
SECTION 5.03. Notices and Demands to the Company and Warrant Agent................................ 13
SECTION 5.04. Addresses........................................................................... 13
SECTION 5.05. APPLICABLE LAW...................................................................... 13
SECTION 5.06. Delivery of Prospectus.............................................................. 14
SECTION 5.07. Obtaining of Governmental Approvals................................................. 14
SECTION 5.08. Payment of Taxes.................................................................... 14
SECTION 5.09. Benefits of Warrant Agreement....................................................... 14
SECTION 5.10. Headings............................................................................ 14
SECTION 5.11. Severability........................................................................ 14
SECTION 5.12. Counterparts........................................................................ 14
SECTION 5.13. Definitions......................................................................... 15
SECTION 5.14. Inspection of Agreement............................................................. 15
</TABLE>
EXHIBITS
--------
EXHIBIT A Form of Warrant Certificate
-ii-
<PAGE>
FORM OF [DEBT] [PREFERRED STOCK]
[COMMON STOCK] WARRANT AGREEMENT
[DEBT] [PREFERRED STOCK] [COMMON STOCK] WARRANT AGREEMENT, dated as of
________ __, ____ (as modified, amended or supplemented, this "Agreement"),
between AMSOUTH BANCORPORATION, a Delaware corporation (the "Company") and [NAME
OF WARRANT AGENT], a _________________, as Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
- - - - - - - - - -
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
---------------------------------------------------------------------
Purchase Debt Securities - WHEREAS, the Company has entered into an Indenture,
- ------------------------
dated as of ________ __, ____ (the "Senior Indenture"), between the Company and
[name of trustee], a ____________________, as trustee, providing for the
issuance from time to time of its unsecured senior debentures, notes or other
evidences of indebtedness, and an Indenture, dated as of _________ __, ____ (the
"Subordinated Indenture", and together with the Senior Indenture, the
"Indentures"), between the Company and [name of trustee], a ___________, as
trustee (together with the trustee under the Senior Indenture, the "Trustees"),
providing for the issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness (together with the
securities issuable under the Senior Indenture, the "Debt Securities"), to be
issued in one or more series as provided in each Indenture; and]
[If offer consists of Securities with Warrants - WHEREAS, the Company
---------------------------------------------
proposes to sell [title of Securities being Offered] (the "Offered Securities")
together with warrants (each, a "Warrant") representing the right to purchase
[title of Securities purchasable upon exercise of Warrants] (the "Warrant
Securities"), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
[If offer consists of Warrants alone - WHEREAS, the Company proposes
-----------------------------------
to sell warrant certificates evidencing one or more warrants (each, a "Warrant")
representing the right to purchase [title of Securities purchasable upon
exercise of Warrants] (the "Warrant Securities"), such warrant certificates and
other warrant certificates issued pursuant to this Agreement being herein called
the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing to so act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
-1-
<PAGE>
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
-----------------------------------------
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
-------------------------------------------------
SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the
right, subject to the provisions contained herein and therein, to purchase
[________] Warrant Securities [in the aggregate principal amount of $_____] at
the Exercise Price set forth in Section 2.01. [If Securities and Warrants are
------------------------------
to be offered together - Warrants shall be issued in units with the Offered
- ----------------------
Securities [and shall not be separately transferable [before ________ __, ____
(the "Detachment Date")]]. [Warrants shall be issued as a separate security and
shall be transferable from and after the date of issuance.] [Each Warrant
Certificate included in such a unit shall evidence [_______] Warrants for each
[$_____ principal amount of] [_______] Offered Securities included in such
unit.]
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) Warrant Certificates evidencing Warrants to purchase not more
than [$_______ in aggregate principal amount] [____] of Warrant Securities
(except as provided in Sections 1.03, 1.04 and 2.03(e)) may be executed by the
Company and delivered to the Warrant Agent upon the execution of this Warrant
Agreement or from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered
form substantially in the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Agreement. Each Warrant Certificate shall be
printed, lithographed, typewritten, mimeographed or engraved on steel engraved
borders or otherwise reproduced in any other manner as may be approved by the
officers executing the same (such execution to be conclusive evidence of such
approval) and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements printed, lithographed or engraved
thereon as the officers of the Company executing the same may approve (such
execution to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto, or
with any regulation of any stock exchange on which the Warrants [, the Offered
Securities] or the Warrant Securities may be listed, or to conform to usage.
Each Warrant Certificate shall be signed on behalf of the Company by its
Chairman of the Board, Vice Chairman of the Board, President or any Vice
President, and by its Secretary or any of its Assistant Secretaries, under its
corporate seal. The signature of any such officer on any Warrant Certificate
may be manual or facsimile. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates. Each
-2-
<PAGE>
Warrant Certificate, when so signed on behalf of the Company, shall be delivered
to the Warrant Agent together with an order for the countersignature and
delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate
duly executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated as of the date of its countersignature.
Subsequent to the original issuance of the Warrant Certificates, the Warrant
Agent shall countersign a Warrant Certificate only if the Warrant Certificate is
issued in exchange or substitution for one or more previously countersigned
Warrant Certificates, or upon the partial exercise of Warrants evidenced by a
Warrant Certificate, as hereinafter provided.
(d) No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby may be exercised, unless such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that such Warrant Certificate has been duly issued under the
terms of this Agreement.
(e) If any officer of the Company who has signed any Warrant
Certificate either manually or by facsimile signature shall cease to be such
officer before such Warrant Certificate shall have been countersigned and
delivered by the Warrant Agent, such Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Warrant
Certificate had not ceased to be such officer of the Company; and any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company as specified in this Section 1.02, regardless of whether
at the date of the execution of this Agreement any such person was such officer.
(f) The terms "holder", "holder of Warrants" and "holder of Warrant
Certificates" as used herein shall mean any person in whose name any Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose [If Securities and Warrants that are not immediately
---------------------------------------------------
detachable are offered or, prior to the Detachment Date, the person in whose
- ----------------------
name the Offered Security to which such Warrant Certificate was initially
attached is registered upon the register relating to such Offered Securities. At
all times prior to the Detachment Date, the Company will, or will cause the
registrar of the Offered Securities to, make available to the Warrant Agent such
information as to holders of the Offered Securities as may be necessary to keep
the Warrant Agent's records current].
SECTION 1.03. Exchange and Transfer of Warrant Certificates.
(a) [[If Securities and Warrants that are not immediately detachable
--------------------------------------------------------------
are offered - Prior to the Detachment Date, a] [A] Warrant Certificate may be
- -----------
exchanged or transferred only together with the Offered Security to which such
Warrant Certificate is attached, and only
-3-
<PAGE>
for the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. Furthermore, [on or prior to the Detachment Date,] each
transfer of an Offered Security on the register relating to such Offered
Securities shall operate also to transfer the Warrants to which such Offered
Security was initially attached. [From and after the Detachment Date, the above
provisions shall be of no further force and effect and a]] [If Securities and
-----------------
Warrants that are immediately detachable are offered - A] Warrant Certificate
- ----------------------------------------------------
may be transferred at the option of the holder thereof upon surrender of such
Warrant Certificate at the corporate trust office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent. Upon any such registration of transfer, the Company shall
execute, and the Warrant Agent shall countersign and deliver, as provided in
Section 1.02, in the name of the designated transferee a new Warrant Certificate
or Warrant Certificates of any authorized denomination evidencing in the
aggregate a like number of unexercised Warrants.
(b) [If Securities and Warrants that are not immediately detachable
--------------------------------------------------------------
are offered - After the Detachment Date, upon] [Upon] surrender at the corporate
- -----------
trust office of the Warrant Agent, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for such exchange,
all in form satisfactory to the Company and the Warrant Agent, a Warrant
Certificate of one denomination may be exchanged for Warrant Certificates in any
other authorized denominations; provided, however, that such Warrant
Certificates evidence the same aggregate number of Warrants as the Warrant
Certificates so surrendered.
(c) The Warrant Agent shall keep, at its corporate trust office,
books in which, subject to such reasonable regulations as it may prescribe, it
shall register Warrant Certificates in accordance with Section 1.02 and
transfers, exchanges, exercises and cancellations of outstanding Warrant
Certificates. Whenever any Warrant Certificates are surrendered for transfer or
exchange in accordance with this Section 1.03, an authorized officer of the
Warrant Agent shall manually countersign and deliver the Warrant Certificates
which the holder making the transfer or exchange is entitled to receive.
