EXHIBIT 4.14
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FORM OF SECOND AMENDED AND RESTATED
TRUST AGREEMENT
among
BANCORPSOUTH, INC., as Depositor,
THE BANK OF NEW YORK,
as Property Trustee,
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of [ ]
BANCORPSOUTH CAPITAL TRUST I
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BANCORPSOUTH CAPITAL TRUST I
Certain Sections of this Trust Agreement relating to Sections 310 through 318 of
the Trust Indenture Act of 1939:
Trust Indenture Trust Agreement
Act Section Section
---------------- ---------------
ss. 310 (a)(1) 8.07
(a)(2) 8.07
(a)(3) 8.09
(a)(4) 2.07(a)(ii)
(b) 8.08
ss. 311 (a) 8.13
(b) 8.13
ss. 312 (a) 5.08
(b) 5.08
(c) 5.08
ss. 313 (a) 8.14(a)
(a)(4) 8.14(b)
(b) 8.14(b)
(c) 10.09
(d) 8.14(c)
ss. 314 (a) 8.15
(b) Not Applicable
(c)(1) 8.16
(c)(2) 8.16
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.01, 8.16
ss. 315 (a) 8.01(a), 8.03(a)
(b) 8.02, 10.09
(c) 8.01(a)
(d) 8.01, 8.03
(e) Not Applicable
ss. 316 (a) Not Applicable
(a)(1)(A) Not Applicable
(a)(1)(B) Not Applicable
(a)(2) Not Applicable
(b) 5.13
(c) 6.07
ss. 317 (a)(1) Not Applicable
(a)(2) Not Applicable
(b) 5.10
ss. 318 (a) 10.11
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Trust Agreement.
TABLE OF CONTENTS
ARTICLE I Defined Terms..........................................................................................4
SECTION 1.01. Definitions................................................................................4
ARTICLE II Continuation of the Trust............................................................................13
SECTION 2.01. Name......................................................................................13
SECTION 2.02. Office of the Delaware Trustee; Principal Place of Business...............................13
SECTION 2.03. Organizational Expenses...................................................................13
SECTION 2.04. Issuance of the Preferred Securities......................................................13
SECTION 2.05. Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debt Securities................................................14
SECTION 2.06. Trust Agreement...........................................................................14
SECTION 2.07. Authorization to Enter into Certain Transactions..........................................14
SECTION 2.08. Assets of Trust...........................................................................18
SECTION 2.09. Title to Trust Property...................................................................18
ARTICLE III Payment Account.....................................................................................18
SECTION 3.01. Payment Account...........................................................................18
ARTICLE IV Distributions; Redemption............................................................................19
SECTION 4.01. Distributions.............................................................................19
SECTION 4.02. Redemption................................................................................20
SECTION 4.03. Subordination of Common Securities........................................................21
SECTION 4.04. Payment Procedures........................................................................22
SECTION 4.05. Tax Returns and Reports...................................................................22
SECTION 4.06. Payment of Taxes; Duties, etc. of the Trust...............................................23
SECTION 4.07. Payments Under Indenture..................................................................23
ARTICLE V Trust Securities Certificates.........................................................................23
SECTION 5.01. Initial Ownership.........................................................................23
SECTION 5.02. Trust Securities Certificates.............................................................23
SECTION 5.03. Execution and Delivery of Trust Securities Certificates...................................24
SECTION 5.04. Global Preferred Security.................................................................24
SECTION 5.05. Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Preferred Securities Certificates;
Securities Act Legends.........................................................................25
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates........................26
SECTION 5.07. Persons Deemed Securityholders............................................................27
SECTION 5.08. Access to List of Securityholders' Names and Addresses....................................27
SECTION 5.09. Maintenance of Office or Agency; Transfer Agent...........................................27
SECTION 5.10. Appointment of Paying Agent...............................................................27
SECTION 5.11 Ownership of Common Securities by Depositor................................................28
SECTION 5.12. Notices to Clearing Agency................................................................28
SECTION 5.13. Rights of Securityholders.................................................................28
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ARTICLE VI Acts of Securityholders; Meetings; Voting............................................................30
SECTION 6.01. Limitations on Preferred Securityholder's Voting Rights...................................30
SECTION 6.02. Notice of Meetings........................................................................31
SECTION 6.03. Meetings of Securityholders...............................................................32
SECTION 6.04. Voting Rights.............................................................................32
SECTION 6.05. Proxies, etc..............................................................................32
SECTION 6.06. Securityholder Action by Written Consent..................................................32
SECTION 6.07. Record Date for Voting and Other Purposes.................................................32
SECTION 6.08. Acts of Securityholders...................................................................33
SECTION 6.09. Inspection of Records.....................................................................34
ARTICLE VII Representations and Warranties......................................................................34
SECTION 7.01 Representations and Warranties of the Property Trustee
and the Delaware Trustee.......................................................................34
SECTION 7.02. Representations and Warranties of Depositor...............................................35
ARTICLE VIII The Trustees.......................................................................................35
SECTION 8.01. Certain Duties and Responsibilities.......................................................35
SECTION 8.02. Events of Default Notices; Deferral of Interest Payment Notices...........................37
SECTION 8.03. Certain Rights of Property Trustee........................................................37
SECTION 8.04. Not Responsible for Recitals..............................................................39
SECTION 8.05. May Hold Securities.......................................................................39
SECTION 8.06. Compensation, Indemnity, Fees.............................................................39
SECTION 8.07. Corporate Property Trustee Required; Eligibility of
Trustees.......................................................................................41
SECTION 8.08. Conflicting Interests.....................................................................41
SECTION 8.09. Co-Trustees and Separate Trustee..........................................................41
SECTION 8.10. Resignation and Removal; Appointment of Successor.........................................43
SECTION 8.11. Acceptance of Appointment by Successor....................................................44
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business.......................................................................................45
SECTION 8.13. Preferential Collection of Claims Against Depositor or
Trust ......................................................................................45
SECTION 8.14. Reports by Property Trustee...............................................................46
SECTION 8.15. Reports to the Property Trustee...........................................................46
SECTION 8.16. Evidence of Compliance with Conditions Precedent..........................................47
SECTION 8.17. Number of Trustees........................................................................47
SECTION 8.18. Delegation of Power.......................................................................47
ARTICLE IX Dissolution, Liquidation and Merger..................................................................48
SECTION 9.01. Dissolution Upon Expiration Date; Termination Upon
Special Event..................................................................................48
SECTION 9.02 Early Termination.........................................................................48
SECTION 9.03. Termination...............................................................................48
SECTION 9.04. Liquidation...............................................................................48
SECTION 9.05. Mergers, Consolidations, Amalgamations or Replacements
of the Trust..................................................................................50
ARTICLE X Miscellaneous Provisions..............................................................................51
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SECTION 10.01. Limitation of Rights of Securityholders..................................................51
SECTION 10.02. Liability of the Depositor...............................................................51
SECTION 10.03. Amendment................................................................................51
SECTION 10.04. Separability.............................................................................53
SECTION 10.05. Governing Law............................................................................53
SECTION 10.06. Payments Due on Non-Business Day.........................................................53
SECTION 10.07. Successors...............................................................................53
SECTION 10.08. Headings.................................................................................53
SECTION 10.10. Agreement Not to Petition................................................................54
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture Act...................................54
SECTION 10.12. Acceptance of Terms of Trust Agreement, Guarantee Agreement
and Indenture..................................................................................55
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FORM OF SECOND AMENDED AND RESTATED TRUST AGREEMENT
This SECOND AMENDED AND RESTATED TRUST AGREEMENT, dated as of
[__________], among (i) BANCORPSOUTH, INC., a Mississippi corporation (including
any successors or assigns, the "Depositor"), (ii) THE BANK OF NEW YORK, a New
York banking corporation, as property trustee, (in such capacity, the "Property
Trustee" and, in its separate corporate capacity and not in its capacity as
Property Trustee, the "Bank"), (iii) THE BANK OF NEW YORK (Delaware), a Delaware
banking corporation, as Delaware trustee (the "Delaware Trustee"), (iv) ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, an individual, and L. ▇▇▇▇ ▇▇▇▇▇, Jr., an individual, each of
whose address is c/o BancorpSouth, Inc. (each an "Administrative Trustee" and
collectively the "Administrative Trustees") (the Property Trustee, the Delaware
Trustee and the Administrative Trustees are referred to collectively herein as
the "Trustees") and (v) the several Holders, as hereinafter defined.
W I T N E S S E T H :
WHEREAS the Depositor, the Administrative Trustees and Bankers Trust
(Delaware) (the "Former Delaware Trustee"), as trustee, duly declared and
established a business trust pursuant to the Delaware Business Trust Act by
entering into a certain Declaration of Trust, dated as of August 22, 1997 (the
"Initial Declaration"), and by the execution and filing by the Administrative
Trustees and the Former Delaware Trustee with the Secretary of State of the
State of Delaware (the "Secretary of State") of the Certificate of Trust, filed
on August 22, 1997;
WHEREAS the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees have heretofore duly continued the business trust
pursuant to the Delaware Business Trust Act by entering into a certain Trust
Agreement, dated as of October 31, 2001 (the "Original Trust Agreement"), which
amended and restated the Initial Declaration in its entirety, and by the
execution and filing by the Delaware Trustee, the Property Trustee and the
Administrative Trustees with the Secretary of State of the State of Delaware
(the "Secretary of State") of the Certificate of Trust, filed on October 31,
2001 (the "Certificate of Trust"), and attached as Exhibit A;
WHEREAS pursuant to the Original Trust Agreement, the Depositor
removed the Former Delaware Trustee as a trustee of the Trust and,
simultaneously therewith, appointed and substituted the Delaware Trustee as a
trustee of the Trust and appointed the Property Trustee as an additional
trustee of the Trust; and
WHEREAS the Depositor, the Delaware Trustee, the Property Trustee and
the Administrative Trustees desire to amend and restate the Original Trust
Agreement in its entirety as set forth herein to provide for, among other things
(i) the issuance and sale of the Common Securities by the Trust to the
Depositor, (ii) the issuance and sale of the Trust Preferred Securities (the
"Preferred Securities") by the Trust pursuant to the Underwriting Agreement and
(iii) the acquisition by the Trust from the Depositor of all of the right, title
and interest in the Junior Subordinated Debt Securities;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Securityholders, as hereinafter defined, hereby
amends and restates the Original Trust Agreement in its entirety and agrees as
follows:
ARTICLE I
Defined Terms
SECTION 1.01. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein that are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) unless the context otherwise requires, any reference
to an "Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Trust Agreement;
(d) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Trust Agreement as a whole
and not to any particular Article, Section or other subdivision; and
(e) all references to the date the Preferred Securities
were originally issued shall refer to the date the Initial Preferred
Securities were originally issued.
"Act" has the meaning specified in Section 6.08.
"Administrative Trustee" means each of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and L. ▇▇▇▇
▇▇▇▇▇, Jr., solely in such Person's capacity as Administrative Trustee of the
Trust continued hereunder and not in such Person's individual capacity, or such
Administrative Trustee's successor in interest in such capacity, or any
successor trustee appointed as herein provided.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Preferred Security or beneficial interest
therein, the rules and procedures of the depositary for such Preferred Security,
in each case to the extent applicable to such transaction and as in effect from
time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) the entry of a decree or order by a court having
jurisdiction in the premises adjudging such Person a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of such Person under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of such Person or of any substantial part of
its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
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(b) the institution by such Person of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or similar official) of such Person or
of any substantial part of its property or the making by it of an
assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated a bankrupt, or the taking of
corporate action by such Person in furtherance of any such action.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Depositor to have been duly adopted
by the Depositor's Board of Directors, or such committee of the Board of
Directors or officers of the Depositor to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Trustees.
"Business Day" means a day other than (a) a Saturday or Sunday, (b) a
day on which banking institutions in The City of New York are authorized or
required by law or executive order to remain closed or (c) a day on which the
Property Trustee's Corporate Trust Office or the Corporate Trust Office of the
Debenture Trustee is closed for business.
"Capital Treatment Event" has the meaning specified in Section 1.01 of
the Indenture.
"Certificate of Trust" has the meaning specified in the recitals to
this Trust Agreement.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934. DTC
shall be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" has the meaning specified in the Underwriting Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Securities" means the common securities of the Trust, each
representing a common, undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $25.00 and having the rights provided therefor in
this Trust Agreement,
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including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Corporate Trust Office" means the principal office of the Property
Trustee located in New York City which at the time of the execution of this
Trust Agreement is located at ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇; Attention of Corporate Trust Administration.
"Debenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Debenture Trustee" means The Bank of New York, a New York banking
corporation and any successor trustee appointed and accepted pursuant to the
Indenture.
"Definitive Preferred Securities Certificate" means Preferred
Securities Certificates issued in certificated, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. ▇.▇▇. 3801, et seq., as it may be amended from time to
time.
"Delaware Trustee" means the corporation identified as the "Delaware
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
trustee appointed as herein provided.
"Depositor" has the meaning specified in the preamble to this Trust
Agreement.
"Distribution Date" has the meaning specified in Section 4.01(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.01.
"DTC" means The Depository Trust Company.
"Early Termination Event" has the meaning specified in Section 9.02.
