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AMSOUTH BANCORPORATION
TO
BANKERS TRUST COMPANY, TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
Dated as of March 1, 1999
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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 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:
"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, (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: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
Title: Executive Vice President
and Treasurer
ATTEST:
/s/ Xxxx X. Xxxxxx
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Assistant Secretary
BANKERS TRUST COMPANY, as Trustee
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
ATTEST:
/s/ Xxxxxx Xxxxxxxx
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STATE OF ALABAMA )
COUNTY OF BIRMINGHAM) ss.:
)
On the 25th day of February 25, 1999, before me personally came Xxxx X.
Xxxxxxxxx, 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/ Xxxxxxxx X. Xxxxxxx
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MY COMMISSION EXPIRES AUGUST 4, 0000
XXXXX XX XXX XXXX )
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/ Xxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Notary Public, State of New York
No. OISH5087362
Qualified in Westchester County
Commission Expires 11/3/99
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