(d) No service charge shall be made for any transfer or exchange of
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
satisfactory to them of the ownership of and the loss, theft, destruction or
mutilation of any Warrant Certificate and of indemnity satisfactory to them and,
in the case of mutilation, upon surrender of such Warrant Certificate to the
Warrant Agent for cancellation, then, in the absence of notice to the Company or
the Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for the mutilated
Warrant Certificate, or in lieu of the lost, stolen or destroyed Warrant
Certificate, a new Warrant Certificate of the same tenor and
-4-
<PAGE>
for a like number of Warrants. No service charge shall be made for any
replacement of Warrant Certificates, but the Company may require the payment of
a sum sufficient to cover any stamp or other tax or other governmental charge
that may be imposed in connection with any such exchange. Every substitute
Warrant Certificate executed and delivered pursuant to this Section 1.04 in lieu
of any lost, stolen or destroyed Warrant Certificate shall constitute an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. To the extent permitted under applicable law, the
provisions of this Section 1.04 are exclusive with respect to the replacement of
mutilated, lost, stolen or destroyed Warrant Certificates and shall preclude any
and all other rights or remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered to the Warrant Agent for transfer, exchange or exercise
of the Warrants evidenced thereby shall be promptly canceled by the Warrant
Agent and shall not be reissued and, except as expressly permitted by this
Agreement, no Warrant Certificate shall be issued hereunder in lieu thereof.
The Warrant Agent shall deliver to the Company from time to time or otherwise
dispose of canceled Warrant Certificates in a manner satisfactory to the
Company. Any Warrant Certificate surrendered to the Company for transfer,
exchange or exercise of the Warrants evidenced thereby shall be promptly
delivered to the Warrant Agent and such transfer, exchange or exercise shall not
be effective until such Warrant Certificate has been received by the Warrant
Agent.
SECTION 1.06. Treatment of Holders of Warrant Certificates. Every
holder of Warrants, by accepting a Warrant Certificate evidencing such Warrants,
consents and agrees with the Company, the Warrant Agent and with every
subsequent holder of such Warrants that until the Warrant Certificate is
transferred on the books of the Warrant Agent, the Company and the Warrant Agent
may treat the registered holder of such Warrant Certificate as the absolute
owner of the Warrants evidenced thereby for any purpose and as the person
entitled to exercise the rights attaching to the Warrants evidenced thereby, any
notice to the contrary notwithstanding.
ARTICLE II
EXERCISE PRICE, DURATION AND EXERCISE OF WARRANTS
-------------------------------------------------
SECTION 2.01. Exercise Price. The exercise price of each Warrant
shall be $________ (the "Exercise Price") [modify as appropriate to reflect
terms of offered warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set
forth in Section 2.03, each Warrant may be exercised in whole but not in part on
any Business Day (as defined in Section 2.03) occurring during the period (the
"Exercise Period") commencing on [its date of issuance] [_________ __, ____] and
ending at 5:00 P.M., New York time, on __________ __, ____ (the "Expiration
Date"). Each Warrant remaining unexercised after
-5-
<PAGE>
5:00 P.M., New York time, on the Expiration Date shall become void, and all
rights of the holder of such Warrant under this Agreement shall cease.
SECTION 2.03. Exercise of Warrants.
(a) A holder may exercise a Warrant by delivering, not later than
5:00 P.M., New York time, on any Business Day (the "Exercise Date") to the
Warrant Agent at its corporate trust department (i) the Warrant Certificate
evidencing the Warrants to be exercised, properly completed (including the
information specified on the reverse thereof) and duly executed by the holder
thereof and (ii) the Exercise Price for each Warrant to be exercised in lawful
money of the United States of America by certified or official bank check or by
bank wire transfer in immediately available funds. If either the Warrant
Certificate evidencing the Warrants to be exercised, properly completed and duly
executed as aforesaid, or the Exercise Price therefor, in the proper amount and
in the specified funds, is received by the Warrant Agent after 5:00 P.M., New
York time, on the specified Exercise Date, the Warrants will be deemed to be
received and exercised on the Business Day next succeeding the Exercise Date. If
the date specified as the Exercise Date is not a Business Day, the Warrants will
be deemed to be received and exercised on the next succeeding day which is a
Business Day. If the Warrants are received or deemed to be received after the
Expiration Date, the exercise thereof will be null and void and any funds
delivered to the Warrant Agent will be returned to the holder as soon as
practicable. In no event will interest accrue on funds deposited with the
Warrant Agent in respect of an exercise or attempted exercise of Warrants. The
validity of any exercise of Warrants will be determined by the Warrant Agent in
its sole discretion and such determination will be final and binding upon the
holder of Warrants and the Company. Neither the Company nor the Warrant Agent
shall have any obligation to inform a holder of Warrants of the invalidity of
any exercise of Warrants. The Warrant Agent shall deposit all funds received by
it in payment of the Exercise Price in the account of the Company maintained
with the Warrant Agent for such purpose and shall advise the Company by
telephone at the end of each day on which funds for the exercise of the Warrants
are received of the amount so deposited to its account. The Warrant Agent shall
promptly confirm such telephonic advice to the Company in writing. As used
herein, the term "Business Day" means any day which is not a Saturday or Sunday
and is not a legal holiday or a day on which banking institutions generally are
authorized or obligated by law or regulation to close in the principal place of
business of the Warrant Agent.
(b) The Warrant Agent shall, by 11:00 A.M., New York time, on the
Business Day following the Exercise Date of any Warrant, advise the Company and
the [Trustee under the Indenture applicable to] [the transfer agent and
registrar in respect of] the Warrant Securities issuable upon such exercise as
to the number of Warrants exercised in accordance with the terms and conditions
of this Agreement, the instructions of each holder of such Warrants with respect
to delivery of the Warrant Securities issuable upon such exercise, and the
delivery of Warrant Certificates evidencing the balance, if any, of the Warrants
remaining after such exercise, and such other information as the Company or such
[Trustee] [,] [transfer agent and registrar] shall reasonably require.
-6-
<PAGE>
(c) The Company shall, by 5:00 P.M., New York time, on the third
Business Day next succeeding the Exercise Date of any Warrant, execute, issue
and deliver to the Warrant Agent, [pursuant to the Indenture applicable to the
Warrant Securities, the Warrant Securities, duly authenticated by the Trustee of
such Indenture and in authorized denominations] [the Warrant Securities] to
which such holder is entitled, in fully registered form, registered in such name
or names as may be directed by such holder. Upon receipt of such Warrant
Securities, the Warrant Agent shall, by 5:00 P.M., New York time, on the fifth
Business Day next succeeding such Exercise Date, transmit such Warrant
Securities, to or upon the order of the holder of the Warrant, together with, or
preceded by the prospectus referred to in Section 5.06 hereof. The Company
agrees that it will provide such information and documents to the Warrant Agent
as may be necessary for the Warrant Agent to fulfill its obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [certificate of designations] and such
Warrant Securities. From and after the issuance of such Warrant Securities, the
former holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [certificate of designations] under which such Warrant Securities
are issued and such former holder's right to receive payments of [principal of
(and premium, if any) and interest, if any, on] [dividends and any other amounts
payable in respect of] the Warrant Securities shall be governed by, and shall be
subject to, the terms and provisions of such [Indenture] [certificate of
designations] and the Warrant Securities.
(e) If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, a new Warrant Certificate for the number of Warrants
remaining unexercised shall be executed by the Company and countersigned by the
Warrant Agent as provided in Section 1.02 hereof, and delivered to the holder of
such Warrants at the address specified on the books of the Warrant Agent or as
otherwise specified by such holder.
(f) The Company shall not be required to pay any stamp or other tax
or other governmental charge required to be paid in connection with any transfer
involved in the issuance of the Warrant Securities. If any such transfer is
involved, the Company shall not be required to issue or deliver any Warrant
Securities until such tax or other charge shall have been paid or it has been
established to the Company's satisfaction that no such tax or other charge is
due.