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of a Debenture Event of Default; or
(b) default by the Trust in the payment of any
Distribution when it becomes due and payable, and continuation of such
default for a period of 30 days; or
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(c) default by the Trust in the payment of any Redemption
Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Trustees in this
Trust Agreement (other than a covenant or warranty, a default in the
performance or breach of which is addressed in clause(b) or (c) above),
and continuation of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the
defaulting Trustee or Trustees by the Holders of at least 25% in
aggregate Liquidation Amount of the Outstanding Preferred Securities, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) the occurrence of a Bankruptcy Event with respect to
the Property Trustee and the failure by the Depositor to appoint a
successor Property Trustee within 60 days thereof.
"Exchange Act" means the Securities Exchange Act of 1934.
"Expiration Date" has the meaning specified in Section 9.01.
"Federal Reserve" means the Board of Governors of the Federal Reserve
System.
"Global Preferred Securities" means a beneficial interest in the
Preferred Securities, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 5.04.
"Global Preferred Securities Certificate" means a certificate
evidencing ownership of Global Preferred Securities, substantially in the form
attached as Exhibit B.
"Guarantee Agreement" means the Guarantee Agreement executed and
delivered by the Depositor and The Bank of New York, as trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the holders of the Trust Securities, as amended from time to
time.
"Holder" or "Securityholder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be a beneficial owner of such Trust Securities within the meaning
of the Delaware Business Trust Act; provided, however, that in determining
whether the Holders of the requisite amount of Preferred Securities have voted
on any matter provided for in this Trust Agreement, then for the purpose of any
such determination, so long as Definitive Preferred Securities Certificates have
not been issued, the term Securityholders or Holders as used herein shall refer
to the Owners.
"Indenture" means the Indenture, dated as of [ ], between the Depositor
and the Debenture Trustee, as trustee, (as amended or supplemented from time to
time) relating to the issuance of the Junior Subordinated Debt Securities.
"Investment Company Event" has the meaning specified in Section 1.01 of
the Indenture.
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"Junior Subordinated Debt Securities" means the aggregate principal
amount of the Depositor's Junior Subordinated Debt Securities due [ ], issued
pursuant to the Indenture.
"Junior Subordinated Debt Securities Redemption Date" means, with
respect to any Junior Subordinated Debt Securities to be redeemed under the
Indenture, the date fixed for redemption under the Indenture.
"Letter of Representations" means the agreement among the Trust, the
Property Trustee and DTC, as the initial Clearing Agency, dated as of the
Closing Date.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Like Amount" means (a) with respect to a redemption of Trust
Securities, Trust Securities having a Liquidation Amount equal to that portion
of the principal amount of Junior Subordinated Debt Securities to be
contemporaneously redeemed in accordance with the Indenture allocated to the
Trust Securities based upon their relative Liquidation Amounts and the proceeds
of which will be used to pay the Redemption Price of such Trust Securities, and
(b) with respect to a distribution of Junior Subordinated Debt Securities to
Holders in connection with a dissolution or liquidation of the Trust, Junior
Subordinated Debt Securities having a principal amount equal to the Liquidation
Amount of the Trust Securities of the Holder to whom such Junior Subordinated
Debt Securities are distributed.
"Liquidation Amount" means the stated amount of $25.00 per Trust
Security.
"Liquidation Date" means the date on which Junior Subordinated Debt
Securities are to be distributed to Holders of Trust Securities in connection
with a termination and liquidation of the Trust pursuant to Section 9.04(a).
"Liquidation Distribution" has the meaning specified in Section
9.04(d).
"1940 Act" means the Investment Company Act of 1940.
"Officers' Certificate" means a certificate signed by the Chairman and
Chief Executive Officer, President or a Vice President, and by the Treasurer, an
Associate Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary, of the Depositor, and delivered to the appropriate Trustee.
One of the officers signing an Officers' Certificate given pursuant to Section
8.16 shall be the principal executive, financial or accounting officer of the
Depositor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
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(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust or the Depositor, but not an employee of any thereof.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding," with respect to Preferred Securities, means, as of the
date of determination, all Preferred Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Preferred Securities theretofore canceled by the
Property Trustee or delivered to the Property Trustee for cancellation;
(b) Preferred Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Property Trustee or any Paying Agent for the benefit of the Holders of
such Preferred Securities; provided that if such Preferred Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Trust Agreement; and
(c) Preferred Securities which have been paid or in
exchange for or in lieu of which other Preferred Securities have been
executed and delivered pursuant to Sections 5.02, 5.04, 5.05, 5.11 and
5.13; provided, however, that in determining whether the Holders of the
requisite Liquidation Amount of the Outstanding Preferred Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Preferred Securities owned by the
Depositor, any Trustee or any Affiliate of the Depositor or any Trustee
shall be disregarded and deemed not to be Outstanding, except that (a)
in determining whether any Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or
waiver, only Preferred Securities that a Responsible Officer of such
Trustee actually knows to be so owned shall be so disregarded and (b)
the foregoing shall not apply at any time when all of the outstanding
Preferred Securities are owned by the Depositor, one or more of the
Trustees and/or any such Affiliate. Preferred Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Administrative Trustees
the pledgee's right so to act with respect to such Preferred Securities
and that the pledgee is not the Depositor or any Affiliate of the
Depositor.
"Owner" means each Person who is the beneficial owner of a Global
Preferred Security as reflected in the records of the Clearing Agency or, if a
Clearing Agency Participant is not the Owner, then as reflected in the records
of a Person maintaining an
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account with such Clearing Agency (directly or indirectly), in accordance with
the rules of such Clearing Agency.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.10 and shall initially be the Bank.
"Payment Account" means a segregated noninterest-bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Junior Subordinated Debt Securities will be held and from which
the Property Trustee shall make payments to the Securityholders in accordance
with Sections 4.01 and 4.02.
"Person" means any individual, corporation, partnership, joint venture,
trust, limited liability company or corporation, unincorporated organization or
government or any agency or political subdivision thereof.
"Preferred Securities" means each of the initial trust preferred
securities of the Trust to be issued on the date hereof each representing a
preferred, undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount of $25.00 per Preferred Security and having the rights
provided therefor in this Trust Agreement, including the right to receive
Distributions and a Liquidation Distribution as provided herein.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
B.
"Preferred Securityholder" means a Person in whose name a Preferred
Security or Preferred Securities is registered in the Securities Register; and
any such Person shall be deemed to be a beneficial owner within the meaning of
the Delaware Business Trust Act.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust continued hereunder and
not in its individual capacity, or its successor in interest in such capacity,
or any successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, the date fixed for such redemption by or pursuant to this Trust
Agreement, provided, however, that each Junior Subordinated Debt Securities
Redemption Date and the Stated Maturity of the Junior Subordinated Debt
Securities shall be a Redemption Date for a Like Amount of Trust Securities.
"Redemption Price" means, with respect to any Trust Security, the
Liquidation Amount of such Trust Security, plus accumulated and unpaid
Distributions to the Redemption Date, plus the related amount of the premium, if
any, paid by the Depositor upon the concurrent redemption of a Like Amount of
Junior Subordinated Debt Securities, allocated on a pro rata basis (based on
Liquidation Amounts) among the Trust Securities.
"Regulatory Authorities" means the Federal Reserve or any other state
or federal regulatory agency having jurisdiction over the Depositor.
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"Relevant Trustee" has the meaning specified in Section 8.10.
"Responsible Officer" means, when used with respect to the Property
Trustee or the Delaware Trustee, any officer assigned to the Corporate Trust
Office, including any vice president, assistant vice president, assistant
treasurer or any other officer to the Property Trustee customarily performing
functions similar to those performed by any of the above designated officers and
having direct responsibility for the administration for this Trust Agreement,
and also, with respect to a particular matter, any other officer, to whom such
matter is referred because of such officer's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Agreement.
"Securities Act" means the Securities Act of 1933.
"Secretary of State" has the meaning specified in the first recital of
this Trust Agreement.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.05.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Trust Securities is registered in the Securities Register; any such
Person shall be a beneficial owner within the meaning of the Delaware Business
Trust Act; provided, however, that in determining whether the Holders of the
requisite amount of Preferred Securities have voted on any matter provided for
in this Trust Agreement, then for the purpose of any such determination, so long
as Definitive Preferred Securities Certificates have not been issued, the term
Securityholders or Holders as used herein shall refer to the Owners.
"Special Event" means a Tax Event, a Capital Treatment Event or an
Investment Company Event.
"Stated Maturity" has the meaning specified in Section 1.01 of the
Indenture.
"Tax Event" has the meaning specified in Section 1.01 of the Indenture.
"Transfer Agent" means the Bank as set forth in the preamble to this
Trust Agreement.
"Trust" means BancorpSouth Capital Trust I
"Trust Agreement" means this Second Amended and Restated Trust
Agreement, as the same may be modified, amended or supplemented in accordance
with the applicable provisions hereof, including all exhibits hereto, including,
for all purposes of this Second Amended and Restated Trust Agreement, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this Second Amended and Restated Trust Agreement and any modification, amendment
or supplement of either, respectively.
"Trust Indenture Act" has the meaning specified in Section 1.01 of the
Indenture.
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"Trust Property" means (a) the Junior Subordinated Debt Securities, (b)
any cash or deposit in, or owing to, the Payment Account and (c) all proceeds
and rights in respect of the foregoing.
"Trust Securities Certificate" means any one of the Common Securities
Certificates or the Preferred Securities Certificates.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trustees" means, collectively, the Property Trustee, the Delaware
Trustee and the Administrative Trustees.
"Underwriters" means, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and the several underwriters
named in Schedule I to the Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
[ ], among the Trust, the Depositor and the Underwriters.
ARTICLE II
Continuation of the Trust
SECTION 2.01. Name. The Trust continued hereby shall be known as
"BancorpSouth Capital Trust I," as such name may be modified from time to time
by the Administrative Trustees following written notice to the Holders and the
other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued.
SECTION 2.02. Office of the Delaware Trustee; Principal Place of
Business. The address of the Delaware Trustee in the State of Delaware is The
Bank of New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Corporate Trust Administration, or such other address in the
State of Delaware as the Delaware Trustee may designate by written notice to the
Securityholders and the Depositor. The principal executive office of the Trust
is in care of BancorpSouth, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇;
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary.
SECTION 2.03. Organizational Expenses. The Depositor, as borrower
on the Junior Subordinated Debt Securities, shall pay all expenses of the Trust
as they arise or shall, upon request of any Trustee, promptly reimburse such
Trustee for any such expenses paid by such Trustee. The Depositor shall make no
claim upon the Trust Property for the payment of such expenses.
SECTION 2.04. Issuance of the Preferred Securities. The Preferred
Securities to be issued will be limited to $[ ]million aggregate Liquidation
Amount outstanding at any one time.
The Depositor and the Administrative Trustees, on behalf of
the Trust, and pursuant to the Original Trust Agreement, and the Underwriters
executed and delivered the Underwriting Agreement. Contemporaneously with the
execution and delivery of this
13
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute or cause to be executed in accordance with Section 5.02 and delivered to
the Underwriters, a Global Preferred Securities Certificate in book-entry form,
registered in the name of the nominee of the initial Clearing Agency, in an
aggregate amount of Preferred Securities having an aggregate Liquidation Amount
of $[ ] million against receipt of the aggregate purchase price of such
Preferred Securities equal to [ ]% of the Liquidation Amount multiplied by the
number of Preferred Securities being purchased which amount the Administrative
Trustee shall promptly deliver to the Property Trustee.
SECTION 2.05. Issuance of the Common Securities; Subscription and
Purchase of Junior Subordinated Debt Securities. Contemporaneously with the
execution and delivery of this Trust Agreement, an Administrative Trustee, on
behalf of the Trust, shall execute or cause to be executed in accordance with
Section 5.02(a) and delivered to the Depositor Common Securities Certificates,
registered in the name of the Depositor, in an aggregate amount of $[ ] Common
Securities having an aggregate Liquidation Amount of $[ ] against payment by the
Depositor of $[ ] which amount the Administrative Trustees shall promptly
deliver to the Property Trustee. Contemporaneously therewith, an Administrative
Trustee, on behalf of the Trust, shall subscribe to and purchase from the
Depositor Junior Subordinated Debt Securities, registered in the name of the
Trust and having an aggregate principal amount equal to $[ ], and, in
satisfaction of the purchase price for such Junior Subordinated Debt Securities,
the Property Trustee, on behalf of the Trust, shall deliver to the Depositor the
sum of $[ ].
SECTION 2.06. Trust Agreement. The exclusive purposes and functions
of the Trust are to (a) issue and sell Trust Securities, (b) use the proceeds
from the sale of Trust Securities to acquire the Junior Subordinated Debt
Securities, (c) receive payments to be made with respect to the Junior
Subordinated Debt Securities, and (d) engage in only those other activities
necessary, advisable or incidental thereto such as registering the transfer of
the Preferred Securities and complying with the terms of the Registration
Agreement. The Depositor hereby appoints the Trustees as trustees of the Trust,
to have all the rights, powers and duties to the extent set forth herein, and
the Trustees hereby accept such appointment. The Property Trustee hereby
declares that it will hold the Trust Property in trust upon and subject to the
conditions set forth herein for the benefit of the Trust and the
Securityholders. The Administrative Trustees shall have all rights, powers and
duties set forth herein and in accordance with applicable law with respect to
accomplishing the purposes of the Trust. The Delaware Trustee shall not be
entitled to exercise any powers, nor shall the Delaware Trustee have any of the
duties and responsibilities, of the Property Trustee or the Administrative
Trustees set forth herein. The Delaware Trustee shall be one of the Trustees of
the Trust for the sole and limited purpose of fulfilling the requirements of
Section 3807 of the Delaware Business Trust Act.
