SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
February 24, 1999
AMSOUTH BANCORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-7476 63-0591257
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number Identification No.)
AmSouth-Sonat Tower
1900 Fifth Avenue North
Birmingham, Alabama 35203
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (205) 320-7151
N/A
(Former name or former address, if changed since last report)
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Item 5. Other Events.
On February 24, 1999, AmSouth Bancorporation ("AmSouth") entered into
an Underwriting Agreement (the "Underwriting Agreement") with Donaldson, Lufkin
& Jenrette Securities Corporation and Morgan Stanley & Co. Incorporated, as
Representatives of the several Underwriters named in Schedule II to such
agreement. The Underwriting Agreement relates to the issuance and sale of
$175,000,000 principal amount of AmSouth's 6.125% Subordinated Notes due 2009
(the "Notes"). The Notes have been registered under the Securities Act of 1933,
as amended, pursuant to the AmSouth's shelf registration statement on Form S-3
(File No. 333-44263). On March 1, 1999, AmSouth entered into a First
Supplemental Indenture (the "First Supplemental Indenture") with Bankers Trust
Company, as Trustee. The First Supplemental Indenture is supplemental to the
Indenture, dated as of May 25, 1994, between AmSouth and Bankers Trust Company,
as Trustee, relating to AmSouth's subordinated debt securities.
The Underwriting Agreement, the First Supplemental Indenture and the
global security representing AmSouth's $175,000,000 principal amount of 6.125%
Subordinated Notes due 2009 are attached hereto as exhibits and are incorporated
as part of this Current Report on Form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information
and Exhibits.
(c) Exhibits.
The following exhibits are filed as part of this Current Report on Form
8-K:
Exhibit No. Exhibit
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1 Underwriting Agreement, dated
February 24, 1999, between AmSouth
Bancorporation and Donaldson,
Lufkin & Jenrette Securities
Corporation and Morgan Stanley &
Co. Incorporated, as
Representatives of the several
Underwriters named in Schedule II
thereto.
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<PAGE>
4(a) First Supplemental Indenture, dated
as of March 1, 1999, between
AmSouth Bancorporation and Bankers
Trust Company, as Trustee,
supplemental to Indenture, dated as
of May 25, 1994, relating to
AmSouth Bancorporation's
subordinated debt securities.
4(b) Global security representing
AmSouth Bancorporation's
$175,000,000 6.125% Subordinated
Notes due 2009.
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<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMSOUTH BANCORPORATION
By /s/ Carl L. Gorday
--------------------------
Name: Carl L. Gorday
Title: Assistant Secretary
Date: March 1, 1999
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AMSOUTH BANCORPORATION
Underwriting Agreement
February 24, 1999
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 ScheduleII hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its securities identified
in ScheduleI hereto (the "Securities"), to be issued under an
indenture, dated as of May25, 1994 (the "Indenture"), between the
Company and Bankers Trust Company, as trustee (the "Trustee"). If the
firm or firms listed in ScheduleII hereto include only the firm or
firms listed in ScheduleI 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
Section1. Certain terms used in this Section1 are defined in
paragraph(c) hereof:
(a) The Company meets the requirements for the use of FormS-3
under the Securities Act of 1933, as amended (the "Act"), and has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement (file number of which is
set forth in ScheduleI 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 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 Rules415
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
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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
Rule424(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 Rule424(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 Qualification (FormT-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 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 Rule415 which
does not commence promptly after the effective date of a
registration statement, with the result that only information
required pursuant to Rule415 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.
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"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 Rule424(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. "Rule415", "Rule424" and "RegulationS-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 Item12 of FormS-3
which were filed under the Exchange Act or pursuant to Rule411
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.
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(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 ScheduleI hereto the principal amount
of the Securities set forth opposite such Underwriter's name in
ScheduleII hereto, except that, if ScheduleI hereto provides for
the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in ScheduleII 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 ScheduleI hereto, the Underwriters are
authorized to
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solicit offers to purchase Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of ScheduleIII 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 ScheduleI hereto of the
principal amount of the 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 amount of Securities set forth in
ScheduleI 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 Securities to
be purchased by each Underwriter as set forth in ScheduleII
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 Securities set forth opposite the name
of such Underwriter bears to the aggregate principal amount set
forth in ScheduleII 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 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.
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(a) Delivery of and payment for the Underwriters' Securities
shall be made on the date and at the time specified in ScheduleI
hereto, which date and time may be postponed by agreement between
the Representatives and the Company or as provided in Section8
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
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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 1:00p.m.,
New York time, on the business day prior to the Closing Date.
4. Agreements.
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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 Rule424(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
Rule424(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 Section4,
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.
<PAGE>
(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 Section11(a) of
the Act (including pursuant to Rule158 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.
(e) 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.