[If Warrants for Common Stock are offered - SECTION 2.03. Adjustment
----------------------------------------
Under Certain Circumstances. The Exercise Price and the number of Warrant
Securities purchasable upon the exercise of each Warrant shall be subject to
adjustment upon (i) the issuance of a stock dividend to the holders of the
outstanding shares of Warrant Securities or a combination, subdivision or
reclassification of the Warrant Securities; (ii) the issuance of rights,
warrants or options to all holders of the Warrant Securities entitling the
holders thereof to purchase Warrant Securities for an aggregate consideration
per share less than the current market price per share of the Warrant
Securities; or (iii) any distribution by the Company to the holders of the
Warrant Securities of evidences of indebtedness of the Company or of assets
-7-
<PAGE>
(excluding cash dividends or distributions payable out of consolidated earnings
and earned surplus and dividends or distributions referred to in (i) above);
provided that no such adjustment in the number of Warrant Securities purchasable
upon exercise of the Warrants will be required until cumulative adjustments
require an adjustment of at least 1% of such number. All such adjustments will
be made at the discretion and on the order of the Company. No fractional shares
will be issued upon exercise of Warrants, but the Company will pay the cash
value of any fractional shares otherwise issuable.]
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF
--------------------------------------
HOLDERS OF WARRANTS
-------------------
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the holder thereof to any of the rights of a holder of any
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any) and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the Indenture] [the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of the Company or to exercise voting
rights, if any].
SECTION 3.02. Holder of Warrant May Enforce Rights. Notwithstanding
any of the provisions of this Agreement, any holder of any Warrant, without the
consent of the Warrant Agent or the holder of any other Warrant, may, on such
holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise in respect of, such holder's right to exercise the
Warrants held by such holder in the manner provided in this Agreement.
ARTICLE IV
CONCERNING THE WARRANT AGENT
----------------------------
SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of
Warrant Agent] as Warrant Agent of the Company in respect of the Warrants upon
the terms and subject to the conditions herein set forth, and [Name of Warrant
Agent] hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it hereby and such further powers
and authority to act on behalf of the Company as the Company may hereafter grant
to or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the holders from time to time of the
Warrant Certificates shall be subject:
-8-
<PAGE>
(a) Compensation and Indemnification. The Company agrees to pay the
Warrant Agent compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent
for all reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant
Agent under this Agreement, the Warrant Agent is acting solely as agent of
the Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants except as expressly
set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it (which may be counsel to the Company), and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it
in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrant, with the same rights that it or they would have were it
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as a depositary, trustee or
agent for, any committee or body of holders of Warrants, Warrant Securities
or Offered Securities, or other securities or obligations of the Company as
freely as if it were not the Warrant Agent hereunder. Nothing in this
Agreement shall be deemed to prevent the Warrant Agent from acting as
trustee under either Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement.
(g) No Liability for Invalidity. The Warrant Agent shall not be
under any responsibility with respect to the validity or sufficiency of
this Agreement or the execution and delivery hereof (except the due
execution and delivery hereof by the
-9-
<PAGE>
Warrant Agent) or with respect to the validity or execution of the Warrant
Certificates (except its countersignature thereon).
(h) No Responsibility for Recitals. The recitals contained herein
and in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon) shall be taken as the statements of the Company,
and the Warrant Agent assumes no responsibility hereby for the correctness
of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform only such duties as are specifically set forth herein and no
implied duties or obligations shall be read into this Agreement against the
Warrant Agent. The Warrant Agent shall not be under any obligation to take
any action hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is not, in its
reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of any of the Warrant Certificates authenticated by the Warrant Agent and
delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the issue and sale, or
exercise, of the Warrants. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the performance of
its covenants or agreements contained herein or in the Warrant Certificates
or in the case of the receipt of any written demand from a holder of a
Warrant with respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or, except as
provided in Section 5.03 hereof, to make any demand upon the Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant Agent
agrees to comply with all applicable federal and state laws imposing obligations
on it in respect of the services rendered by it under this Agreement and in
connection with the Warrants, including (but not limited to) the provisions of
United States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrants, that there shall at all times be a Warrant Agent hereunder
until all the Warrants issued hereunder have been exercised or have expired in
accordance with their terms, which Warrant Agent shall be a bank or trust
company organized under the laws of the United States of America or one of the
states thereof, which is authorized under the laws of the jurisdiction of its
organization to exercise corporate trust powers, has a combined capital and
surplus of at least $50,000,000 and has an office or an agent's office in the
United States of America.
-10-
<PAGE>
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires such resignation to become effective; provided that such
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent
at any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to
be qualified as set forth in Section 4.04(a), or shall be removed, or shall
become incapable of acting, or shall be adjudged a bankrupt or insolvent, or
shall file a petition seeking relief under any applicable Federal or State
bankruptcy or insolvency law or similar law, or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver,
conservator or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or to meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered for
relief against it under the provisions of any applicable Federal or State
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, for the purpose of
rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified as set forth in Section 4.04(a), shall be appointed by the Company by
an instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as herein provided of a successor Warrant Agent and acceptance by
the latter of such appointment, the Warrant Agent so superseded shall cease to
be Warrant Agent under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent under
this Agreement, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Warrant Agent shall be entitled to receive, all
monies, securities and other property on deposit with or held by such
predecessor, as Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent shall be the
-11-
<PAGE>
successor Warrant Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties to this
Agreement, including, without limitation, any successor to the Warrant Agent
first named above, provided in each case, that any such resulting Warrant Agent
shall be qualified as set forth in Section 4.04(a).
ARTICLE V
MISCELLANEOUS
-------------
SECTION 5.01. Amendments.
(a) This Agreement and the Warrants may be amended by the parties
hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that are not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, (iv) adding to the covenants of the Company for the benefit of the
holders of the Warrants or surrendering any right or power conferred upon the
Company under this Agreement, (v) amending this Agreement and the Warrants in
any manner that the Company may deem to be necessary or desirable and that will
not adversely affect the interests of the holders of such Warrants in any
material respect.
(b) The Company and the Warrant Agent may amend this Agreement and
the Warrants by executing a Supplemental Agreement with the consent of the
holders of not fewer than 66-2/3% in number of the unexercised Warrants affected
by such amendment, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the holders of the Warrants under this
Agreement; provided, however, that, without the consent of each holder affected
thereby, no such amendment may be made that (i) changes the Warrants so as to
reduce the [principal amount] [number] of Warrant Securities purchasable upon
exercise of the Warrants, (ii) shortens the period of time during which the
Warrants may be exercised, (iii) otherwise adversely affects the exercise rights
of the holders in any material respect, or (iv) reduces the number of
unexercised Warrants the consent of the holders of which is required for
amendment of this Agreement or the Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance.
The Company may consolidate or merge with or into any other corporation or sell,
lease, transfer or convey all or substantially all of its assets to any other
corporation; provided that (i) either (x) the Company is the continuing
corporation or (y) the corporation (if other than the Company) that is formed by
or results from any such consolidation or merger or that receives
-12-
<PAGE>
such assets is a corporation organized and existing under the laws of the United
States of America or a state thereof and such corporation assumes the
obligations of the Company with respect to the performance and observance of all
of the covenants and conditions of this Agreement to be performed or observed by
the Company and (ii) the Company or such successor corporation, as the case may
be, must not immediately be in default under this Agreement. If at any time
there shall be any consolidation or merger or any sale, lease, transfer,
conveyance or other disposition of all or substantially all of the assets of the
Company, the successor or assuming corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrant Certificates as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, lease, transfer, conveyance (other than by way of lease)
or other disposition, the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor
or assuming corporation thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, Warrant Certificates evidencing
the Warrants not theretofore exercised, in exchange and substitution for the
Warrant Certificates theretofore issued. Such Warrant Certificates shall in all
respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates evidencing the Warrants theretofore issued in accordance
with the terms of this Agreement as though such new Warrant Certificates had
been issued at the date of the execution hereof. In case of any such merger or
consolidation or sale, lease, transfer, conveyance or other disposition of all
or substantially all of the assets of the Company, such changes in phraseology
and form (but not in substance) may be made in the new Warrant Certificates, as
may be appropriate.
SECTION 5.03. Notices and Demands to the Company and Warrant Agent.