SECTION 2.07. Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in accordance with the
terms of this Trust Agreement. Subject to the limitations set forth in
paragraph(b) of this Section and in accordance with the following provisions(i)
and (ii), the Trustees shall have the authority to enter into all transactions
and agreements determined by the Trustees to be appropriate in exercising the
authority, express or implied, otherwise granted to the Trustees under this
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Trust Agreement, and to perform all acts in furtherance thereof, including
without limitation, the following:
(i) As among the Trustees, each Administrative Trustee
shall have the power and authority to act on behalf of the Trust with
respect to the following matters:
(A) the issuance and sale of the Trust
Securities;
(B) to cause the Trust to enter into, and to
execute, deliver and perform on behalf of the Trust, the
Underwriting Agreement, the Registration Agreement, the Letter
of Representations and such other agreements as may be
necessary or desirable in connection with the purposes and
function of the Trust;
(C) assisting in the registration of the
Preferred Securities under the Securities Act and under state
securities or blue sky laws, and the qualification of this
Trust Agreement as a trust indenture under the Trust Indenture
Act;
(D) assisting in the listing, if any, of the
Preferred Securities upon such securities exchange or
exchanges as shall be determined by the Depositor and the
registration of the Preferred Securities under the Exchange
Act, and the preparation and filing of all periodic and other
reports and other documents pursuant to the foregoing;
(E) the sending of notices (other than notices
of default) and other information regarding the Trust
Securities and the Junior Subordinated Debt Securities to the
Securityholders in accordance with this Trust Agreement;
(F) the appointment of a Paying Agent, Transfer
Agent and Securities Registrar in accordance with this Trust
Agreement;
(G) registering transfer of the Trust Securities
in accordance with this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs and liquidation of
the Trust and the preparation of the certificate of
cancellation with the Secretary of State of the State of
Delaware;
(I) unless otherwise determined by the
Depositor, the Property Trustee or the Administrative Trustees
or as otherwise required by the Delaware Business Trust Act or
the Trust Indenture Act, to execute on behalf of the Trust
(either acting alone or together with any or all of the
Administrative Trustees) any documents that the Administrative
Trustees have the power to execute pursuant to this Trust
Agreement; and
(J) the taking of any action incidental to the
foregoing as the Trustees may from time to time determine is
necessary or advisable to give
15
effect to the terms of this Trust Agreement for the benefit of
the Securityholders (without consideration of the effect of
any such action on any particular Securityholders).
(ii) As among the Trustees, the Property Trustee shall
have the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of the Junior Subordinated Debt
Securities;
(C) the collection of interest, principal and
any other payments made in respect of the Junior Subordinated
Debt Securities in the Payment Account;
(D) the distribution of amounts owed to the
Securityholders in respect of the Trust Securities;
(E) the exercise of all of the rights, powers
and privileges of a holder of the Junior Subordinated Debt
Securities;
(F) the sending of notices of default and other
information regarding the Trust Securities and the Junior
Subordinated Debt Securities to the Securityholders in
accordance with this Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of
the Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of the
State of Delaware;
(I) after an Event of Default, the taking of any
action incidental to the foregoing as is necessary or
advisable to give effect to the terms of this Trust Agreement
and protect and conserve the Trust Property for the benefit of
the Securityholders (without consideration of the effect of
any such action on any particular Securityholder); and
(J) except as otherwise provided in this Section
2.07(a)(ii), the Property Trustee shall have none of the
duties, liabilities, powers or the authority of the
Administrative Trustees set forth in Section 2.07(a)(i).
(b) So long as this Trust Agreement remains in effect,
the Trust (or the Trustees acting on behalf of the Trust) shall not undertake
any business, activities or transactions except as expressly provided herein or
contemplated hereby. In particular, the Trustees shall not (i) acquire any
investments or engage in any activities not authorized by this Trust Agreement,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
16
otherwise dispose of any of the Trust Property or interests therein, including
to Securityholders, except as expressly provided herein, (iii) intentionally
take any action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv) incur any
indebtedness for borrowed money or issue any other debt, (v) take or consent to
any action that would result in the placement of a Lien on any of the Trust
Property, (vi) invest any proceeds received by the Trust from holding the Junior
Subordinated Debt Securities, but shall distribute all such proceeds to Holders
pursuant to the terms of this Trust Agreement and of the Trust Securities, (vii)
acquire any assets other than the Trust Property, (viii) possess any power or
otherwise act in such a way as to vary the Trust Property, (ix) possess any
power or otherwise act in such a way as to vary the terms of the Trust
Securities in any way whatsoever (except to the extent expressly authorized in
this Trust Agreement or by the terms of the Trust Securities), (x) issue any
securities or other evidences of beneficial ownership of, or beneficial interest
in, the Trust other than the Trust Securities, or (xi) other than as provided in
this Trust Agreement or by the terms of the Trust Securities, (A) direct the
time, method and place of exercising any trust or power conferred upon the
Debenture Trustee with respect to the Junior Subordinated Debt Securities, (B)
waive any past default that is waivable under the Indenture, (C) exercise any
right to rescind or annul any declaration that the principal of all Junior
Subordinated Debt Securities shall be due and payable, or (D) consent to any
amendment, modification, or termination of the Indenture or the Junior
Subordinated Debt Securities where such consent shall be required unless the
Trust shall have received an Opinion of Counsel of a law firm experienced in
such matters to the effect that such amendment, modification or termination will
not cause more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the 1940 Act, the Trust will
not be classified as a grantor trust for United States federal income tax
purposes or the Junior Subordinated Debt Securities will not be classified as
indebtedness for such purposes. The Administrative Trustees shall defend all
claims and demands of all Persons at any time claiming any Lien on any of the
Trust Property adverse to the interest of the Trust or the Securityholders in
their capacity as Securityholders.
(c) In connection with the issue and sale of the Trust
Securities, the Depositor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following (and any
actions taken by the Depositor in furtherance of the following prior to the date
of this Trust Agreement are hereby ratified and confirmed in all respects):
(i) the preparation and filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on the appropriate form in relation to the Trust Securities,
including any amendments thereto;
(ii) the determination of the states in which to take
appropriate action to qualify or register for sale all or part of the
Trust Securities and the determination of any and all such acts, other
than actions which must be taken by or on behalf of the Trust, and the
advice to the Trustees of actions they must take on behalf of the
Trust, and the preparation for execution and filing of any documents to
be executed and filed by the Trust or on behalf of the Trust, as the
Depositor deems necessary or advisable in order to comply with the
applicable laws of any such states;
17
(iii) the preparation for filing by the Trust with the
Commission and the execution on behalf of the Trust of a registration
statement on Form 8-A relating to the registration of the Trust
Securities under Section 12(b) or 12(g) of the Exchange Act, including
any amendments thereto;
(iv) the negotiation of the terms of, and the execution
and delivery of, the Underwriting Agreement providing for the sale of
the Trust Securities; and
(v) the taking of any other actions necessary or
desirable to carry out any of the foregoing activities.
(d) Notwithstanding anything herein to the contrary, the
Administrative Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not (i) be deemed to
be an "investment company" required to be registered under the 1940 Act or (ii)
fail to be classified as a grantor trust for United States federal income tax
purposes and so that the Junior Subordinated Debt Securities will be treated as
indebtedness of the Depositor for United States federal income tax purposes. In
this connection, the Depositor and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the Certificate of Trust
or this Trust Agreement, that each of the Depositor and the Administrative
Trustees determines in their discretion to be necessary or desirable for such
purposes, as long as such action does not adversely affect in any material
respect the interests of the holders of the Trust Securities.
SECTION 2.08. Assets of Trust. The assets of the Trust shall
consist solely of the Trust Property.
SECTION 2.09. Title to Trust Property. Legal title to all Trust
Property shall be vested at all times in the Property Trustee (in its capacity
as such) and shall be held and administered by the Property Trustee for the
benefit of the Trust and the Securityholders in accordance with this Trust
Agreement.
ARTICLE III
Payment Account
SECTION 3.01. Payment Account. (a) On or prior to the Closing Date
the Property Trustee shall establish the Payment Account. The Property Trustee
and any agent of the Property Trustee shall have exclusive control and sole
right of withdrawal with respect to the Payment Account for the purpose of
making deposits in and withdrawals from the Payment Account in accordance with
this Trust Agreement. All moneys and other property deposited or held from time
to time in the Payment Account shall be held by the Property Trustee in the
Payment Account for the exclusive benefit of the Securityholders and for
distribution as herein provided, including (and subject to) any priority of
payments provided for herein or by applicable law.
(b) The Property Trustee shall deposit in the Payment
Account, promptly upon receipt, all payments of principal of or interest on, and
any other payments or proceeds with respect to, the Junior Subordinated Debt
Securities. Amounts held in the
18
Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE IV
Distributions; Redemption
SECTION 4.01. Distributions. (a) Distributions on the Trust
Securities shall be cumulative and will accumulate whether or not there are
funds of the Trust available for the payment of Distributions. Distributions
shall accrue from [ ], and, except in the event (and to the extent) that the
Depositor exercises its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, shall be payable
semi-annually in arrears on [ ] and [ ] of each year, commencing on [ ]. If any
date on which a Distribution is otherwise payable is not a Business Day, then
the payment of such Distribution shall be made on the next succeeding day that
is a Business Day (and without any interest or other payment in respect of any
such delay), in each case with the same force and effect as if made on such date
(each date on which distributions are payable in accordance with this Section
4.01(a), a "Distribution Date"). Accrued Distributions that are not paid on the
applicable Distribution Date will bear interest on the amount thereof (to the
extent permitted by law) at the rate per annum of [ ]% thereof, compounded
semi-annually from the relevant Distribution Date.
(b) The Trust Securities represent undivided beneficial
ownership interests in the Trust Property, and, assuming payments of interest on
the Junior Subordinated Debt Securities are made when due, Distributions on the
Trust Securities shall be payable at a rate of [ ]% per annum of the Liquidation
Amount of the Trust Securities. The amount of Distributions payable for any full
period shall be computed on the basis of a 360-day year of twelve 30-day months.
The amount of Distributions for any partial period shall be computed on the
basis of the number of days elapsed in a 360-day year of twelve 30-day months.
(c) So long as no Debenture Event of Default has occurred
and is continuing, the Depositor has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debt Securities at any time and
from time to time for a period not exceeding 10 consecutive semi-annual periods
(an "Extension Period"), provided that no Extension Period may extend beyond the
Stated Maturity of the Junior Subordinated Debt Securities. As a consequence of
any such deferral, semi-annual Distributions on the Trust Securities by the
Trust will also be deferred from the relevant payment date for such
Distributions, but not exceeding the interest rate then accruing on the Junior
Subordinated Debt Securities.
(d) Distributions on the Trust Securities shall be made
by the Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on-hand and
available in the Payment Account for the payment of such Distributions.
(e) Distributions on the Trust Securities with respect to
a Distribution Date shall be payable to the Holders of record as they appear on
the Securities Register for the Trust Securities on each [ ] and [ ].
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SECTION 4.02. Redemption. (a) On each Junior Subordinated Debt
Securities Redemption Date and on the Stated Maturity of the Junior Subordinated
Debt Securities, the Trust will be required to redeem a Like Amount of Trust
Securities at the applicable Redemption Price.
(b) Notice of redemption shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to each Holder of Trust Securities to
be redeemed, at such Holder's address appearing in the Security Register. All
notices of redemption shall identify the Trust Securities to be redeemed
(including "CUSIP" numbers) and shall state:
(i) the Redemption Date;
(ii) the applicable Redemption Price;
(iii) if less than all the Outstanding Trust Securities are
to be redeemed, the identification and the total Liquidation Amount of
the particular Trust Securities to be redeemed; and
(iv) that on the Redemption Date the Redemption Price will
become due and payable upon each such Trust Security to be redeemed and
that Distributions thereon will cease to accrue on and after said date.
The Trust in issuing the Trust Securities may use "CUSIP,"
and/or "private placement" numbers (if then generally in use), and, if so, the
Property Trustee shall indicate the "CUSIP" or "private placement" numbers of
the Trust Securities in notices or redemption and related materials as a
convenience to Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Trust Securities or as contained in any notice of redemption and related
material. The Depositor shall promptly notify the Property Trustee of any change
in such numbers.
(c) The Trust Securities redeemed on each Redemption Date
shall be redeemed at the applicable Redemption Price with the proceeds from the
contemporaneous redemption of Junior Subordinated Debt Securities. Redemptions
of the Trust Securities shall be made and the applicable Redemption Price shall
be payable on each Redemption Date only to the extent that the Trust has funds
then on hand and available in the Payment Account for the payment of such
Redemption Price.