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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 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,
<PAGE>
as amended;
(ii) the Securities conform in all material respects to
the description thereof contained in the Final Prospectus under
the caption "Description of Notes";
(iii) this Agreement, any Delayed Delivery Contracts,
the Indenture and the Securities 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;
(iv) 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" and in the Company's Annual Report on Form10-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;
(v) 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
Rule424(b), has been made in the manner and within the time
period required by Rule424(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 Rule424(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
<PAGE>
eligibility and qualification of the Trustee or any other
trustee under the Indenture;
(vi) 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
(vii) neither the issue and sale of the Securities, nor
compliance by the Company with the provisions of the Securities,
the Indenture, 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
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(vi), (vii)(1) and (vii)(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 Securities have been duly authenticated,
issued and delivered; the Indenture and the Securities constitute
valid and legally binding obligations of the Company enforceable
in accordance with their
<PAGE>
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
(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 Rule424(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 Rule424(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, 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 Gibson, Dunn &
<PAGE>
Crutcher LLP, counsel for the Underwriters, an opinion or
opinions, dated the Closing Date, as to the matters set forth in
Section5(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 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
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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 Form10-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
<PAGE>
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
Exhibit12 to the Registration Statement, including the
information included or incorporated in Items1, 2, 6, 7 and
11 of the Company's Annual Report on Form10-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
Section5 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
<PAGE>
"nationally recognized statistical rating organization" (as
defined for purposes of Rule436(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 Section5 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 Section5 hereof is not satisfied, because of any termination
pursuant to Section9 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
<PAGE>
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.
(c) Promptly after receipt by an indemnified party under this Section7
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 Section7, 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
<PAGE>
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
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 Section7
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
<PAGE>
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 Section11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section7, 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 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 ScheduleII 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 ScheduleII 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
<PAGE>
without liability to any nondefaulting Underwriter or the Company. If any
Underwriter shall default as set forth in this Section8 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 Section7 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections6 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 ScheduleI
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
<PAGE>
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: /s/ List M. Underwood, Jr.
--------------------------------
Name: M. List Underwood, Jr.
Title: Senior Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
ScheduleI hereto.
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
MORGAN STANLEY & CO. INCORPORATED
By: DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
By:/s/ Tod D. Perkins
---------------------------------
Name: Tod D. Perkins
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in ScheduleII to the
foregoing Agreement.
<PAGE>
SCHEDULE I
Underwriting Agreement dated February 24, 1999
Registration Statement No. 333-44263
Representative(s) (including address for notices):
Donaldson, Lufkin & Jenrette Securities Corporation
Morgan Stanley & Co. Incorporated
c/o Donaldson, Lufkin & Jenrette Securities Corporation
277 Park Avenue
New York, NY 10172
Attention: Syndicate Department
Title, Purchase Price and Description of Debt Securities:
Title: 6.125% Subordinated Notes due 2009
Principal amount: $175,000,000
Price to public (include accrued
interest or amortization, if any): 99.175%
Purchase price to Underwriters (including
accrued interest or amortization, if any): 98.525%
Maturity: March 1, 2009
Denominations: $1,000
Sinking fund provisions: None
Redemption provisions: AmSouth, at its option, may redeem all or part of
the Notes at any time. The redemption price will equal the greater of (1)
100% of the principal amount of the Notes to be redeemed or (2) a "make
whole" amount, which will be calculated as described on pages S-3 and S-4
of the prospectus supplement. At the time of any redemption, AmSouth will
also pay all interest that has accrued to the redemption date on the
redeemed Notes.
Interest rate: 6.125% per annum
Interest payment dates: March 1 and September 1
Other provisions: N/A
Closing Date, Time and Location: 9:30 a.m. on March 1, 1999, at the offices of
Sullivan & Cromwell, 125 Broad Street, New York, New York
Method of Payment: Same-day funds by wire transfer
Type of Offering: Delayed Offering
Delayed Delivery Arrangements: None
Fee: N/A
Minimum principal amount of each contract: N/A
Maximum aggregate principal amount of all contracts: N/A
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: N/A
<PAGE>
SCHEDULE II
Principal Amount of
Securities to be
Underwriters Purchased
- ------------ ---------
Donaldson, Lufkin & Jenrette
Securities Corporation $131,250,000
Morgan Stanley & Co.
Incorporated 43,750,000
------------
Total $175,000,000
------------
<PAGE>
SCHEDULE III
Delayed Delivery Contract
[Date]
Donaldson, Lufkin & Jenrette Securities Corporation
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from AmSouth Bancorporation, a
Delaware corporation (the "Company"), and the Company agrees to sell to
the undersigned, on , 1999 (the "Delivery Date"), $ principal amount of
the Company's [Title of Securities] (the "Securities") offered by the
Company's Prospectus dated , 1999 and related Prospectus Supplement
dated , 1999 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 , 1999 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 undersigned 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 (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. 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)
NA990420.193/9+
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
AMSOUTH BANCORPORATION
TO
BANKERS TRUST COMPANY, TRUSTEE
--------------------------------------------
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 1, 1999
--------------------------------------------
Supplemental to Indenture,
dated as of May 25, 1994
--------------------------------------------
SUBORDINATED DEBT SECURITIES
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of March 1, 1999, 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:
<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, (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.