If the Warrant Agent shall receive any notice or demand addressed to the Company
by the holder of a Warrant, the Warrant Agent shall promptly forward such notice
or demand to the Company.
SECTION 5.04. Addresses. Any communications from the Company to the
Warrant Agent with respect to this Agreement shall be addressed to
__________________________, Attention: ________________________, and any
communications from the Warrant Agent to the Company with respect to this
Agreement shall be addressed to AmSouth Bancorporation, 1400 AmSouth-Sonat
Tower, 1900 Fifth Avenue North, Birmingham, Alabama 35203, Attention: General
Counsel (or such other address as shall be specified in writing by the Warrant
Agent or by the Company, as the case may be). The Company or the Warrant Agent
shall give notice to the holders of Warrants by mailing written notice by first
class mail, postage prepaid, to such holders as their names and addresses appear
in the books and records of the Warrant Agent [or, prior to the Detachment Date,
on the register of the Offered Securities].
SECTION 5.05. APPLICABLE LAW. THIS AGREEMENT AND EACH WARRANT ISSUED
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
-13-
<PAGE>
SECTION 5.06. Delivery of Prospectus. The Company shall furnish to
the Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant by the holder
thereof, the Warrant Agent shall deliver a Prospectus to such holder, prior to
or concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company shall
from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
state laws, which may be or become necessary or appropriate in connection with
the issuance, sale, transfer and delivery of the Warrants, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities to
be issued upon exercise of Warrants or upon the expiration of the period during
which the Warrants are exercisable.
SECTION 5.08. Payment of Taxes. The Company will pay all stamp and
other duties, if any, to which, under the laws of the United States of America,
this Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this
Agreement or the Warrant Certificates expressed or implied and nothing that may
be inferred from any of the provisions hereof or thereof is intended, or shall
be construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent and their respective successors and assigns, and
the holders of the Warrants any right, remedy or claim under or by reason of
this Agreement or the Warrants or of any covenant, condition, stipulation,
promise or agreement hereof or thereof; and all covenants, conditions,
stipulations, promises and agreements contained in this Agreement or the Warrant
Certificates shall be for the sole and exclusive benefit of the Company and the
Warrant Agent and their respective successors and assigns and of the holders of
the Warrants.
SECTION 5.10. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 5.11. Severability. If any provision in this Agreement or in
the Warrant Certificates shall be or become invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but such counterparts shall together constitute but one and the same
instrument.
-14-
<PAGE>
Section 5.13 Definitions. For all purposes of this Warrant
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation;
(b) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Warrant Agreement; and
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Warrant Agreement as a whole and not to any
particular Article, Section or other subdivision.
SECTION 5.14. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent and at the office of the Company at 1400 AmSouth-
Sonat Tower, 1900 Fifth Avenue North, Birmingham, Alabama 35203, for inspection
by any holder of Warrants. The Warrant Agent may require any such holder to
submit such holder's Warrant Certificate for inspection by it.
-15-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
AMSOUTH BANCORPORATION
By: _________________________
Name:
Title:
[SEAL]
Attest:
___________________________
[Assistant] Secretary
[WARRANT AGENT]
[SEAL] By: _________________________
Name:
Title:
Attest:
___________________________
[Assistant] Secretary
-16-
<PAGE>
EXHIBIT A
---------
[FORM OF WARRANT CERTIFICATE]
[If Securities with Warrants that are not immediately detachable or Warrants
- ----------------------------------------------------------------------------
that are not immediately exercisable are offered - [PRIOR TO _______________,]
- --------------------------------------------------
THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR EXCHANGED UNLESS ATTACHED
TO A [TITLE OF OFFERED SECURITY] AND (II)] CANNOT BE EXERCISED IN WHOLE OR IN
PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
AMSOUTH BANCORPORATION
No. ___________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON _________, ___
This certifies that ________________________ or registered assigns is
the registered holder of [Insert number initially issued] warrants to purchase
certain securities (the "Warrants"). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from AmSouth Bancorporation, a Delaware corporation (the
"Company"), [$_________ principal amount] [______] of the Company's [Title of
Warrant Securities] (the "Warrant Securities"), [issued or to be issued under
the Indenture (as hereinafter defined)], at the Exercise Price set forth below.
The exercise price of each Warrant (the "Exercise Price") shall be $_________
[modify as appropriate to reflect the terms of the offered Warrants].
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, on any Business Day (as defined below) occurring during the period (the
"Exercise Period") commencing on [the date of issuance thereof]
[________________ __, ____] and ending at 5:00 P.M., New York time, on
____________ __, ____ (the "Expiration Date"). Each Warrant remaining
unexercised after 5:00 P.M., New York time, on the Expiration Date shall become
void, and all rights of the holder of this Warrant Certificate evidencing such
Warrant shall cease.
A-1
<PAGE>
The holder of this Warrant Certificate may exercise any Warrant
evidenced hereby by delivering, not later than 5:00 P.M., New York time, on any
Business Day (the "Exercise Date") to [name of Warrant Agent] (the "Warrant
Agent", which term includes any successor warrant agent under the Warrant
Agreement described below) at its corporate trust department at _______, (i)
this Warrant Certificate, properly completed (including the information
specified on the reverse hereof) and duly executed by the holder hereof and (ii)
the Exercise Price for each Warrant to be exercised in lawful money of the
United States of America by certified or official bank check or by bank wire
transfer in immediately available funds. If either this Warrant Certificate,
properly completed and duly executed as aforesaid, or the Exercise Price
therefor, in the proper amount and in the specified funds, is received by the
Warrant Agent after 5:00 P.M., New York time, on the specified Exercise Date,
the Warrants will be deemed to be received and exercised on the Business Day
next succeeding the Exercise Date. If the date specified as the Exercise Date
is not a Business Day, the Warrants will be deemed to be received and exercised
on the next succeeding day which is a Business Day. If the Warrants to be
exercised are received or deemed to be received after the Expiration Date, the
exercise thereof will be null and void and any funds delivered to the Warrant
Agent will be returned to the holder as soon as practicable. In no event will
interest accrue on funds deposited with the Warrant Agent in respect of an
exercise or attempted exercise of Warrants. The validity of any exercise of
Warrants will be determined by the Warrant Agent in its sole discretion and such
determination will be final and binding upon the holder of the Warrants and the
Company. Neither the Warrant Agent nor the Company shall have any obligation to
inform a holder of Warrants of the invalidity of any exercise of Warrants. As
used herein, the term "Business Day" means any day which is not a Saturday or
Sunday and is not a legal holiday or a day on which banking institutions
generally are authorized or obligated by law or regulation to close in the
principal place of business of the Warrant Agent and the Company.
If fewer than all the Warrants evidenced hereby are exercised, the
Warrants evidenced by this Warrant Certificate may be exercised only in whole
numbers of Warrants. If fewer than all of the Warrants evidenced by a Warrant
Certificate are exercised, a new Warrant Certificate for the number of Warrants
remaining unexercised shall be executed by the Company and countersigned by the
Warrant Agent as provided in Section 1.02 of the Warrant Agreement, and
delivered to the holder of such Warrants at the address specified on the books
of the Warrant Agent or as otherwise specified by such registered holder.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of ___________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file and can be inspected at the above-
mentioned office of the Warrant Agent and at the office of the Company at 1400
AmSouth-Sonat Tower, 1900 Fifth Avenue North, Birmingham, Alabama 35203.
[If the Warrant Securities are Debt Securities - The Warrant
---------------------------------------------
Securities to be issued and delivered upon the exercise of the Warrants
evidenced by this Warrant Certificate will be issued under and in accordance
with the Indenture, dated as of _________ __, ____ (the
A-2
<PAGE>
"Indenture"), between the Company and [name of trustee] _________________, as
trustee (together with any successor or successors as such trustee, the
"Trustee"), and will be subject to the terms and provisions contained in the
Warrant Securities and in the Indenture.] The accrual of [interest] [dividends],
if any, on the Warrant Securities issued upon the valid exercise of any Warrant
will be governed by the terms of the applicable [Indenture] [certificate of
designations] and such Warrant Securities. From and after the issuance of such
Warrant Securities, the former holder of the Warrants exercised will be entitled
to the benefits of the [Indenture] [certificate of designations] under which
such Warrant Securities are issued and such former holder's right to receive
payments of [principal of (and premium, if any) and interest, if any, on]
[dividends and any other amounts payable in respect of] the Warrant Securities
shall be governed by, and shall be subject to, the terms and provisions of such
[Indenture] [certificate of designations] and the Warrant Securities. Copies of
the [Indenture, including the form of the Warrant Securities,] [certificate of
designations] are on file at the corporate trust office of the Trustee.