(d) If the Property Trustee gives a notice of redemption
in respect of any Trust Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.02(c), the Property Trustee will, so
long as the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price and will give such Clearing Agency
irrevocable instructions and authority to pay the Redemption Price to the
holders thereof. With respect to Preferred Securities held in certificated form,
the Property Trustee, subject to Section 4.02(c), will irrevocably deposit with
the Paying Agent funds sufficient to pay the applicable Redemption Price and
will give the Paying Agent irrevocable instructions and authority to pay the
Redemption Price to the Holders thereof upon surrender of their
20
Preferred Securities Certificates. Notwithstanding the foregoing, Distributions
payable on or prior to the Redemption Date for any Trust Securities called for
redemption shall be payable to the Holders of such Trust Securities as they
appear on the Securities Register on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except the right of such Securityholders to receive the applicable Redemption
Price and any Distribution payable on or prior to the Redemption Date, but
without interest, and such Preferred Securities will cease to be outstanding. In
the event that any date on which any applicable Redemption Price is payable is
not a Business Day, then payment of the applicable Redemption Price payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case, with the same
force and effect as if made on such date. In the event that payment of the
applicable Redemption Price in respect of any Trust Securities called for
redemption is improperly withheld or refused and not paid either by the Trust or
by the Depositor pursuant to the Guarantee Agreement, Distributions on such
Trust Securities will continue to accrue, at the then applicable rate, from the
Redemption Date originally established by the Trust for such Trust Securities to
the date such applicable Redemption Price is actually paid, in which case the
actual payment date will be the date fixed for redemption for purposes of
calculating the applicable Redemption Price.
(e) Payment of the applicable Redemption Price on, and
any distributions of Junior Subordinated Debt Securities to Holders of, the
Trust Securities shall be made to the Holders thereof as they appear on the
Securities Register on the relevant record date, and, with respect to Trust
Securities held in certificated form, upon surrender of such certificated Trust
Securities to the Paying Agent.
(f) Subject to Section 4.03(a), if less than all the
Outstanding Trust Securities are to be redeemed on a Redemption Date, then the
aggregate Liquidation Amount of Trust Securities to be redeemed shall be
allocated on a pro rata basis (based on Liquidation Amounts) among the Trust
Securities. The particular Trust Securities to be redeemed shall be selected on
a pro rata basis (based upon Liquidation Amounts) not more than 60 days prior to
the Redemption Date by the Property Trustee from the Outstanding Trust
Securities not previously called for redemption, by such method as the Property
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to $[ ] or an integral multiple of $[ ] in
excess thereof) of the Liquidation Amount of Trust Securities of a denomination
larger than $[ ]. The Property Trustee shall promptly notify the Security
Registrar in writing of the Trust Securities selected for redemption and, in the
case of any Trust Securities selected for partial redemption, the Liquidation
Amount thereof to be redeemed. For all purposes of this Trust Agreement, unless
the context otherwise requires, all provisions relating to the redemption of
Trust Securities shall relate in the case of any Trust Securities redeemed or to
be redeemed only in part, to the portion of the Liquidation Amount of Trust
Securities that has been or is to be redeemed.
SECTION 4.03. Subordination of Common Securities. (a) Payment of
Distributions on, and the Redemption Price of the Trust Securities, as
applicable, shall be
21
made subject to Section 4.02(f), pro rata to the holders of the Trust Securities
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date any Debenture Event of Default
(or other event that, with notice or the passage of time or both, would become
such an Event of Default) or other Event of Default shall have occurred and be
continuing, no payment of any Distribution on, or Redemption Price of, any of
the Common Securities, and no other payment on account of the redemption,
liquidation or other acquisition of such Common Securities, shall be made unless
payment in full in cash of all accumulated and unpaid Distributions on all
outstanding Preferred Securities for all Distribution Dates occurring on or
prior thereto, or, in the case of payment of the applicable Redemption Price the
full amount of such Redemption Price on all outstanding Preferred Securities,
shall have been made or provided for, and all funds immediately available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions (including Additional Distributions, if applicable) on, or the
Redemption Price of, Preferred Securities then due and payable.
(b) In the case of the occurrence of any Event of Default
resulting from any Debenture Event of Default, the Holder of Common Securities
will be deemed to have waived any right to act with respect to any such Event of
Default under this Trust Agreement until the effect of all such Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Trust
Agreement with respect to the Preferred Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Preferred Securities and not on behalf of the Holder of the
Common Securities, and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
SECTION 4.04. Payment Procedures. In the event Definitive
Preferred Securities Certificates are issued, payments of Distributions in
respect of the Preferred Securities shall be made by check mailed to the address
of the Person entitled thereto at such address as shall appear on the Securities
Register. If the Preferred Securities are held by a Clearing Agency, such
Distributions shall be made to the Clearing Agency in immediately available
funds, which shall credit the relevant Persons' accounts at such Clearing Agency
on the applicable Distribution Dates. Payments in respect of the Common
Securities shall be made in such manner as shall be mutually agreed between the
Property Trustee and the Common Securityholder.
SECTION 4.05. Tax Returns and Reports. The Administrative Trustees
shall prepare (or cause to be prepared), at the Depositor's expense, and file
all United States federal, state and local tax and information returns and
reports required to be filed by or in respect of the Trust. In this regard, the
Administrative Trustees shall (a) prepare and file (or cause to be prepared and
filed) the appropriate Internal Revenue Service form required to be filed in
respect of the Trust in each taxable year of the Trust and (b) prepare and
furnish (or cause to be prepared and furnished) to each Securityholder the
appropriate Internal Revenue Service form required to be provided pursuant to
the form referenced in clause(a) hereof. The Administrative Trustees shall
provide the Depositor and the Property Trustee with a copy of all such returns
and reports promptly after such filing or furnishing. The Administrative
Trustees shall comply with United States federal withholding and backup
withholding tax laws and information reporting requirements with respect to any
payments to Securityholders.
22
SECTION 4.06. Payment of Taxes; Duties, etc. of the Trust.
Pursuant to Section 10.06 of the Indenture, the Depositor, as borrower on the
Junior Subordinated Debt Securities, has agreed to, and it shall, promptly pay
any taxes, duties or governmental charges of whatever nature (other than United
States withholding taxes) imposed on the Trust by the United States or any other
taxing authority.
SECTION 4.07. Payments Under Indenture. Any amount payable hereunder to
any Holder shall be reduced by the amount of any corresponding payment such
Holder (and any Owner with respect thereto) has directly received pursuant to
Section 5.08 of the Indenture.
ARTICLE V
Trust Securities Certificates
SECTION 5.01. Initial Ownership. Upon the formation of the Trust
and until the issuance of the Trust Securities, and at any time during which no
Trust Securities are outstanding, the Depositor shall be the sole beneficial
owner of the Trust.
SECTION 5.02. Trust Securities Certificates. (a) The Preferred
Securities Certificates shall be issued only in minimum denominations of $25.00
Liquidation Amount (which is equivalent to One Preferred Security) and integral
multiples of $[ ] in excess thereof, and the Common Securities Certificates
shall be issued in denominations of $25.00 Liquidation Amount and integral
multiples thereof. The Trust Securities Certificates shall be executed on behalf
of the Trust by the manual or facsimile signature of at least one Administrative
Trustee. Trust Securities Certificates bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be validly issued
and entitled to the benefits of this Trust Agreement, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
delivery of such Trust Securities Certificates or did not hold such offices at
the date of delivery of such Trust Securities Certificates. A transferee of a
Trust Securities Certificate shall become a Securityholder, and shall be
entitled to the rights and subject to the obligations of a Securityholder
hereunder, upon due registration of such Trust Securities Certificate in such
transferee's name pursuant to Sections 5.04, 5.05 and 5.06.
(b) Upon their original issuance, the Preferred
Securities shall be issued in the form of a Global Preferred Securities
Certificate registered in the name of Cede & Co. ("Cede & Co.") as DTC's nominee
and deposited with or on behalf of DTC for credit by DTC to the respective
accounts of the Owners thereof (or such other accounts as they may direct).
Except as set forth herein, record ownership of the Global Preferred Security
may be transferred, in whole or in part, only to another nominee of DTC or to a
successor of DTC or its nominee.
(c) A single Common Securities Certificate representing
the Common Securities shall be issued to the Depositor in the form of a
definitive Common Securities Certificate.
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SECTION 5.03. Execution and Delivery of Trust Securities
Certificates. At the Closing Date, the Administrative Trustees shall cause Trust
Securities Certificates, in an aggregate Liquidation Amount as provided in
Sections 2.04 and 2.05, to be executed on behalf of the Trust and delivered to
the Property Trustee and upon such delivery the Property Trustee shall
countersign such Trust Securities Certificates and deliver such Trust Securities
Certificates upon the written order of the Depositor, signed by its chairman of
the board and president, any executive vice president or any vice president,
treasurer or assistant treasurer or controller without further corporate action
by the Depositor, in authorized denominations.
SECTION 5.04. Global Preferred Security. (a) The Global Preferred
Security issued under this Trust Agreement shall be registered in the name of
Cede & Co. as nominee of the Clearing Agency and delivered to its custodian
therefor, and such Global Preferred Security shall constitute a single Preferred
Security for all purposes of this Trust Agreement.
(b) Notwithstanding any other provision in this Trust
Agreement, the Global Preferred Security may not be exchanged in whole or in
part for Preferred Securities registered, and no transfer of the Global
Preferred Security in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Preferred Security, Cede &
Co., or other nominee thereof unless (i) such Clearing Agency advises the
Property Trustee in writing that such Clearing Agency is no longer willing or
able to properly discharge its responsibilities as Clearing Agency with respect
to such Global Preferred Security, and the Depositor is unable to locate a
qualified successor, (ii) the Trust at its option advises DTC in writing that it
elects to terminate the book-entry system through the Clearing Agency, or (iii)
there shall have occurred and be continuing a Debenture Event of Default. In
addition, beneficial interests in a Global Preferred Security may be exchanged
by or on behalf of DTC for certificated Preferred Securities upon request by
DTC, but only upon at least 20 days prior written notice given to the Property
Trustee in accordance with the Applicable Procedures.
(c) The Clearing Agency or its nominee, as the registered
owner of the Global Preferred Security, shall be considered the Holder of the
Preferred Securities represented by the Global Preferred Security for all
purposes under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in the Global Preferred Security shall hold such interests
pursuant to the Applicable Procedures and, except as otherwise provided herein,
shall not be entitled to have any of the individual Preferred Securities
represented by the Global Preferred Security registered in their names, shall
not receive nor be entitled to receive physical delivery of any such Preferred
Securities in definitive form and shall not be considered the Holders thereof
under this Trust Agreement. Accordingly, any such owner's beneficial interest in
the Global Preferred Security shall he shown only on, and the transfer of such
interest shall be effected only through, records maintained by the Clearing
Agency or its nominee. The Securities Registrar and the Trustees shall be
entitled to deal with the Clearing Agency for all purposes of this Trust
Agreement relating to the Global Preferred Securities (including the payment of
the Liquidation Amount of and Distributions on the Global Preferred Securities
and the giving of instructions or directions to Owners of Global Preferred
Securities) as the sole Holder of Global Preferred Securities and shall have no
obligations to the Owners thereof. Neither
24
the Property Trustee nor the Securities Registrar shall have any liability in
respect of any transfers effected by the Clearing Agency.
(d) The rights of Owners of beneficial interests in the
Global Preferred Security shall be exercised only through the Clearing Agency
and shall be limited to those established by law and agreements between such
owners and the Clearing Agency. Neither the Clearing Agency nor its nominee will
consent or vote with respect to the Preferred Securities. Under its usual
procedures, the Clearing Agency or its nominee would mail an omnibus proxy to
the Trust as soon as possible after the relevant record date. The omnibus proxy
assigns the consenting or voting rights of the Clearing Agency or its nominee to
those Clearing Agency Participants, identified in a listing attached to such
omnibus proxy, to whose accounts the Preferred Securities are credited on such
record date.
SECTION 5.05. Registration of Transfer and Exchange Generally;
Certain Transfers and Exchanges; Preferred Securities Certificates; Securities
Act Legends. (a) The Property Trustee shall keep or cause to be kept at its
Corporate Trust Office a register or registers for the purpose of registering
Preferred Securities Certificates and Common Securities Certificates and
transfers and exchanges of Preferred Securities Certificates and Common
Securities Certificates in which the registrar and transfer agent with respect
to the Preferred Securities (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Preferred Securities Certificates and Common Securities Certificates (subject
to Section 5.11 in the case of Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates and Common
Securities Certificates as herein provided. Such register is herein sometimes
referred to as the "Securities Register." The Property Trustee is hereby
appointed "Securities Registrar" for the purpose of registering Preferred
Securities and transfers of Preferred Securities as herein provided. The
provisions of Sections 8.01, 8.03 and 8.06 hereunder shall apply to the Property
Trustee also in its role as Securities Registrar.
Upon surrender for registration of transfer of any Preferred
Security at the offices or agencies of the Property Trustee designated for that
purpose, the Administrative Trustees shall execute, and the Property Trustee
shall countersign and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations of like tenor and aggregate liquidation amount and bearing such
restrictive legends as may be required by this Trust Agreement.
