EXHIBIT 4(l)
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AMSOUTH BANCORPORATION
TO
BANKERS TRUST COMPANY, TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
Dated as of _________ __, 19
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Supplemental to Indenture,
dated as of May 25, 1994
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SUBORDINATED DEBT SECURITIES
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FIRST SUPPLEMENTAL INDENTURE, dated as of _________ __, 19__, between
AMSOUTH BANCORPORATION, a corporation duly organized and existing under the laws
of the State of Delaware (the "Company"), and BANKERS TRUST COMPANY, a banking
corporation duly organized and existing under the laws of the State of New York,
as Trustee under the Indenture referred to below (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee are parties to the Indenture,
dated as of May 25, 1994 (the "Indenture"), pursuant to which the Company has
issued certain Securities that remain outstanding as of the date hereof; and
WHEREAS, Section 901 of the Indenture provides that the Company, when
authorized by a Board Resolution, and the Trustee may enter into a supplemental
indenture without the consent of any Holder to add to, change or eliminate any
of the provisions of the Indenture in respect of one or more series of
Securities, provided that any such addition, change or elimination (i) shall not
apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision, nor modify
the rights of the Holder of any such Security with respect to such provision, or
(ii) shall become effective only when there is no such Security Outstanding; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this First Supplemental Indenture to amend and supplement the Indenture
in certain respects, which amendment and supplement shall not apply to any
Securities created prior to the execution of this First Supplemental Indenture;
and
WHEREAS, the Company has duly authorized the execution and delivery of
this First Supplemental Indenture by a Board Resolution, as defined in the
Indenture, and all things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with the terms of the Indenture,
have been done;
NOW, THEREFORE, the Company and the Trustee hereby agree as follows:
Article I
AMENDMENTS
SECTION 1.1. Amendments to Section 101 of Indenture.
(a) The definition of "Existing Subordinated Indebtedness" in Section
101 of the Indenture is hereby amended and restated as follows:
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"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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rights of Entitled Persons in respect of Other Financial Obligations"
immediately following the words "Senior Indebtedness" therein.
SECTION 1.4. Amendment to Section 602 of Indenture. Section 602 of the
Indenture is hereby amended by deleting the words "Section 503(c)" immediately
following the words "in the case of any default of the character specified in"
therein and inserting in their place the words "Clause (C) of the definition of
"Default" set forth in Section 503".
SECTION 1.5. Amendment to Section 901 of Indenture. Paragraph (3) of
Section 901 of the Indenture is hereby amended by inserting the words "for the
benefit of the Holders of all or any series of Securities (and if such
additional Defaults or Events of Default are to be for the benefit of less than
all series of Securities, stating that such additional Defaults or Events of
Default are expressly being included solely for the benefit of such series)"
following the words "Events of Default" therein.
SECTION 1.6. Amendment to Section 1008 of Indenture. Section 1008 of
the Indenture is hereby amended by deleting the words "or in any of Sections
1005 to 1007, inclusive," therein.
SECTION 1.7. Amendment to Section 1303 of Indenture. Section 1303 of
the Indenture is hereby amended and restated as follows:
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as
the case may be, (1) the Company shall be released from its obligations
under Sections 1006 through 1007, inclusive, and any covenants provided
pursuant to Section 301(18), 901(2) or 901(7) for the benefit of the
Holders of such Securities, (2) the occurrence of any event specified
in Section 501(3) shall be deemed not to be or result in an Event of
Default, and (3) the occurrence of any event specified in Clause (C) of
the definition of "Default" set forth in Section 503 (with respect to
any of Sections 1006 through 1008, inclusive, and any such covenants
provided pursuant to Section 301(18), 901(2) or 901(7)) shall be deemed
not to be or result in a Default and (4) the provisions of Article
Fourteen shall cease to be effective, in each case with respect to such
Securities as provided in this Section on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter called
"Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section (to the
extent so specified, in the case of Clause (C) of the definition of
"Default" set forth in Section 503) or Article Fourteen, whether
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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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Article II
MISCELLANEOUS
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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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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:
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Name:
Title:
ATTEST:
BANKERS TRUST COMPANY, as Trustee
By:
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Name:
Title:
ATTEST:
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STATE OF ALABAMA )
COUNTY OF BIRMINGHAM ) ss.:
)
On the ____ day of _________, 19__, before me personally came
__________, to me known, who, being by me duly sworn, did depose and say that
s/he is ___________ of AmSouth Bancorporation, one of the corporations described
in and which executed the foregoing instrument; that s/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that s/he signed her/his name thereto by like authority.
[Notarial Seal]
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
)
On the ____ day of __________, 19__, before me personally came
___________ to me known, who, being by me duly sworn, did depose and say that
s/he is __________ of Bankers Trust Company, one of the corporations described
in and which executed the foregoing instrument; that s/he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that s/he signed her/his name thereto by like authority.
[Notarial Seal]
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