[If Securities and Warrants that are not immediately detachable are
------------------------------------------------------------------
offered - Prior to the Detachment Date, this Warrant Certificate may be
- -------
exchanged or transferred only together with the [title of Offered Security] (the
"Offered Security") to which this Warrant Certificate is attached, and only for
the purpose of effecting, or in conjunction with, an exchange or transfer of
such Offered Security. Additionally, [on or prior to the Detachment Date,] each
transfer of such Offered Security on the register of the Offered Securities
shall operate also to transfer the Warrants to which such Offered Securities was
initially attached. [From and after the Detachment Date, the above provisions
shall be of no further force and effect and upon]] [If Offered Securities and
-------------------------
Warrants that are immediately detachable are offered - Upon] due presentment for
- ----------------------------------------------------
registration of transfer or exchange of this Warrant Certificate at the
corporate trust office of the Warrant Agent, the Company shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 of the
Warrant Agreement, in the name of the designated transferee a new Warrant
Certificate of any authorized denomination evidencing in the aggregate a like
number of unexercised Warrants, subject to the limitations provided in the
Warrant Agreement.
This Warrant Certificate shall not entitle the holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
[the right to receive the payments of principal of (and premium, if any), and
interest, if any, on Debt Securities purchasable upon such exercise or to
enforce any of the covenants in the applicable Indenture] [the right to receive
dividends, if any, or payments upon the liquidation, dissolution or winding up
of the Company or to exercise voting rights, if any].
THIS WARRANT CERTIFICATE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
This Warrant Certificate shall not be entitled to any benefit under
the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent.
A-3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated as of ________ __, ____
AMSOUTH BANCORPORATION
By: _________________________
Name:
Title:
[SEAL]
Attest:
_____________________________
[Assistant] Secretary
Countersigned on the date above written:
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ___________________________
Authorized Signature
A-4
<PAGE>
Instructions for Exercise of Warrant
------------------------------------
To exercise the Warrants evidenced hereby, the Warrant holder must, by
5:00 P.M., New York time, on the specified Exercise Date, deliver to the Warrant
Agent at its corporate trust department, a certified or official bank check or a
wire transfer in immediately available funds, in each case payable to the
Warrant Agent at Account No. ____, in an amount equal to the Exercise Price in
full for the Warrants exercised. In addition, the Warrant holder must provide
the information required below and deliver this Warrant Certificate to the
Warrant Agent at the address set forth below. This Warrant Certificate,
completed and duly executed, must be received by the Warrant Agent by 5:00 P.M.,
New York time, on the specified Exercise Date.
FORM OF ELECTION TO PURCHASE TO BE EXECUTED IF
WARRANT HOLDER DESIRES TO EXERCISE THE WARRANTS
EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on __________,
____ (the "Exercise Date"), _____________ Warrants, evidenced by this Warrant
Certificate, to purchase, [$_____________ principal amount] [_________________]
of the [Title of Warrant Securities] (the "Warrant Securities") of AmSouth
Bancorporation, a Delaware corporation (the "Company"), and represents that on
or before the Exercise Date such holder has tendered payment for such Warrant
Securities by certified or official bank check or bank wire transfer in
immediately available funds to the order of the Company c/o [Name and address of
Warrant Agent], in the amount of $_____________ in accordance with the terms
hereof. The undersigned requests that said [principal amount of] [number of]
Warrant Securities be in fully registered form, in the authorized denominations,
registered in such names and delivered, all as specified in accordance with the
instructions set forth below.
If said [principal amount] [number] of Warrant Securities is less than
all of the Warrant Securities purchasable hereunder, the undersigned requests
that a new Warrant
A-5
<PAGE>
Certificate evidencing the remaining balance of the Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated: ______________ __, ____
Name__________________________
(Please Print)
- --------------------------
/ / / /- / / /- / / / / /
- ------------------------
(Insert Social Security
or Other Identifying
Number of Holder) Address_______________________
_______________________
Signature_____________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
- -------------------------------------------------------------------------------
the exercising holder and the delivery of this Warrant Certificate will be
- --------------------------------------------------------------------------
deemed to be made only when actually received by the Warrant Agent. If delivery
- --------------------------------------------------------------------------------
is by mail, registered mail with return receipt requested, properly insured, is
- -------------------------------------------------------------------------------
recommended. In all cases, sufficient time should be allowed to assure timely
- ------------------------------------------------------------------------------
delivery.
- --------
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
Name in which Warrant Securities
are to be registered if other than
in the name of the registered holder
of this Warrant Certificate:
______________________________
A-6
<PAGE>
Address to which Warrant Securities
are to be mailed if other than address
of registered holder of this Warrant
Certificate as shown on the books of
the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this
Warrant Certificate:
______________________________
Address to which certificate representing
unexercised Warrants, if any, are to be
mailed if other than address of registered
holder of this Warrant Certificate as
shown on the books of the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
Dated:
______________________________
Signature
(Signature must conform in all respects
to the name of the holder as specified
on the face of this Warrant Certificate.
If Warrant Securities, or a Warrant
Certificate evidencing unexercised
Warrants, are to be issued in a name
other than that of the registered holder
hereof or are to be
A-7
<PAGE>
delivered to an address other than the
address of such holder as shown on the books
of the Warrant Agent, the above signature
must be guaranteed by a member firm of a
registered national stock exchange, a member
of the National Association of Securities
Dealers, Inc. or by a commercial bank or
trust company having an office or
correspondent in the United States.
SIGNATURE GUARANTEE
- -------------------
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-8
<PAGE>
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED _________________ hereby sells, assigns and
transfers unto
__________________________________ _______________________
(Please print name and address (Please insert social
including zip code) security or other
identifying number)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ____________ Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
__________________________________
Signature
(Signature must conform in all respects to
the name of the holder as specified on the
face of this Warrant Certificate and must
bear a signature guarantee by a member firm
of a registered national securities exchange,
a member of the National Association of
Securities Dealers, Inc. or by a commercial
bank or trust company having an office or
correspondent in the United States)
SIGNATURE GUARANTEE
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-9
<PAGE>
EXHIBIT 5
August 13, 1998
AmSouth Bancorporation,
AmSouth - Sonat Tower,
1900 Fifth Avenue North,
Birmingham, Alabama 35203.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933
(the "Act") of $500,000,000 aggregate initial offering price of (i) senior debt
securities (the "Senior Debt Securities") and subordinated debt securities (the
"Subordinated Debt Securities" and, collectively with the Senior Debt
Securities, the "Debt Securities"), (ii) shares of preferred stock, without par
value (the "Preferred Stock"), which may be issued in the form of depositary
shares (the "Depositary Shares") evidenced by depositary receipts (the
"Depositary Receipts"), (iii) shares of common stock, par value $1.00 per share
(the "Common Stock"), and related stock purchase rights (the "Rights") to be
issued pursuant to the
<PAGE>
AmSouth Bancorporation -2-
Stockholder Protection Rights Agreement, dated as of December 18, 1997 (the
"Rights Agreement"), between the Company and AmSouth Bank, as rights agent (the
"Rights Agent"), and (iv) warrants to purchase Debt Securities, Preferred Stock
or Common Stock (the "Warrants" and, collectively with the Debt Securities,
Preferred Stock, Depositary Shares, Common Stock and Rights, the "Securities")
of AmSouth Bancorporation, a Delaware corporation (the "Company"), we, as your
counsel, have examined such corporate records, certificates and other documents,
and such questions of law, as we have considered necessary or appropriate for
the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our
opinion:
(1) With respect to the Senior Debt Securities, when the registration
statement relating to the Securities (the "Registration Statement") has
become effective under the Act, the indenture relating to the Senior Debt
Securities (the "Senior Indenture") has been duly authorized, executed and
delivered by each of the parties thereto, the terms of the Senior Debt
Securities and of their issuance and sale have been
<PAGE>
AmSouth Bancorporation -3-
duly established in conformity with the Senior Indenture so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, and the Senior Debt Securities have
been duly executed and authenticated in accordance with the Senior
Indenture and issued and sold as contemplated in the Registration
Statement, the Senior Debt Securities will constitute valid and legally
binding obligations of the Company, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(2) With respect to the Subordinated Debt Securities, when the
Registration Statement has become effective under the Act, the Supplemental
Indenture to the indenture relating to the Subordinated Debt Securities
(the "Subordinated Indenture"), which is referred to in the Registration
Statement, has been
<PAGE>
AmSouth Bancorporation -4-
duly authorized, executed and delivered by each of the parties thereto, the
terms of the Subordinated Debt Securities and of their issuance and sale
have been duly established in conformity with the Subordinated Indenture,
as supplemented by the Supplemental Indenture referred to above, so as not
to violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
having jurisdiction over the Company, and the Subordinated Debt Securities
have been duly executed and authenticated in accordance with the
Subordinated Indenture and issued and sold as contemplated in the
Registration Statement, the Subordinated Debt Securities will constitute
valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
<PAGE>
AmSouth Bancorporation -5-
(3) With respect to the Preferred Stock, when the Registration
Statement has become effective under the Act, a certificate of designations
with respect to the Preferred Stock substantially in the form filed as an
exhibit to the Registration Statement has been filed with the Secretary of
State of the State of Delaware, the terms of the Preferred Stock and of its
issuance and sale have been duly established in conformity with the
Company's certificate of incorporation so as not to violate any applicable
law or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction
over the Company, and the Preferred Stock has been duly issued and sold as
contemplated by the Registration Statement, the Preferred Stock will be
validly issued, fully paid and nonassessable.