At the option of the Holder, Preferred Securities may be
exchanged for other Preferred Securities of any authorized denominations, of
like tenor and aggregate Liquidation Amount and bearing such restrictive legends
as may be required by this Trust Agreement, upon surrender of the Preferred
Securities to be exchanged at such office or agency. Whenever any securities are
so surrendered for exchange, the Depositor shall execute and the Property
Trustee shall countersign and deliver the Preferred Securities that the Holder
making the exchange is entitled to receive.
All Preferred Securities issued upon any transfer or exchange
of Preferred Securities shall be the valid obligations of the Trust, entitled to
the same benefits under this Trust Agreement as the Preferred Securities
surrendered upon such transfer or exchange.
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Every Preferred Security presented or surrendered for transfer
or exchange shall (if so required by the Property Trustee) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Property Trustee and the Securities Registrar, duly executed by the Holder
thereof or such Holder's attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer
or exchange of Preferred Securities, but the Property Trustee or the Securities
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Preferred Securities.
Neither the Trust nor the Property Trustee shall be required,
pursuant to the provisions of this Section, (i) to issue, register the transfer
of or exchange any Preferred Security during a period beginning at the opening
of business 15 days before the day of mailing of a notice of redemption of
Preferred Securities pursuant to Article IV and ending at the close of business
on the day of such mailing of the notice of redemption, or (ii) to register the
transfer of or exchange any Preferred Security so selected for redemption in
whole or in part, except, in the case of any such Preferred Security to be
redeemed in part, any portion thereof not to be redeemed.
The Preferred Securities will be issued, and may be
transferred, only in blocks having a Liquidation Amount of not less than $25.00
and integral multiples thereof.
(b) Certain Transfers and Exchanges. Subject to Section
5.04(c), but notwithstanding any other provision of this Trust Agreement,
transfers and exchanges of Preferred Securities and beneficial interests in a
Global Preferred Security shall be made only in accordance with this Section
5.05(b) and Section 5.04(c).
(i) Non-Global Security to Non-Global Security. A
Preferred Security that is not a Global Preferred Security may be
transferred, in whole or in part, to a Person who takes delivery in the
form of another Preferred Security that is not a Global Security as
provided in Section 5.05(a).
(ii) Exchanges Between Global Preferred Security and
Non-Global Preferred Security. A beneficial interest in the Global
Preferred Security may be exchanged for a Preferred Security that is
not a Global Preferred Security as provided in Section 5.04.
(iii) Limitations Relating to Liquidation Amount.
Notwithstanding any other provision of this Trust Agreement and unless
otherwise specified as permitted by this Trust Agreement, Preferred
Securities or portions thereof may be transferred or exchanged only in
Liquidation Amounts of not less than $[ ].
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. Provided Definitive Preferred Securities Certificates are issued,
if (a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar and the
Administrative Trustees such security or indemnity as may be required
26
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Administrative Trustees, or any one of them, on behalf of the Trust shall
execute and make available for delivery, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Trust Securities Certificate, a new Trust
Securities Certificate of like class, tenor and denomination. In connection with
the issuance of any new Trust Securities Certificate under this Section, the
Administrative Trustees or the Securities Registrar may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in connection therewith. Any duplicate Trust Securities Certificate issued
pursuant to this Section shall constitute conclusive evidence of an undivided
beneficial interest in the assets of the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Trust Securities Certificate shall be found
at any time.
SECTION 5.07. Persons Deemed Securityholders. The Trustees or the
Securities Registrar shall treat the Person in whose name any Trust Securities
are issued as the owner of such Trust Securities for the purpose of receiving
Distributions and for all other purposes whatsoever, and neither the Trustees
nor the Securities Registrar shall be bound by any notice to the contrary.
SECTION 5.08. Access to List of Securityholders' Names and
Addresses. Each Owner of Trust Securities acknowledges that the Depositor, the
Property Trustee, the Delaware Trustee or the Administrative Trustees may from
time to time make reasonable use of information consisting of such Owner's name
and address, including the furnishing of a list of such names and addresses as
contemplated hereunder, and each Owner shall be deemed to have agreed not to
hold the Depositor, the Property Trustee or the Administrative Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
SECTION 5.09. Maintenance of Office or Agency; Transfer Agent. The
Administrative Trustees shall maintain an office or offices or agency or
agencies where Definitive Preferred Securities Certificates, if issued, may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Trustees in respect of the Trust Securities may be
served. The Administrative Trustees initially designate The Bank of New York, ▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ATTENTION: Corporate Trust
Administration, as its corporate trust office for such purposes. The
Administrative Trustees shall give prompt written notice to the Depositor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency. The Bank shall act as initial transfer agent for the
Trust Securities.
SECTION 5.10. Appointment of Paying Agent. The Paying Agent shall
make Distributions to Securityholders from the Payment Account and shall report
the amounts of such Distributions to the Property Trustee and the Administrative
Trustees. Any Paying Agent shall have the revocable power to withdraw funds from
the Payment Account for the purpose of making the Distributions referred to
above. The Administrative Trustees may revoke such power and remove any Paying
Agent if such Administrative Trustees determine in their sole discretion that
such Paying Agent shall have failed to perform its obligations under this Trust
Agreement in any material respect. The Paying Agent shall initially be the Bank,
and any co-paying agent chosen by the Bank, and acceptable to the Administrative
Trustees and the Depositor. Any Person acting as Paying Agent shall be
27
permitted to resign as Paying Agent upon 30 days written notice to the
Administrative Trustees, the Property Trustee and the Depositor. In the event
that the Bank shall no longer be the Paying Agent or a successor Paying Agent
shall resign or its authority to act be revoked, the Administrative Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Depositor to act as Paying Agent (which shall be a bank or trust company). The
Administrative Trustees shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Administrative Trustees to execute and
deliver to the Trustees an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Trustees that as Paying Agent, such
successor Paying Agent or additional Paying Agent will hold all sums, if any,
held by it for payment to the Securityholders in trust for the benefit of the
Securityholders entitled thereto until such sums shall be paid to such
Securityholders. The Paying Agent shall return all unclaimed funds to the
Property Trustee and upon removal of a Paying Agent such Paying Agent shall also
return all funds in its possession to the Property Trustee. The provisions of
Sections 8.01, 8.03 and 8.06 herein shall apply to the Bank also in its role as
Paying Agent, for so long as the Bank shall act as Paying Agent and, to the
extent applicable, to any other paying agent appointed hereunder. Any reference
in this Trust Agreement to the Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 5.11. Ownership of Common Securities by Depositor. The
Depositor shall acquire and retain beneficial and record ownership of the Common
Securities. To the fullest extent permitted by law, other than a transfer in
connection with a consolidation or merger of the Depositor into another
corporation, or any conveyance, transfer or lease by the Depositor of its
properties and assets substantially as an entirety to any Person, pursuant to
Section 8.01 of the Indenture, any attempted transfer of the Common Securities
shall be void. The Administrative Trustees shall cause each Common Securities
Certificate issued to the Depositor to contain a legend stating "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT AS PROVIDED IN THE TRUST AGREEMENT".
SECTION 5.12. Notices to Clearing Agency. To the extent that a
notice or other communication to the Owners is required under this Trust
Agreement, for so long as Preferred Securities are represented by a Global
Securities Certificate, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to give duplicates thereof to the Owners.
SECTION 5.13. Rights of Securityholders. (a) The legal title to the
Trust Property is vested exclusively in the Property Trustee (in its capacity as
such) in accordance with Section 2.09, and the Securityholders shall not have
any right or title therein other than the undivided beneficial ownership
interest in the assets of the Trust conferred by their Trust Securities and they
shall have no right to call for any partition or division of property, profits
or rights of the Trust except as described below. The Trust Securities shall be
personal property giving only the rights specifically set forth therein and in
this Trust Agreement. The Trust Securities shall have no preemptive or similar
rights and when issued and delivered to Securityholders against payment of the
purchase price therefor will be fully paid and nonassessable. The Holders, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
28
(b) For so long as any Preferred Securities remain
Outstanding, if, upon a Debenture Event of Default, the Debenture Trustee fails
or the holders of not less than 25% in principal amount of the outstanding
Junior Subordinated Debt Securities fail to declare the principal amount of all
of the Junior Subordinated Debt Securities to be immediately due and payable,
the Holders of at least 25% in Liquidation Amount of the Preferred Securities
then Outstanding shall have such right by a notice in writing to the Depositor
and the Debenture Trustee with a copy to the Property Trustee; and upon any such
declaration such principal amount of and the accrued interest on all of the
Junior Subordinated Debt Securities shall become immediately due and payable;
provided that the payment of principal and interest on such Junior Subordinated
Debt Securities shall remain subordinated to the extent provided in the
Indenture.
At any time after such a declaration of acceleration with
respect to the Junior Subordinated Debt Securities has been made and before a
judgment or decree for payment of the money due has been obtained by the
Debenture Trustee as provided in the Indenture, the holders of a majority in
principal amount of the outstanding Junior Subordinated Debt Securities, by
written notice to the Property Trustee, the Depositor and the Debenture Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Depositor has paid or deposited with the
Debenture Trustee a sum sufficient to pay
(A) all overdue installments of interest
(including any Additional Interest (as defined in the
Indenture)) on all of the Junior Subordinated Debt Securities,
(B) the principal of (and premium, if any, on)
any Junior Subordinated Debt Securities which have become due
otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Junior Subordinated
Debt Securities, and
(C) all sums paid or advanced by the Debenture
Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Debenture Trustee
and the Property Trustee, their agents and counsel; and
(ii) all Events of Default with respect to the Junior
Subordinated Debt Securities, other than the non-payment of the
principal of the Junior Subordinated Debt Securities which has become
due solely by such acceleration, have been cured or waived as provided
in Section 5.13 of the Indenture.
If the Property Trustee fails to annul any such declaration
and waive such default, the Holders of Preferred Securities
representing a majority in aggregate Liquidation Amount of all the
Outstanding Preferred Securities shall also have the right to rescind
and annul such declaration and its consequences by written notice to
the Depositor, the Property Trustee and the Debenture Trustee, subject
to the satisfaction of the conditions set forth in Clause(i) and (ii)
of this Section 5.13(b).
29
Should the holders of a majority in aggregate principal amount
of the outstanding Junior Subordinated Debt Securities fail to take such
actions, the Holders of a majority in aggregate Liquidation Amount of the
Preferred Securities may, on behalf of the Holders of all the Preferred
Securities, waive any past default under the Indenture, except a default in the
payment of principal or interest (unless such default has been cured and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee) or
a default in respect of a covenant or provision which under the Indenture cannot
be modified or amended without the consent of the holder of each outstanding
Junior Subordinated Debt Security. No such rescission shall affect any
subsequent default or impair any right consequent thereon.
Upon receipt by the Property Trustee of written notice
declaring such an acceleration, or rescission and annulment thereof, by Holders
of the Preferred Securities all or part of which is represented by Global
Preferred Securities, a record date shall be established for determining Holders
of Outstanding Preferred Securities entitled to join in such notice, which
record date shall be at the close of business on the day the Property Trustee
receives such notice. The Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to join in such notice,
whether or not such Holders remain Holders after such record date; provided
that, unless such declaration of acceleration, or rescission and annulment, as
the case may be, shall have become effective by virtue of the requisite
percentage having joined in such notice prior to the day which is 90 days after
such record date, such notice of declaration of acceleration, or rescission and
annulment, as the case may be, shall automatically and without further action by
any Holder be canceled and of no further effect. Nothing in this paragraph shall
prevent a Holder, or a proxy of a Holder, from giving, after expiration of such
90 day period, a new written notice of declaration of acceleration, or
rescission and annulment thereof, as the case may be, that is identical to a
written notice which has been canceled pursuant to the proviso to the preceding
sentence, in which event a new record date shall be established pursuant to the
provisions of this Section 5.13(b).
(c) For so long as any Preferred Securities remain
Outstanding, to the fullest extent permitted by law and subject to the terms of
this Trust Agreement and the Indenture, upon a Debenture Event of Default
specified in Section 5.01(1) or 5.01(2) of the Indenture, any Holder of
Preferred Securities shall have the right to institute a proceeding directly
against the Depositor, pursuant to Section 5.08 of the Indenture, for
enforcement of payment to such Holder of the principal amount of or interest
(including any Additional Interest) on Junior Subordinated Debt Securities
having a principal amount equal to the aggregate Liquidation Amount of the
Preferred Securities held by such Holder (a "Direct Action"). Except as set
forth in Sections 5.13(b) and 5.13(c) hereof, the Holders of Preferred
Securities shall have no right to exercise directly any right or remedy
available to the holders or, or in respect of, the Junior Subordinated Debt
Securities.
ARTICLE VI
Acts of Securityholders; Meetings; Voting
SECTION 6.01. Limitations on Preferred Securityholder's Voting
Rights. (a) Except as provided in this Trust Agreement and in the Indenture and
as otherwise required by law, no Holder of Preferred Securities shall have any
right to vote or in any manner
30
otherwise control the administration, operation and management of the Trust or
the obligations of the parties hereto, nor shall anything herein set forth, or
contained in the terms of the Trust Securities Certificates, be construed so as
to constitute the Preferred Securityholders from time to time as partners or
members of an association. Unless a Debenture Event of Default shall have
occurred and be continuing, any Trustee may be removed at any time by the vote
of the Common Securityholder. The right to vote to appoint, remove or replace
the Administrative Trustees is vested exclusively in the Depositor as the Holder
of the Common Securities.