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<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.
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<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: /s/ John D. Kottmeyer
-------------------------------
Name: John D. Kottmeyer
Title: Executive Vice President
and Treasurer
ATTEST:
/s/ Carl L. Gorday
- ------------------------------
Assistant Secretary
BANKERS TRUST COMPANY, as Trustee
By: /s/ Shafiq Jadavji
-------------------------------
Name: Shafia Jadavji
Title: Assistant Vice President
ATTEST:
/s/ Vickie Rekoutis
- ------------------------------
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<PAGE>
STATE OF ALABAMA )
COUNTY OF BIRMINGHAM) ss.:
)
On the 25th day of February 25, 1999, before me personally came John D.
Kottmeyer, to me known, who, being by me duly sworn, did depose and say that
s/he is Executive VP & Treasurer 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.
/s/ Michelle A. Bridges
-----------------------------------
MY COMMISSION EXPIRES AUGUST 4, 2001
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ____ day of February __, 1999, 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.
/s/ Mathew Sherman
-----------------------------------
Matthew Sherman
Notary Public, State of New York
No. OISH5087362
Qualified in Westchester County
Commission Expires 11/3/99
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[Face of Security]
CUSIP No. 032 165 AF9
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.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to AmSouth
Bancorporation or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
AMSOUTH BANCORPORATION
6.125% SUBORDINATED NOTES DUE 2009
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY.
No. 1 $175,000,000
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 CEDE & CO., or registered assigns, the
principal sum of One Hundred and Seventy-Five Million Dollars on March 1, 2009,
and to pay interest thereon from March 1, 1999, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on March 1 and September 1 in each year, commencing September 1, 1999, at the
rate of 6.125% per annum, until the principal hereof is paid or made available
for payment. 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 February 15 or August 15 (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
<PAGE>
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.
The Company, at its option, may redeem all or part of the Securities at
any time, as further set forth on the reverse hereof.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, 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; 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.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: March 1, 1999
AMSOUTH BANCORPORATION
By /s/ C. Dowd Ritter
----------------------------------
Name: C. Dowd Ritter
Title: Chairman, President and
Chief Executive Officer
Attest:
/s/ Carl L. Gorday
- -----------------------------------
Carl L. Gorday
Assistant Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
As Trustee
By /s/ Shafiq Jadavij
---------------------------------,
Authorized Officer
Dated: March 1, 1999
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<PAGE>
[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 May 25, 1994, as supplemented by the
First Supplemental Indenture, dated as of March 1, 1999 (herein together 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.
The Securities of this series are subject to redemption upon not less
than 30 day's notice by mail, at any time, as a whole or in part, at the
election of the Company, at a Redemption Price equal to the greater of (i) 100%
of the principal amount of the Securities to be redeemed or (ii) the Make Whole
Amount (as defined below) with respect to the Securities so redeemed. The "Make
Whole Amount" with respect to the Securities redeemed on any Redemption Date
shall equal the sum of the present values, as of such Redemption Date, of the
Remaining Scheduled Payments (as defined below) discounted, on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months), at a rate
equal to the Treasury Rate (as defined below) plus 12.5 basis points. For
purposes of calculating the Make Whole Amount, the following terms have the
following meanings:
"Remaining Scheduled Payments" means the remaining scheduled payments of
the principal and interest that would be due after the redemption date of a
Security if such Security were not redeemed; provided, however, that if the
Redemption Date is not a scheduled Interest Payment Date, the amount of the
next succeeding scheduled interest payment on such Security shall be
reduced by the amount of interest accrued on such Security to such
Redemption Date.
"Treasury Rate" means an annual rate equal to the semiannual equivalent
yield to maturity, computed as of the third Business Day immediately
preceding the Redemption Date, of the Comparable Treasury Issue (as defined
below), assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury Price
for the Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by Donaldson, Lufkin & Jenrette Securities Corporation or an
affiliate, as of the third Business Day immediately preceding the
Redemption Date, as having a maturity comparable to the remaining term of
the Securities that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of
the Securities.
<PAGE>
"Comparable Treasury Price" means the average of three Reference Treasury
Dealer Quotations (as defined below) obtained by the Trustee for the
Redemption Date.
"Reference Treasury Dealers" means Donaldson, Lufkin & Jenrette (so long as
it continues to be a primary U.S. Government securities dealer) and any two
other primary U.S. Government securities dealers chosen by the Company. If
Donaldson, Lufkin & Jenrette ceases to be a primary U.S. Government
securities dealer, the Company shall appoint in its place another
nationally recognized investment banking firm that is a primary U.S.
Government securities dealer.
"Reference Treasury Dealer Quotation" means the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by a Reference Treasury Dealer at 3:30 p.m., New
York City time, on the third Business Day preceding the Redemption Date.
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 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.
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 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.
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
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<PAGE>
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 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 $1,000 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
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<PAGE>
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.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York.
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