(4) With respect to the Depositary Shares, when the Registration
Statement has become effective under the Act, the deposit agreement
relating to the Depositary Shares (the "Deposit Agreement") to be entered
into between the Company and a bank or trust
<PAGE>
AmSouth Bancorporation -6-
company selected by the Company to act as depositary thereunder (the
"Depositary") has been duly authorized, executed and delivered by each of
the parties thereto, the terms of the Depositary Shares and of their
issuance and sale have been duly established in conformity with the Deposit
Agreement so as not to violate any applicable law or result in a default
under or breach of any agreement or instrument binding upon the Company and
so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, the Preferred Stock
that is represented by the Depositary Shares has been duly authorized,
validly issued, fully paid and delivered to the Depositary, and the
Depositary Receipts evidencing the Depositary Shares have been executed and
countersigned in accordance with the Deposit Agreement, issued against
deposit of the Preferred Stock and sold as contemplated by the Registration
Statement and the Deposit Agreement, the Depositary Receipts evidencing the
Depositary Shares will be validly issued and will entitle the holders
thereof to the rights specified in the Depositary
<PAGE>
AmSouth Bancorporation -7-
Shares and the Deposit Agreement, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(5) With respect to the Common Stock, when the Registration Statement
has become effective under the Act, the terms of the sale of the Common
Stock have been duly established in conformity with the Company's
certificate of incorporation so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding
upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the
Company, and the Common Stock has been duly issued and sold as contemplated
by the Registration Statement, the Common Stock will be validly issued,
fully paid and nonassessable.
(6) Assuming that the Board of Directors of the Company, after fully
informing itself with respect to the Rights Agreement and the Rights and
after giving due consideration to all relevant matters, determined
<PAGE>
AmSouth Bancorporation -8-
that the execution and delivery of the Rights Agreement and the issuance of
the Rights thereunder would be in the best interests of the Company and its
stockholders, and assuming further that the Rights Agreement has been duly
authorized, executed and delivered by the Rights Agent, then when the
Registration Statement has become effective under the Act and the Common
Stock has been validly issued and sold as contemplated by the Registration
Statement, the Rights attributable to the Common Stock will be validly
issued.
(7) With respect to the Warrants, when the Registration Statement has
become effective under the Act, the warrant agreement relating to the
Warrants (the "Warrant Agreement") has been duly authorized, executed and
delivered, the terms of the Warrants and of their issuance and sale have
been duly established in conformity with the Warrant Agreement so as not to
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body
<PAGE>
AmSouth Bancorporation -9-
having jurisdiction over the Company, and the Warrants have been duly
executed and countersigned in accordance with the Warrant Agreement and
issued and sold as contemplated by the Registration Statement and the
Warrant Agreement, the Warrants will constitute valid and legally binding
obligations of the Company, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
In connection with our opinion set forth in paragraph (6) above, we
note that the question whether the Board of Directors of the Company might be
required to redeem the Rights at some future time will depend upon the facts and
circumstances existing at that time and, accordingly, is beyond the scope of
such opinion.
We note that, as of the date of this opinion, a judgment for money in
an action based on a Security denominated in a foreign currency or currency unit
in a Federal or state court in the United States ordinarily would be enforced in
the United States only in United States dollars. The date used to determine the
rate of conversion
<PAGE>
AmSouth Bancorporation -10-
of the foreign currency or currency unit in which a particular Security is
denominated into United States dollars will depend upon various factors,
including which court renders the judgment. Under Section 27 of the New York
Judiciary Law, a state court in the State of New York rendering a judgment on a
Security denominated in a foreign currency or currency unit would be required to
render such judgment in such foreign currency or currency unit, and such
judgment would be converted into United States dollars at the exchange rate
prevailing on the date of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the United
States, the laws of the State of New York and the General Corporation Law of the
State of Delaware, and we are expressing no opinion as to the effect of the laws
of any other jurisdiction.
We have relied as to certain matters on information obtained from
public officials, officers of the Company and other sources believed by us to be
responsible, and we have assumed that the Subordinated Indenture has been duly
authorized, executed and delivered by the Trustee
<PAGE>
AmSouth Bancorporation -11-
thereunder, which assumption we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Validity of
the Securities" in the Prospectus. In giving such consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
SULLIVAN & CROMWELL
<PAGE>
EXHIBIT 12.1
EXHIBIT 12(a)
AmSouth Bancorporation
Computation of Ratio of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Three Months Ended Year Ended December 31,
March 31, 1998 1997 1996 1995 1994 1993
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Net income 62,023 226,167 182,676 174,955 127,290 146,720
Applicable income taxes 34,135 122,523 105,576 100,222 66,050 71,843
Fixed charges excluding interest on deposits 64,210 231,022 204,183 142,506 127,043 70,651
--------------------------------------------------------------------------
Earnings excluding interest on deposits 160,368 579,712 492,435 417,683 320,383 289,214
Interest on deposits 123,097 484,087 511,345 549,470 368,961 280,854
--------------------------------------------------------------------------
Earnings including interest on deposits 283,465 1,063,799 1,003,780 967,153 689,344 570,068
FIXED CHARGES
Interest on indebtedness 60,718 217,424 190,095 129,926 111,453 58,472
Amortization of debt costs and interest
component of rental payments 3,492 13,598 14,088 12,580 15,590 12,179
--------------------------------------------------------------------------
Fixed charges excluding interest on deposits 64,210 231,022 204,183 142,506 127,043 70,651
Interest on deposits 123,097 484,087 511,345 549,470 368,961 280,854
--------------------------------------------------------------------------
Fixed charges including interest on deposits 187,307 715,109 715,528 691,976 496,004 351,505
RATIO OF EARNINGS TO FIXED CHARGES
Excluding interest on deposits 2.50 2.51 2.41 2.93 2.52 4.09
Including interest on deposits 1.51 1.49 1.40 1.40 1.39 1.62
</TABLE>
<PAGE>
EXHIBIT 12.2
Exhibit 12(b)
AmSouth Bancorporation
Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Dividends
<TABLE>
<CAPTION>
Three Months Ended Year Ended December 31,
March 31, 1998 1997 1996 1995 1994 1993
-------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Net income 62,023 226,167 182,676 174,955 127,290 146,720
Applicable income taxes 34,135 122,523 105,576 100,222 66,050 71,843
Fixed charges excluding interest on deposits 64,210 231,022 204,183 142,506 127,043 70,651
---------------------------------------------------------------------------
Earnings excluding interest on deposits 160,368 579,712 492,435 417,683 320,383 289,214
Interest on deposits 123,097 484,087 511,345 549,470 368,961 280,854
---------------------------------------------------------------------------
Earnings including interest on deposits 283,465 1,063,799 1,003,780 967,153 689,344 570,068
COMBINED FIXED CHARGES AND
PREFERRED DIVIDENDS
Interest on indebtedness 60,718 217,424 190,095 129,926 111,453 58,472
Amortization of debt costs and interest
component of rental payments 3,492 13,598 14,088 12,580 15,590 12,179
Preferred stock dividends -0- -0- -0- -0- -0- -0-
---------------------------------------------------------------------------
Combined fixed charges and preferred dividends
excluding interest on deposits 64,210 231,022 204,183 142,506 127,043 70,651
Interest on deposits 123,097 484,087 511,345 549,470 368,961 280,854
---------------------------------------------------------------------------
Combined fixed charges and preferred dividends
including interest on deposits 187,307 715,109 715,528 691,976 496,004 351,505
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED DIVIDENDS
Excluding interest on deposits 2.50 2.51 2.41 2.93 2.52 4.09
Including interest on deposits 1.51 1.49 1.40 1.40 1.39 1.62
</TABLE>
<PAGE>
Exhibit 15--Letter Re: Unaudited Interim Financial Information
Board of Directors
AmSouth Bancorporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-3 No. 333-44263) of AmSouth BanCorporation for the Registration of up to
$500,000,000 of debt or equity securities of our report dated April 24, 1998
relating to the unaudited consolidated interim financial statements of AmSouth
Bancorporation which are included in its Form 10-Q for the quarter ended
March 31, 1998.