(b) So long as any Junior Subordinated Debt Securities
are held by the Property Trustee, the Trustees shall not (i) direct the time,
method and place of conducting any proceeding for any remedy available to the
Debenture Trustee, or executing any trust or power conferred on the Property
Trustee with respect to such Junior Subordinated Debt Securities, (ii) waive any
past default which is waivable under Section 5.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Junior Subordinated Debt Securities shall be due and payable or (iv) consent
to any amendment, modification or termination of the Indenture or the Junior
Subordinated Debt Securities, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of at least a majority in
aggregate Liquidation Amount of all Outstanding Preferred Securities; provided,
however, that where a consent under the Indenture would require the consent of
each holder of Junior Subordinated Debt Securities affected thereby, no such
consent shall be given by the Property Trustee without the prior written consent
of each Holder of Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of Preferred
Securities, except by a subsequent vote of the Holders of Preferred Securities.
The Property Trustee shall notify all Holders of the Preferred Securities of any
notice of default received from the Debenture Trustee with respect to the Junior
Subordinated Debt Securities. In addition to obtaining the foregoing approvals
of the Holders of the Preferred Securities, prior to taking any of the foregoing
actions, the Trustees shall, at the expense of the Depositor, obtain an Opinion
of Counsel experienced in such matters to the effect that the Trust will not
fail to be classified as a grantor trust for United States federal income tax
purposes on account of such action.
(c) If any proposed amendment to the Trust Agreement
provides for, or the Trustees otherwise propose to effect, (i) any action that
would adversely affect in any material respect the interests, powers,
preferences or special rights of the Trust Securities, whether by way of
amendment to the Trust Agreement or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of this
Trust Agreement, then the Holders of Outstanding Trust Securities as a class
will be entitled to vote on such amendment or proposal.
SECTION 6.02. Notice of Meetings. Notice of all meetings of the
Securityholders, stating the time, place and purpose of the meeting, shall be
given by the Property Trustee pursuant to Section 10.09 to each Securityholder
of record, at his registered address, at least 15 days and not more than 90 days
before the meeting. At any such meeting, any business properly before the
meeting may be so considered whether or not stated in the notice of the meeting.
Any adjourned meeting may be held as adjourned without further notice.
31
SECTION 6.03. Meetings of Securityholders. No annual meeting of
Securityholders is required to be held. The Administrative Trustees, however,
shall call a meeting of Securityholders to vote on any matter upon the written
request of the Securityholders of record of 25% of the Securities (based upon
their Liquidation Amount) and the Administrative Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of Securityholders
to vote on any matters as to which Securityholders are entitled to vote.
Securityholders of record of 50% of the Outstanding Securities
(based upon their Liquidation Amount), present in person or represented by
proxy, shall constitute a quorum at any meeting of Securityholders.
If a quorum is present at a meeting, an affirmative vote by
the Securityholders of record present, in person or by proxy, holding more than
a majority of the Securities (based upon their Liquidation Amount) held by the
Securityholders of record present, either in person or by proxy, at such meeting
shall constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.
SECTION 6.04. Voting Rights. Securityholders shall be entitled to
one vote for each $25.00 of Liquidation Amount represented by their Outstanding
Trust Securities in respect of any matter as to which such Securityholders are
entitled to vote.
SECTION 6.05. Proxies, etc. At any meeting of Securityholders, any
Securityholder entitled to vote thereat may vote by proxy; provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Administrative Trustees, or with such other officer or agent of the
Trust as the Administrative Trustees may direct, for verification prior to the
time at which such vote shall be taken. Proxies may be solicited in the name of
the Property Trustee or one or more officers of the Property Trustee. Only
Securityholders of record shall be entitled to vote. When Trust Securities are
held jointly by several persons, any one of them may vote at any meeting in
person or by proxy in respect of such Securities, but if more than one of them
shall be present at such meeting in person or by proxy, and such joint owners or
their proxies so present disagree as to any vote to be cast, such vote shall not
be received in respect of such Securities. A proxy purporting to be executed by
or on behalf of a Securityholder shall be deemed valid unless challenged at or
prior to its exercise, and the burden of proving invalidity shall rest on the
challenger. No proxy shall be valid more than three years after its date of
execution.
SECTION 6.06. Securityholder Action by Written Consent. Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding a majority of all Outstanding Securities
(based upon their Liquidation Amount) entitled to vote in respect of such action
(or such larger proportion thereof as shall be required by any express provision
of this Trust Agreement) shall consent to the action in writing.
SECTION 6.07. Record Date for Voting and Other Purposes. For the
purposes of determining the Securityholders who are entitled to notice of and to
vote at any meeting or by written consent, or to participate in any Distribution
in respect of which a record date is not otherwise provided for in this Trust
Agreement, or for the purpose of any other
32
action, the Administrative Trustees may from time to time fix a date, not more
than 90 days prior to the date of any meeting of Securityholders or the payment
of a distribution or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.
SECTION 6.08. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
or Owners may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders or Owners in person
or by an agent duly appointed in writing; and, except as otherwise expressly
provided herein, such action shall become effective when such instrument or
instruments are delivered to an Administrative Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Securityholders or Owners signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Trust Agreement and (subject to Section 8.01) conclusive in favor of the
Trustees, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be provided by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which any Trustee receiving the same deems sufficient.
The ownership of Trust Securities shall be proved by the
Securities Registrar.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Securityholder of any Trust Security shall
bind every future Securityholder of the same Trust Security and the
Securityholder of every Trust Security issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustees or the Trust in reliance thereon,
whether or not notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled
hereunder to take any action hereunder with regard to any particular Trust
Security may do so with regard to all or any part of the Liquidation Amount of
such Trust Security or by one or more duly appointed agents each of which may do
so pursuant to such appointment with regard to all or any part of such
Liquidation Amount.
If any dispute shall arise between the Securityholders and the
Administrative Trustees or among such Securityholders or Trustees with respect
to the authenticity, validity or binding nature of any request, demand,
authorization, direction, consent, waiver or other Act of such Securityholder or
Trustee under this Article VI, then the determination of such matter by the
Property Trustee shall be conclusive with respect to such matter.
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A Holder may institute a legal proceeding directly against the
Depositor under the Guarantee Agreement to enforce its rights under the
Guarantee Agreement without first instituting a legal proceeding against the
Guarantee Trustee (as defined in the Guarantee Agreement), the Trust, any
Trustee or any person or entity.
SECTION 6.09. Inspection of Records. Upon reasonable notice to the
Administrative Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder's interest as a
Securityholder.
ARTICLE VII
Representations and Warranties
SECTION 7.01. Representations and Warranties of the Property
Trustee and the Delaware Trustee. The Property Trustee and the Delaware Trustee,
each severally on behalf of and as to itself, hereby represents and warrants for
the benefit of the Depositor and the Securityholders that:
(a) The Property Trustee is a banking corporation with
trust powers, duly organized, validly existing and in good standing under the
laws of New York, with trust power and authority to execute and deliver, and to
carry out and perform its obligations under the terms of this Declaration.
(b) The execution, delivery and performance by the
Property Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee; and the Declaration has
been duly executed and delivered by the Property Trustee, and constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles of equity and the
discretion of the court (regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(c) The execution, delivery and performance of the
Declaration by the Property Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee has not
knowingly created any liens or encumbrances on such Trust Securities.
(e) No consent, approval or authorization of, or
registration with or notice to, any New York State or federal banking authority
is required for the execution, delivery or performance by the Property Trustee,
of the Declaration (other than the filing of the Certificate of Trust).
(f) The Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
trust power and authority to
34
execute and deliver, and to carry out and perform its obligations under the
terms of, the Declaration.
(g) The execution, delivery and performance by the
Delaware Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Delaware Trustee; and the Declaration has
been duly executed and delivered by the Delaware Trustee, and constitutes a
legal, valid and binding obligation of the Delaware Trustee, enforceable against
it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' right generally and to general principles of equity and the
discretion of the court regardless of whether the enforcement of such remedies
is considered in a proceeding in equity or at law).
(h) The execution, delivery and performance or the
Declaration by the Delaware Trustee does not conflict with or constitute a
breach of the certificate of incorporation or by-laws of the Delaware Trustee.
(i) No consent, approval or authorization of, or
registration with or notice to, any state or federal banking authority is
required for the execution, delivery or performance by the Delaware Trustee, of
this Declaration (other than the filing of the Certificate of Trust).
(j) The Delaware Trustee is an entity which has its
principal place of business in the State of Delaware.
SECTION 7.02. Representations and Warranties of Depositor. The
Depositor hereby represents and warrants for the benefit of the Securityholders
that the Trust Securities Certificates issued at the Closing Date on behalf of
the Trust have been duly authorized and will have been duly and validly
executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement,
and the Securityholders will be, as of each such date, entitled to the benefits
of this Trust Agreement.
ARTICLE VIII
The Trustees
SECTION 8.01. Certain Duties and Responsibilities. (a) The duties
and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture Act;
provided, however, that the Property Trustee shall not be subject to the
provisions of the Trust Indenture Act until such time as this Trust Agreement
becomes qualified under the Trust Indenture Act upon the effectiveness of a
registration statement pursuant to the Registration Agreement. Notwithstanding
the foregoing, no provisions of this Trust Agreement shall require the Trustees
to expend or risk their own funds or otherwise incur any financial liability in
the performance of any of their duties hereunder, or in the exercise of any of
their rights or powers. Whether or not herein expressly so provided, every
provision of this Trust Agreement
35
relating to the conduct or affecting the liability of or affording protection to
the Trustees shall be subject to the provisions of this Article. Nothing in this
Trust Agreement shall be construed to release an Administrative Trustee from
liability for his own grossly negligent action, his own grossly negligent
failure to act, or his own willful misconduct. To the extent that, at law or in
equity, an Administrative Trustee has duties (including fiduciary duties) and
liabilities relating thereto to the Trust or to the Securityholders, such
Administrative Trustee shall not be liable to the Trust or to any Securityholder
for such Trustee's good faith reliance on the provisions of this Trust
Agreement. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Administrative Trustees otherwise
existing at law or in equity, are agreed by the Depositor and the
Securityholders to replace such other duties and liabilities of the
Administrative Trustees.
(b) All payments made by the Property Trustee or a Paying
Agent in respect of the Trust Securities shall be made only from the revenue and
proceeds from the Trust Property and only to the extent that there shall be
sufficient revenue or proceeds from the Trust Property to enable the Property
Trustee or a Paying Agent to make payments in accordance with the terms hereof.
Each Securityholder, by its acceptance of a Trust Security, agrees that it will
look solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in respect
of any Trust Security or for any other liability in respect of any Trust
Security. This Section 8.01(b) does not limit the liability of the Trustees
expressly set forth elsewhere in this Trust Agreement or, in the case of the
Property Trustee, in the Trust Indenture Act, if applicable.
(c) No provision of this Trust Agreement shall be
construed to relieve the Property Trustee from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(i) the Property Trustee shall not be liable for any
error of judgment made in good faith by an authorized officer of the
Property Trustee, unless it shall be proved that the Property Trustee
was negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
majority in Liquidation Amount of the Trust Securities relating to the
time, method and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power
conferred upon the Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Junior
Subordinated Debt Securities and the Payment Account shall be to deal
with such Property in a similar manner as the Property Trustee deals
with similar property for its own account, subject to the projections
and limitations on liability afforded to the Property Trustee under
this Trust Agreement and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
in writing with the Depositor; and money held by the Property Trustee
need not be segregated from other funds held by it except in
36
relation to the Payment Account maintained by the Property Trustee
pursuant to Section 3.01 and except to the extent otherwise required by
law; and
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor.
SECTION 8.02. Events of Default Notices; Deferral of Interest
Payment Notices. Within five Business Days after the occurrence of any Event of
Default actually known to a Responsible Officer of the Property Trustee, the
Property Trustee shall transmit, in the manner and to the extent provided in
Section 10.09, notice of such Event of Default to the Securityholders, the
Administrative Trustees and the Depositor, unless such Event of Default shall
have been cured or waived. The Depositor, and the Administrative Trustees are
required to file annually with the Property Trustee a certificate as to whether
or not they are in compliance with all the conditions and covenants applicable
to them under the Declaration.
Within five Business Days after the receipt of notice of the
Depositor's exercise of its right to defer the payment of interest on the Junior
Subordinated Debt Securities pursuant to the Indenture, the Administrative
Trustee shall transmit, in the manner and to the extent provided in Section
10.09, notice of such exercise to the Securityholders and the Property Trustee,
unless such exercise shall have been revoked.
