-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, QbBwqutIXHcXwgA0YT1JJkALjGqXyHazjqhjzFnbjRIXPToc9Ib0QlmPxDdoKTPN 6fuYTvm1jIKdF+rqOSZzKQ== 0000891836-99-000134.txt : 19990302 0000891836-99-000134.hdr.sgml : 19990302 ACCESSION NUMBER: 0000891836-99-000134 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990224 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19990301 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMSOUTH BANCORPORATION CENTRAL INDEX KEY: 0000003133 STANDARD INDUSTRIAL CLASSIFICATION: STATE COMMERCIAL BANKS [6022] IRS NUMBER: 630591257 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-07476 FILM NUMBER: 99553141 BUSINESS ADDRESS: STREET 1: 1900 FIFTH AVENUE NORTH STREET 2: AMSOUTH SONAT TOWER CITY: BIRMINGHAM STATE: AL ZIP: 35203 BUSINESS PHONE: 2053207151 MAIL ADDRESS: STREET 1: 1400 AMSOUTH SONAT TOWER CITY: BRIMINGHAM STATE: AL ZIP: 35288 FORMER COMPANY: FORMER CONFORMED NAME: ALABAMA BANCORPORATION DATE OF NAME CHANGE: 19810527 FORMER COMPANY: FORMER CONFORMED NAME: FIRST BIRMINGHAM CORP DATE OF NAME CHANGE: 19741107 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------- 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) -1- 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 ----------- ------- 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. -2- 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. -3- 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 -4- EX-1 2 UNDERWRITING AGREEMENT 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 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. "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. ----------------- (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 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. -------------------- (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 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. ---------- 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. (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. ------------------------------------------------- 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, 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 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 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 & 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 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 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 "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 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 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 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 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 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. 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 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 ------------ 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+ EX-4.(A) 3 FIRST SUPPLEMENTAL INDENTURE - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 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 - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- 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 -2- 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 -3- directly or indirectly by reason of any reference elsewhere herein to any such Section or Article or by reason of any reference in any such Section or Article to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby. SECTION 1.8. Amendments to Section 1304 of Indenture. Section 1304 of the Indenture is hereby amended by (x) renumbering the existing paragraph (9) of such Section as paragraph (10) and (y) inserting a new paragraph (9) immediately following paragraph (8) thereof as follows: (9) At the time of such deposit, (A) no default in the payment of any principal of or premium or interest on any Senior Indebtedness shall have occurred and be continuing, (B) no event of default with respect to any Senior Debt shall have resulted in such Senior Indebtedness becoming, and continuing to be, due and payable prior to the date on which it would otherwise have become due and payable (unless payment of such Senior Indebtedness has been made or duly provided for), and (C) no other event of default with respect to any Senior Indebtedness shall have occurred and be continuing permitting (after notice or lapse of time or both) the holders of such Senior Indebtedness (or a trustee on behalf of such holders) to declare such Senior Indebtedness due and payable prior to the date on which it would otherwise have become due and payable. SECTION 1.9. Amendment to Section 1403 of Indenture. The first paragraph of Section 1403 of the Indenture is hereby amended by inserting the words "of such Series" following the word "Securities" in the proviso at the end of such paragraph. SECTION 1.10. Amendments to Section 1415 of Indenture. (a) Paragraph (a) of Section 1415 of the Indenture is hereby amended and restated as follows: (a) Subject to the provisions of this Section and to any provisions established or determined with respect to Securities of any series pursuant to Section 301, the Securities shall rank pari passu in right of payment with each other and with the Existing Subordinated Indebtedness. (b) Paragraph (d) of Section 1415 of the Indenture is hereby amended by deleting the words "Senior Indebtedness and" therein. -4- Article II MISCELLANEOUS ------------- SECTION 2.1. Defined Terms. For all purposes of this First Supplemental Indenture, except as otherwise stated herein, capitalized terms used but not defined in this First Supplemental Indenture shall have the respective meanings assigned to them in the Indenture. SECTION 2.2. Trustee's Rights, Duties and Immunities. All of the provisions of the Indenture with respect to the rights, duties and immunities of the Trustee shall be applicable in respect hereof as fully and with like effect as if set forth herein in full. SECTION 2.3. Application of Amendments. All amendments to the Indenture made hereby shall have effect only with respect to the Securities of any series created on or after the date hereof, and not with respect to the Securities of any series created prior to the date hereof. SECTION 2.4. Recitals. The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture. SECTION 2.5. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SECTION 2.6. Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. SECTION 2.7. Ratification and Confirmation. As amended and modified by this First Supplemental Indenture, the Indenture is in all respects ratified and confirmed and the Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument. -5- 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 - ------------------------------ -6- 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 -7- EX-4.(B) 4 GLOBAL SECURITY-6.125% SUBORDINATED NOTES DUE 2009 [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 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. -2- 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 -3- [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. "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 -2- 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 -3- 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. -4- -----END PRIVACY-ENHANCED MESSAGE-----