Pursuant to Rule 436(c) of the Securities Act of 1933 our reports are not part
of the registration statement prepared or certified by accountants within the
meaning of Section 7 or 11 of the Securities Act of 1933.
/s/ Ernst & Young LLP
Birmingham, Alabama
August 13, 1998
<PAGE>
EXHIBIT 23(b)
Exhibit 23(b)--Consent of Ernst & Young LLP
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 No. 333-44263) and related Prospectus of
AmSouth Bancorporation for the registration of up to $500,000,000 of debt or
equity securities and to the incorporation by reference therein of our report
dated February 10, 1998, with respect to the consolidated financial statements
of AmSouth Bancorporation included in its Annual Report (Form 10-K) for the year
ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Birmingham, Alabama
August 13, 1998
<PAGE>
EXHIBIT 24.11
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Donald E. Hess
-------------------------------------
DONALD E. HESS
<PAGE>
EXHIBIT 24.1
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ C. Dowd Ritter
-------------------------------------
C. DOWD RITTER
<PAGE>
EXHIBIT 24.2
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ J. Harold Chandler
-------------------------------------
J. HAROLD CHANDLER
<PAGE>
EXHIBIT 24.3
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Rodney C. Gilbert
-------------------------------------
RODNEY C. GILBERT
<PAGE>
EXHIBIT 24.4
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Elmer B. Harris
-------------------------------------
ELMER B. HARRIS
<PAGE>
EXHIBIT 24.5
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Victoria B. Jackson
-------------------------------------
VICTORIA B. JACKSON
<PAGE>
EXHIBIT 24.6
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Ronald L. Kuehn, Jr.
-------------------------------------
RONALD L. KUEHN, JR.
<PAGE>
EXHIBIT 24.7
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ James R. Malone
-------------------------------------
JAMES R. MALONE
<PAGE>
EXHIBIT 24.8
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Francis A. Newman
-------------------------------------
FRANCIS A. NEWMAN
<PAGE>
EXHIBIT 24.9
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Claude B. Nielson
-------------------------------------
CLAUDE B. NIELSON
<PAGE>
EXHIBIT 24.10
DIRECTOR'S
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of AmSouth
Bancorporation, a Delaware corporation, (the "Company") does hereby constitute
and appoint each of Stephen A. Yoder, Carl L. Gorday or William H. Caughran,
Jr., and any of them, with full power of substitution, his true and lawful
attorney-in-fact and agent, for him and in his name, place and stead, to
execute and sign a Registration Statement or Statements on Form S-3 and
amendments and supplements thereto to be filed by the Company with the
Securities and Exchange Commission, pursuant to the provisions of the
Securities Act of 1933 and the rules and regulations of the Securities and
Exchange Commission thereunder with respect to equity, debt and other
securities of the Company having an initial aggregate offering price of up to
$500,000,000 to be issued thereunder from time to time, and, further, to
execute and sign any and all pre-effective and post-effective amendments to
such Registration Statement or Statements and any and all other documents in
connection therewith, and to cause any and all such documents to be filed with
the Securities and Exchange Commission, and any state securities authorities
and the New York Stock Exchange, Inc., granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all the acts of said attorney-in-fact and agent which
he may lawfully do in the premises or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand on this 18th
day of December, 1997.
/s/ Herbert A. Sklenar
-------------------------------------
HERBERT A. SKLENAR
<PAGE>
EXHIBIT 25
_________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
______________________________
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
_________________________________
AMSOUTH BANCORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 63-0591257
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
AMSOUTH-SONAT TOWER
1900 FIFTH AVENUE NORTH
BIRMINGHAM, ALABAMA 35203
(Address of principal executive offices) (Zip Code)
AMSOUTH BANCORPORATION
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3. -15. Not Applicable
ITEM 16. LIST OF EXHIBITS.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 - Incorporated
herein by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1
Statement, Registration No. 333-25843 and Certificate
of Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997, copy
attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended
on November 18, 1997. Copy attached.
-2-
<PAGE>
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. - Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1997. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 12th day
of August 1998.
BANKERS TRUST COMPANY
By: /s/ Shafiq Jadavji
------------------------------
Shafiq Jadavji
Assistant Vice President
-4-
<PAGE>
State of New York,
BANKING DEPARTMENT
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New York,
DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF AMENDMENT OF
THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION 8005 OF THE
BANKING LAW," dated June 19, 1997, providing for an increase in authorized
capital stock from $1,601,666,670 consisting of 100,166,667 shares with a par
value of $10 each designated as Common Stock and 600 shares with a par value of
$1,000,000 each designated as Series Preferred Stock to $2,001,666,670
consisting of 100,166,667 shares with a par value of $10 each designated as
Common Stock and 1,000 shares with a par value of $1,000,000 each designated as
Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City of New
York,
this 19TH day of June in the Year of our Lord
---- ----
one thousand nine hundred and NINETY-SEVEN.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
_____________________________
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred Million,
One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (100,166,667)
shares with a par value of $10 each designated as Common Stock and 1000
shares with a par value of One Million Dollars ($1,000,000) each designated
as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
---------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
---------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
------------------
Lea Lahtinen
Sworn to before me this 19th day
of June, 1997.
Sandra L. West
- -------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE>
BY-LAWS
of
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board
of Directors or any Committee thereof may participate in a meeting of the Board
of Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating
<PAGE>
in the meeting to hear each other at the same time. Participation by such means
shall constitute presence in person at such a meeting.