SECTION 8.03. Certain Rights of Property Trustee. Subject to the
provisions of Section 8.01:
(a) the Property Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a Holder
or transferee, certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, appraisal, bond,
debenture, note, other evidence of indebtedness or other paper or document
(whether in its original or facsimile form) believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) if (i) in performing its duties under this Trust
Agreement the Property Trustee is required to decide between alternative courses
of action or (ii) in construing any of the provisions of this Trust Agreement
the Property Trustee finds the same ambiguous or inconsistent with any other
provisions contained herein (iii) the Property Trustee is unsure of the
application of any Provision of this Trust Agreement, then, except as to any
matter as to which the Securityholders are entitled to vote under the terms of
this Trust Agreement, the Property Trustee shall deliver a notice to the
Depositor requesting written instructions of the Depositor as to the course of
action to be taken and the Property Trustee shall take such action, or refrain
from taking such action, as the Property Trustee shall be instructed in writing
to take, or to refrain from taking, by the Depositor; provided, however, that if
the Property Trustee does not receive such instructions of the Depositor within
ten Business Days after it has delivered such notice, or such reasonably shorter
period of time set forth in such notice (which to the extent practicable shall
not be less than two Business Days), it may, but shall be under no duty to, take
or refrain from taking such action not inconsistent
37
with this Trust Agreement as it shall deem advisable, in which event the
Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustee contemplated by this Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Trust
Agreement, the Property Trustee shall deem it desirable that a matter be
established before undertaking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be promptly
delivered by the Depositor or the Administrative Trustees;
(e) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel of its
selection (which counsel may be counsel to the Depositor or any of its
Affiliates, and may include any of its employees) and the advice of such counsel
shall be full and complete authorization and protection in respect of any action
taken suffered or omitted by it hereunder in good faith and in reliance thereon
and in accordance with such advice, such counsel may be counsel to the Depositor
or any of its Affiliates, and may include any of its employees; the Property
Trustee shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement at the
request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, unless requested in writing to do so by one or more
Securityholders, but the Property Trustee may make such further inquiry or
investigation into such facts or matters as it may see fit at the expense of
the Depositor and shall incur no liability of any kind by reason of such
inquiry and investigation;
(i) the Property Trustee may execute any of its trusts or
powers hereunder or perform any of its duties hereunder either directly or by or
through its agents or attorneys, and the Property Trustee shall not be
responsible for any misconduct or negligence on the part of or for the
supervision of any such agent or attorney appointed by it with due care
hereunder;
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(j) whenever in the administration of this Trust
Agreement the Property Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other action
hereunder, the Property Trustee (i) may request instructions from the Holders of
the Trust Securities which instructions may only be given by the Holders of the
same proportion in Liquidation Amount of the Trust Securities as would be
entitled to direct the Property Trustee under the terms of the Trust Securities
in respect of such remedy, right or action, (ii) may refrain from enforcing such
remedy or right or taking such other action until such instructions are
received, and (iii) shall be fully protected in acting in accordance with
instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement;
(l) when the Property Trustee incurs expenses or renders
services in connection with a Bankruptcy Event, such expenses (including the
fees and expenses of its counsel) and the compensation for such services are
intended to constitute expenses of administration under any bankruptcy law or
law relating to creditors rights generally; and
(m) the Property Trustee shall not be charged with
knowledge or an Event of Default unless a Responsible Officer of the Property
Trustee obtains actual knowledge of such event or the Property Trustee receives
written notice of such event from Securityholders holding at least 25%, of the
Outstanding Trust Securities (based upon Liquidation Amount).
No provision of this Trust Agreement shall be deemed to impose
any duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 8.04. Not Responsible for Recitals. The recitals contained
herein and in the Trust Securities Certificates shall be taken as the statements
of Trust, and the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use or application by
the Depositor of the proceeds of the Junior Subordinated Debt Securities.
SECTION 8.05. May Hold Securities. Except as provided in the
definition of the term "Outstanding" in Article I, any Trustee or any other
agent of any Trustee or the Trust, in its individual or any other capacity, may
become the owner or pledgee of Trust Securities and, subject to Sections 8.08
and 8.13, may otherwise deal with the Trust with the same rights it would if it
were not a Trustee or such other agent.
SECTION 8.06. Compensation, Indemnity, Fees. Pursuant to Section
10.06 of the Indenture, the Depositor, as borrower on the Junior Subordinated
Debt Securities, agrees:
39
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder as agreed upon from
time to time in writing with the Depositor (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses, disbursements
and advances incurred or made by the Trustees in accordance with any provision
of this Trust Agreement (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by its own
negligence or willful misconduct;
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Trustee, (ii) any Affiliate of any Trustee,
(iii) any officer, director, shareholder, employee, representative or agent of
any Trustee, and (iv) any employee or agent of the Trust or its Affiliates (each
referred to herein as an "Indemnified Person"), from and against any loss,
damage, liability, tax, penalty, expense, action, suit or claim of any kind or
nature whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Trust Agreement, except
that no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person determined to have
been caused by its own negligence or willful misconduct with respect to such
acts or omissions; and
(d) to the fullest extent permitted by applicable law, to
advance expenses (including legal fees) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding, from time to time,
prior to the final disposition of such claim, demand action, suit or proceeding
upon receipt by the Depositor of (i) a written affirmation by or on behalf of
the Indemnified Person of its or his good faith belief that it or he has met the
standard of conduct set forth in this Section 8.06 and (ii) an undertaking by or
on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in the preceding subsection.
The provisions of this Section 8.06 shall survive the
termination of this Trust Agreement or the earlier resignation or removal of any
Trustee.
No Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.06.
The Depositor and any Trustee (in the case of the Property
Trustee, subject to Section 8.08 hereof) may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and none of the
Trust, the Holders, the Depositor or any such Trustee shall have any rights by
virtue of this Trust Agreement in and to such independent ventures or the income
or profits derived therefrom, and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. Neither the Depositor, nor any Trustee, shall be obligated to present
any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and the Depositor or any Trustee shall have the right to take for its
own account (individually or as a partner or fiduciary) or to recommend to
others any such particular
40
investment or other opportunity. Any Trustee may engage or be interested in any
financial or other transaction with the Depositor or any Affiliate of the
Depositor, or may act as depository for, trustee or agent for, or act on any
committee or body of holders of, securities or other obligations of the
Depositor or its Affiliates.
SECTION 8.07. Corporate Property Trustee Required; Eligibility of
Trustees. (a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
a national or state chartered bank and eligible pursuant to the Trust Indenture
Act to act as such and has a combined capital and surplus of at least $50
million. If any such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Property Trustee with respect to the Trust Securities shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article; provided, however, that the Property Trustee need not qualify under the
Trust Indenture Act until such time as this Trust Agreement is qualified under
the Trust Indenture Act.
(b) There shall at all times be one or more
Administrative Trustees hereunder. Each Administrative Trustee shall be either a
natural person who is at least 21 years of age or a legal entity that shall act
through one or more persons authorized to bind that entity.
(c) There shall at all times be a Delaware Trustee. The
Delaware Trustee shall either be (i) a natural person who is at least 21 years
of age and a resident of the State of Delaware or (ii) a legal entity with its
principal place of business in the State of Delaware and that otherwise meets
the requirements of applicable Delaware law that shall act through one or more
persons authorized to bind such entity.
SECTION 8.08. Conflicting Interests. If the Property Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Property Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Trust Agreement.
SECTION 8.09. Co-Trustees and Separate Trustee. Unless an Event of
Default shall have occurred and be continuing, at any time or times, for the
purpose of meeting the legal requirements of the Trust Indenture Act or of any
jurisdiction in which any part of the Trust Property may at the time be located,
the Depositor and the Administrative Trustees, by agreed action of the majority
of such Trustees, shall have power to appoint, and upon the written request of
the Administrative Trustees, the Depositor shall for such purpose join with the
Administrative Trustees in the execution, delivery, and performance of all
instruments and agreements necessary or proper to appoint, one or more Persons
approved
41
by the Property Trustee either to act as co-trustee, jointly with the Property
Trustee, of all or any part of such Trust Property, or to the extent required by
law to act as separate trustee of any such property, in either case with such
powers as may be provided in the instrument of appointment, and to vest in such
Person or Persons in the capacity aforesaid, any property, title, right or power
deemed necessary or desirable, subject to the other provisions of this Section.
If the Depositor does not join in such appointment within 15 days after the
receipt by it of a request so to do, or in case a Debenture Event of Default has
occurred and is continuing, the Property Trustee alone shall have power to make
such appointment. Any co-trustee or separate trustee appointed pursuant to this
Section shall either be (i) a natural person who is at least 21 years of age and
a resident of the United States or (ii) a legal entity with its principal place
of business in the United States that shall act through one or more persons
authorized to bind such entity.
Should any written instrument from the Depositor be required
by any co-trustee or separate trustee so appointed for more fully confirming to
such co-trustee or separate trustee such property, title, right or power, any
and all such instruments shall, on request, be executed, acknowledged and
delivered by the Depositor.
Every co-trustee or separate trustee shall, to the extent
permitted by law, but to such extent only, be appointed subject to the following
terms, namely:
(a) The Trust Securities shall be executed and delivered
and all rights, powers, duties, and obligations hereunder in respect of the
custody of securities, cash and other personal property held by, or required to
be deposited or pledged with, the Trustees specified hereunder, shall be
exercised, solely by such Trustees and not by such co-trustee or separate
trustee.
(b) The rights, powers, duties, and obligations hereby
conferred or imposed upon the Property Trustee in respect of any property
covered by such appointment shall be conferred or imposed upon and exercised or
performed by the Property Trustee or by the Property Trustee and such co-trustee
or separate trustee jointly, as shall be provided in the instrument appointing
such co-trustee or separate trustee, except to the extent that under any law of
any jurisdiction in which any particular act is to be performed, the Property
Trustee shall be incompetent or unqualified to perform such act, in which event
such rights, powers, duties and obligations shall be exercised and performed by
such co-trustee or separate trustee.
(c) The Property Trustee at any time, by an instrument in
writing executed by it, with the written concurrence of the Depositor, may
accept the resignation of or remove any co-trustee or separate trustee appointed
under this Section, and, in case a Debenture Event of Default has occurred and
is continuing, the Property Trustee shall have power to accept the resignation
of, or remove, any such co-trustee or separate trustee without the concurrence
of the Depositor. Upon the written request of the Property Trustee, the
Depositor shall join with the Property Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section.
42
(d) No co-trustee or separate trustee hereunder shall be
personally liable by reason of any act or omission of the Property Trustee or
any other trustee hereunder.
(e) The Property Trustee shall not be required to
supervise any co-trustee or separate trustee nor shall it be liable by reason of
any act of a co-trustee or separate trustee or any employees or agents of a
co-trustee or separate trustee.
(f) Any Act of Holders delivered to the Property Trustee
shall be deemed to have been delivered to each such co-trustee and separate
trustee.
SECTION 8.10. Resignation and Removal; Appointment of Successor. No
resignation or removal of any Trustee (the "Relevant Trustee") and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 8.11.
Subject to the immediately preceding paragraph, a Relevant
Trustee may resign at any time by giving written notice thereof to the
Securityholders. If the instrument of acceptance by the successor Trustee
required by Section 8.11 shall not have been delivered to the Relevant Trustee
within 30 days after the giving of such notice of resignation or removal, the
Relevant Trustee may petition, at the expense of the Trust, any court of
competent jurisdiction for the appointment of a successor Relevant Trustee.
Unless a Debenture Event of Default shall have occurred and be
continuing, any Trustee may be removed at any time by Act of the Common
Securityholder. If a Debenture Event of Default shall have occurred and be
continuing, the Property Trustee or the Delaware Trustee, or both of them, may
be removed at such time by Act of the Holders of a majority in Liquidation
Amount of the Outstanding Preferred Securities, delivered to the Relevant
Trustee (in its individual capacity and on behalf of the Trust). An
Administrative Trustee may be removed by Act of the Common Securityholder at any
time and only the Common Securityholder shall have the right to remove any
Administrative Trustee.
If any Trustee shall resign, be removed or become incapable of
acting as Trustee, or if a vacancy shall occur in the office of any Trustee for
any cause, at a time when no Debenture Event of Default shall have occurred and
be continuing, the Common Securityholder, by Act of the Common Securityholder
delivered to the retiring Trustee, shall promptly appoint a successor Trustee or
Trustees and the retiring Trustee shall comply with the applicable requirements
of Section 8.11. If the Property Trustee or the Delaware Trustee shall resign,
be removed or become incapable of continuing to act as the Property Trustee or
the Delaware Trustee, as the case may be, at a time when a Debenture Event of
Default shall have occurred and be continuing, the Preferred Securityholders, by
Act of the Preferred Securityholders of a majority in Liquidation Amount of the
Preferred Securities then Outstanding delivered to the retiring Relevant
Trustee, shall promptly appoint a successor Relevant Trustee or Trustees, and
such successor Trustee shall comply with the applicable requirements of Section
8.11. If an Administrative Trustee shall resign, be removed or become incapable
of acting as Administrative Trustee, at a time when a Debenture Event of Default
shall have occurred and be continuing, the Common Securityholder, by Act of the
Common Securityholder delivered to the Administrative
43
Trustee, shall promptly appoint a successor Administrative Trustee or
Administrative Trustees and such successor Administrative Trustee or Trustees
shall comply with the applicable requirements of Section 8.11. If no successor
Relevant Trustee shall have been so appointed by the Common Securityholder or
the Preferred Securityholders and accepted appointment in the manner required by
Section 8.11, any Securityholder who has been a Securityholder of Trust
Securities for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Relevant Trustee.