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or re-
elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board
of Directors may be filled by the affirmative vote of a majority of the
directors then in office, and the directors so elected shall hold office for the
balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time
to time on the third Tuesday of the month. If the day appointed for holding
such regular meetings shall be a legal holiday, the regular meeting to be held
on such day shall be held on the next business day thereafter. Special meetings
of the Board of Directors may be called upon at least two day's notice whenever
it may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall
conduct the annual directors' examinations of the Company as required by the New
York State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General
<PAGE>
Auditor to make such investigation as it deems necessary or advisable with
respect to the Company, its various departments and the conduct of its
operations. The Committee shall hold regular quarterly meetings and during the
intervals thereof shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a
Chairman of the Board and a Chief Executive Officer; and shall also elect a
President, and may also elect a Senior Vice Chairman, one or more Vice Chairmen,
one or more Executive Vice Presidents, one or more Senior Managing Directors,
one or more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of
Directors may require any and all officers and employees to give security for
the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer
of the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall
<PAGE>
perform all the duties usual to such office and shall have such other powers as
may be prescribed or assigned to him from time to time by the Board of Directors
or vested in him by law or by these By-Laws. He shall perform such other duties
and shall make such investigations, examinations and reports as may be
prescribed or required by the Audit Committee. The General Auditor shall have
unrestricted access to all records and premises of the Company and shall
delegate such authority to his subordinates. He shall have the duty to report to
the Audit Committee on all matters concerning the internal audit program and the
adequacy of the system of internal controls of the Company which he deems
advisable or which the Audit Committee may request. Additionally, the General
Auditor shall have the duty of reporting independently of all officers of the
Company to the Audit Committee at least quarterly on any matters concerning the
internal audit program and the adequacy of the system of internal controls of
the Company that should be brought to the attention of the directors except
those matters responsibility for which has been vested in the General Credit
Auditor. Should the General Auditor deem any matter to be of special immediate
importance, he shall report thereon forthwith to the Audit Committee. The
General Auditor shall report to the Chief Financial Officer only for
administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018
of the New York Banking Law, indemnify any person who is or was made, or
threatened to be made, a party to an action or proceeding, whether civil or
criminal, whether involving any actual or alleged breach of duty, neglect or
error, any accountability, or any actual or alleged misstatement, misleading
statement or other act or omission and whether brought or threatened in any
court or administrative or legislative body or agency, including an action by or
in the right of the Company to procure a judgment in its favor and an action by
or in the right of any other corporation of any type or kind, domestic or
foreign, or any partnership, joint venture, trust, employee benefit plan or
other enterprise, which any director or officer of the Company is servicing or
served in any capacity at the request of the Company by reason of the fact that
he, his testator or intestate, is or was a director or officer of the Company,
or is serving or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement, and costs, charges and expenses,
including attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the
<PAGE>
person serving another corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise so served at the specific request of
the Company, evidenced by a written communication signed by the Chairman of the
Board, the Chief Executive Officer or the President, and (ii) only if and to the
extent that, after making such efforts as the Chairman of the Board, the Chief
Executive Officer or the President shall deem adequate in the circumstances,
such person shall be unable to obtain indemnification from such other enterprise
or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement
of expense pursuant to this Article V (i) is a contract right pursuant to which
the person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Sandra L. West , Assistant Secretary of
-------------------------------------------------
Bankers Trust Company, New York, New York, hereby certify that the foregoing is
a complete, true and correct copy of the By-Laws of Bankers Trust Company, and
that the same are in full force and effect at this date.
Sandra L. West
--------------
ASSISTANT SECRETARY
DATED: August 12, 1998
------------------------------------
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
11
City, State ZIP: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3 |
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for December 31, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
-------------------------
C400
-----------------------------------
Dollar Amounts in Thousands RCFD Bil Mil Thou
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS |/ / / / / / / / / / / / / / / / / /|
1. Cash and balances due from depository institutions (from Schedule RC-A): |/ / / / / / / / / / / / / / / / / /|
a. Noninterest-bearing balances and currency and coin (1) ................... |0081 2,121,000 | 1.a.
b. Interest-bearing balances (2) ............................................ |0071 4,770,000 | 1.b.
2. Securities: |/ / / / / / / / / / / / / / / / / /|
a. Held-to-maturity securities (from Schedule RC-B, column A) ............... |1754 0 | 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).............. |1773 4,015,000 | 2.b.
3. Federal funds sold and securities purchased under agreements to resell....... |1350 28,927,000 | 3.
4. Loans and lease financing receivables: |/ / / / / / / / / / / / / / / / / /|
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 17,692,000|/ / / / / / / / / / / / / / / / / /| 4.a.
b. LESS: Allowance for loan and lease losses...................RCFD 3123 659,000|/ / / / / / / / / / / / / / / / / /| 4.b.
c. LESS: Allocated transfer risk reserve ......................RCFD 3128 0|/ / / / / / / / / / / / / / / / / /| 4.c.
d. Loans and leases, net of unearned income, |/ / / / / / / / / / / / / / / / / /|
allowance, and reserve (item 4.a minus 4.b and 4.c) ....................... |2125 17,033,000 | 4.d.
5. Trading Assets (from schedule RC-D) ........................................ |3545 45,488,000 | 5.
6. Premises and fixed assets (including capitalized leases) .................... |2145 766,000 | 6.
7. Other real estate owned (from Schedule RC-M) ................................ |2150 188,000 | 7.
8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) |2130 58,000 | 8.
9. Customers' liability to this bank on acceptances outstanding ................ |2155 633,000 | 9.
10. Intangible assets (from Schedule RC-M) ...................................... |2143 83,000 | 10.
11. Other assets (from Schedule RC-F) ........................................... |2160 5,957,000 | 11.
12. Total assets (sum of items 1 through 11) .................................... |2170 110,039,000 | 12.
</TABLE>
__________________________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
12
</TABLE>
City, State Zip: New York, NY 10006
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
<TABLE>
<CAPTION>
Schedule RC--Continued
Dollar Amounts in Thousands | / / / / / / / / Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
LIABILITIES | / / / / / / / / / / / / / / / / / / / / / / / |
13. Deposits: | / / / / / / / / / / / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from
Schedule RC-E, part I) | RCON 2200 24,608,000 |13.a.
(1) Noninterest-bearing(1) ................RCON 6631 2,856,000...| / / / / / / / / / / / / / / / / / / / / / / / |13.a.(1)
(2) Interest-bearing ......................RCON 6636 21,752,000...| / / / / / / / / / / / / / / / / / / / / / / / |13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, | / / / / / / / / / / / / / / / / / / / / / / / |
and IBFs (from Schedule RC-E part II) | RCFN 2200 20,529,000 |
(1) Noninterest-bearing ...................RCFN 6631 2,122,000 | / / / / / / / / / / / / / / / / / / / / / / / |13.b.(1)
(2) Interest-bearing ......................RCFN 6636 18,407,000 | / / / / / / / / / / / / / / / / / / / / / / / |
14. Federal funds purchased and securities sold under
agreements to repurchase | RCFD 2800 13,777,000 |
15. a. Demand notes issued to the U.S. Treasury ...........................| RCON 2840 0 |15.a.
b. Trading liabilities (from Schedule RC-D)............................| RCFD 3548 24,968,000 |
16. Other borrowed money (includes mortgage indebtedness and
obligations under capitalized leases): | / / / / / / / / / / / / / / / / / / / / / / |
a. With a remaining maturity of one year or less .......................|RCFD 2332 5,810,000 |
b. With a remaining maturity of more than one year through three years.....| A547 4,702,000 |
c. With a remaining maturity of more than three years.......................| A548 1,750,000 |16.c
17. Not Applicable. | / / / / / / / / / / / / / / / / / / / / / / |17.
18. Bank's liability on acceptances executed and outstanding ...............|RCFD 2920 633,000 |18.
19. Subordinated notes and debentures (2)...................................|RCFD 3200 1,307,000 |19.
20. Other liabilities (from Schedule RC-G) .................................|RCFD 2930 5,961,000 |20.
21. Total liabilities (sum of items 13 through 20) .........................|RCFD 2948 104,045,000 |21.
22. Not Applicable |/ / / / / / / / / / / / / / / / / / / / / |
|/ / / / / / / / / / / / / / / / / / / / / / / / /
EQUITY CAPITAL |/ / / / / / / / / / / / / / / / / / / / / |
23. Perpetual preferred stock and related surplus ..........................|RCFD 3838 1,000,000 |23.
24. Common stock ...........................................................|RCFD 3230 1,352,000 |24.
25. Surplus (exclude all surplus related to preferred stock) ...............|RCFD 3839 540,000 |25.
26. a. Undivided profits and capital reserves ..............................|RCFD 3632 3,526,000 |26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities .........................................................|RCFD 8434 ( 45,000) |26.b.
27. Cumulative foreign currency translation adjustments ....................|RCFD 3284 ( 379,000) |27.
28. Total equity capital (sum of items 23 through 27) ......................|RCFD 3210 5,994,000 |28.
29. Total liabilities and equity capital (sum of items 21 and 28)...........|RCFD 3300 110,039,000 |29.
<CAPTION>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing
work performed for the bank by independent Number
-----------------------
external auditors as of any date during 1996 ........................ | RCFD 6724 N/A | M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm which submits a report on the consolidated holding
company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
_____________________
(1) Including total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited-life preferred stock and related surplus.