The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.08 and shall give notice to
the Depositor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Administrative Trustee or a Delaware Trustee
who is a natural person dies or becomes, in the opinion of the Depositor,
incompetent or incapacitated, or, in the case of an Administrative Trustee,
ceases to be an employee of the Depositor, the vacancy created by such death,
incompetence or incapacity may be filled by (a) the unanimous act of remaining
Administrative Trustees if there are at least two of them or (b) otherwise by
the Depositor (with the successor in each case being a Person who satisfies the
eligibility requirement for Administrative Trustees or Delaware Trustee, as the
case may be, set forth in Section 8.07).
SECTION 8.11. Acceptance of Appointment by Successor. In the case
of the appointment hereunder of a successor Trustee, such successor Trustee so
appointed shall execute, acknowledge and deliver to the Trust and to the
retiring Trustee any instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with the rights, powers, trusts and duties of the retiring Trustee, but,
on the request of the Depositor or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and if the Property Trustee is the resigning Trustee the
Property Trustee shall duly assign, transfer and deliver to the successor
Property Trustee all Trust Property and money held by such retiring Property
Trustee hereunder.
In case of the appointment hereunder of a successor Relevant
Trustee, the retiring Relevant Trustee and each successor Relevant Trustee with
respect to the Trust Securities shall execute and deliver an amendment hereto
wherein each successor Relevant Trustee shall accept such appointment and which
(a) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Relevant Trustee all the rights,
powers, trusts and duties of the retiring Relevant Trustee with respect to the
Trust Securities and the Trust and (b) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the Trust by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees if the same trust and that each such Relevant
Trustee shall be Trustee of a trust or trusts
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hereunder separate and apart from any trust or trusts hereunder administered by
any other such Relevant Trustee; and upon the execution and delivery of such
amendment the resignation or removal of the retiring Relevant Trustee shall
become effective to the extent provided therein and each such successor Relevant
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Relevant Trustee; but,
on request of the Trust or any successor Relevant Trustee such retiring Relevant
Trustee shall duly assign, transfer and deliver to such successor Relevant
Trustee all Trust Property, all proceeds thereof and money held by such retiring
Relevant Trustee hereunder with respect to the Trust Securities and the Trust.
Upon request of any such successor Relevant Trustee, the Trust
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Relevant Trustee all such rights, powers and
trusts referred to in the first or second preceding paragraph, as the case may
be.
No successor Relevant Trustee shall accept its appointment
unless at the time of such acceptance such successor Relevant Trustee shall be
qualified and eligible under this Article.
Upon the appointment and acceptance of a successor to the
Delaware Trustee, such successor Delaware Trustee shall file a certificate of
amendment with the Secretary of State identifying the new identity and principal
place of business or residency of such successor Delaware Trustee in the State
of Delaware.
SECTION 8.12. Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee, the Delaware Trustee or
any Administrative Trustee that is not a natural person may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Relevant Trustee
shall be a party, or any Person succeeding to all or substantially all the
corporate trust business of such Relevant Trustee, shall be the successor of
such Relevant Trustee hereunder, provided such Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
SECTION 8.13. Preferential Collection of Claims Against Depositor
or Trust. In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust or any other obligor upon the
Trust Securities or the property of the Trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Trust Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Trust Securities and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Property Trustee (including any
claim for the reasonable compensation, expenses,
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disbursements and advances of the Property Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute to same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and counsel, and any other amounts due the Property Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or compensation
affecting the Trust Securities or the rights of any Holder thereof or to
authorize the Property Trustee to vote in respect of the claim of any Holder in
any such proceeding.
SECTION 8.14. Reports by Property Trustee. Upon qualification of
this Trust Agreement under the Trust Indenture Act,
(a) Not later than the last calendar day in February of
each year commencing with the last calendar day in February of [ ], the Property
Trustee shall transmit to all Securityholders in accordance with Section 10.09,
and to the Depositor, a brief report dated as of the prior December 31 with
respect to:
(i) its eligibility under Section 8.07 or, in lieu
thereof, if to the best of its knowledge it has continued to be
eligible under said Section, a written statement to such effect; and
(ii) any change in the property and funds in its
possession as Property Trustee since the date of its last report and
any action taken by the Property Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Trust Securities.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
(c) A copy of each such report shall, at the time of such
transmission to the Holders, be filed with the Commission and with the
Depositor.
SECTION 8.15. Reports to the Property Trustee. The Depositor and
the Administrative Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as required by Section 314 of
the Trust Indenture Act (if any) and the compliance certificate required by
Section 314(a) of the Trust Indenture Act
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in the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 8.16. Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Administrative Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.17. Number of Trustees. (a) The number of Trustees shall
be four; provided that the Holder of all of the Common Securities by written
instrument may increase or decrease the number of Administrative Trustees. The
Property Trustee and the Delaware Trustee may be the same Person, in which case
the number of Trustees shall be three.
(b) If a Trustee ceases to hold office for any reason and
the number of Administrative Trustees is not reduced pursuant to Section
8.17(a), or if the number of Trustees is increased pursuant to Section 8.17(a),
a vacancy shall occur. The vacancy shall be filed with a Trustee appointed in
accordance with Section 8.10.
(c) The death, resignation, retirement, removal,
bankruptcy, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of
Administrative Trustee shall occur, until such vacancy is filled by the
appointment of an Administrative Trustee in accordance with Section 8.10, the
Administrative Trustees in office, regardless of their number (and
notwithstanding any other Provision of this Agreement), shall have all the
powers granted to the Administrative Trustees and shall discharge all the duties
imposed upon the Administrative Trustees by this Trust Agreement.
SECTION 8.18. Delegation of Power. (a) Any Administrative Trustee
may, by power of attorney consistent with applicable law, delegate to any other
natural person over the age of 21 his or her power for the purpose of executing
any documents contemplated in Section 2.07(a), including any registration
statement or amendment thereto filed with the Commission, or making any other
governmental filing; and
(b) The Administrative Trustee shall have power to
delegate from time to time to such of their number or to the Depositor the doing
of such things and the execution of such instruments either in the name of the
Trust or the names of the Administrative Trustees or otherwise as the
Administrative Trustees may deem expedient, to the extent such delegation is not
prohibited by applicable law or contrary to the provisions of this Trust
Agreement, as set forth herein.
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ARTICLE IX
Dissolution, Liquidation and Merger
SECTION 9.01. Dissolution Upon Expiration Date; Termination Upon
Special Event. Unless earlier dissolved, the Trust shall automatically dissolve
on [ ] (the "Expiration Date"), following the distribution of the Trust Property
in accordance with Section 9.04.
SECTION 9.02. Early Termination. The first to occur of any of the
following events is an "Early Termination Event" upon the occurrence of which
the Trust shall be dissolved:
(a) the occurrence of a Bankruptcy Event in respect of,
or the dissolution or liquidation of, the Depositor or the Holder of the Common
Securities;
(b) the written direction to the Property Trustee from
the Depositor, as borrower with respect to the Junior Subordinated Debt
Securities, at any time (which direction is optional and wholly within the
discretion of the Depositor subject to receipt of prior approval of the
Regulatory Authorities if then required under applicable capital guidelines or
policies of the Regulatory Authorities (including upon the occurrence and
continuation of a Special Event in respect of the Trust)) to dissolve the Trust
and, after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, distribute a Like Amount of the Junior Subordinated Debt
Securities to Securityholders;
(c) the redemption of all of the Trust Securities in
connection with the redemption of all the Junior Subordinated Debt Securities
(including upon the occurrence and continuation of a Special Event pursuant to
Section 11.07 of the Indenture); and
(d) the entry of an order for dissolution of the Trust by
a court of competent jurisdiction.
SECTION 9.03. Termination. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the payment of
any expenses owed by the Trust, (b) the distribution by the Property Trustee to
Securityholders upon the liquidation of the Trust pursuant to Section 9.04, or
upon the redemption of all of the Trust Securities pursuant to Section 4.02, of
all amounts required to be distributed hereunder upon the final payment of the
Trust Securities, and (c) the discharge of all administrative duties of the
Administrative Trustees, including the performance of any tax reporting
obligations with respect to the Trust or the Securityholders.
Upon completion of the winding up of the affairs of the Trust,
the Property Trustee shall terminate the Trust by filing a certificate of
cancellation with the Secretary of State in accordance with Section 2.07 of this
Trust Agreement.
SECTION 9.04. Liquidation. (a) If an Early Termination Event
specified in clause(a), (b) or (d) of Section 9.02 occurs or upon the Expiration
Date, the Trust shall be liquidated by the Trustees as expeditiously as the
Trustees determine to be possible by
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distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to each Securityholder a Like Amount of Junior
Subordinated Debt Securities, subject to Section 9.04(d). Notice of liquidation
shall be given by the Property Trustee by first-class mail, postage prepaid,
mailed not later than 30 nor more than 90 days prior to the Liquidation Date to
each Holder at such Holder's address appearing in the Securities Register. All
notices of liquidation shall:
(i) state the Liquidation Date (which in the case of any
liquidation following the occurrence of a Special Event shall not be
more than 90 days following such occurrence);
(ii) state that from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent a Like Amount of Junior Subordinated Debt
Securities; and
(iii) provide such information with respect to the
mechanics by which Holders may exchange Trust Securities Certificates
for Junior Subordinated Debt Securities, or if Section 9.04(d) applies
receive a Liquidation Distribution, as the Administrative Trustees or
the Property Trustee shall deem appropriate.
(b) Except where Section 9.02(c) or 9.04(d) applies, in
order to effect the liquidation of the Trust and distribution of the Junior
Subordinated Debt Securities to Securityholders, the Property Trustee shall
establish a record date for such distribution (which shall be not more than 45
days prior to the Liquidation Date) and, either itself acting as exchange agent
or through the appointment of a separate exchange agent, shall establish such
procedures as it shall deem appropriate to effect the distribution of Junior
Subordinated Debt Securities in exchange for the Outstanding Trust Securities
Certificates.
(c) Except where Section 9.02(c) or 9.04(d) applies,
after the Liquidation Date, (i) the Trust Securities will no longer be deemed to
be Outstanding, (ii) certificates representing a Like Amount of Junior
Subordinated Debt Securities will be issued to Holders, upon surrender of such
Trust Securities Certificates to the Administrative Trustees or their agent for
exchange, (iii) any Trust Securities Certificates not so surrendered for
exchange will be deemed to represent a Like Amount of Junior Subordinated Debt
Securities accruing interest at the rate provided for in the Junior Subordinated
Debt Securities from the last Distribution Date on which a Distribution was made
on such Trust Securities Certificates until such Trust Securities Certificates
are so surrendered (or until such Trust Securities Certificates are so
surrendered, no payments of interest or principal will be made to the Holders of
Trust Securities Certificates with respect to such Junior Subordinated Debt
Securities) and (iv) all rights of Securityholders holding Trust Securities will
cease, except the right of such Securityholders to receive Junior Subordinated
Debt Securities upon surrender of Trust Securities Certificates.
(d) In the event that, notwithstanding the other
provisions of this Section 9.04, whether because of an order for dissolution
entered by a court of competent jurisdiction or otherwise, distribution of the
Junior Subordinated Debt Securities in the manner provided herein is determined
by the Property Trustee not to be practical, the Trust Property shall be
liquidated, and the Trust shall be dissolved, wound-up or
49
terminated, by the Property Trustee in such manner as the Property Trustee
determines. In such event, on the date of the dissolution, winding-up or other
termination of the Trust, Securityholders will be entitled to receive out of the
assets of the Trust available for distribution to Securityholders after
satisfaction of liabilities to creditors of the Trust as provided by applicable
law, an amount equal to the aggregate of Liquidation Amount plus accumulated and
unpaid Distributions thereon to the date of payment (such amount being the
"Liquidation Distribution"). If, upon any such dissolution, winding up or
termination, the Liquidation Distribution can be paid only in part because the
Trust has insufficient assets available to pay in full the aggregate Liquidation
Distribution, then, subject to the next succeeding sentence, the amounts payable
by the Trust on the Trust Securities shall be paid on a pro rata basis (based
upon Liquidation Amounts). Holders of the Common Securities will be entitled to
receive Liquidation Distributions upon any such dissolution, winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Debenture Event of Default (or an event that, with
notice or the passage of time, or both, would become such a Debenture Event of
Default) has occurred and is continuing, the Preferred Securities shall have a
priority over the Common Securities with respect to any such Liquidation
Distribution, and no payments shall be made with respect to the Common
Securities until Holders of Preferred Securities have been paid in full. Any
such determination and liquidation by the Property Trustee shall be conclusive
upon the Securityholders and the Property Trustee shall have no liability in
connection therewith.
SECTION 9.05. Mergers, Consolidations, Amalgamations or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease all or substantially
all of its properties and assets substantially as an entirety to any Person,
except pursuant to Section 9.04 and this Section 9.05. At the request of the
Depositor, with the consent of the Administrative Trustees and without the
consent of the Holders of the Preferred Securities, the Property Trustee or the
Delaware Trustee, the Trust may merge with or into, consolidate, amalgamate, or
be replaced by or convey, transfer or lease all or substantially all of its
properties and assets substantially as an entirety to a trust organized as such
under the laws of any State; provided, however, that (i) such successor entity
either (a) expressly assumes all of the obligations of the Trust with respect to
the Trust Securities or (b) substitutes for the Trust Securities other
securities having substantially the same terms as the Trust Securities (the
"Successor Securities") so long as the Successor Securities rank the same as the
Trust Securities rank in priority with respect to Distributions and payments
upon liquidation, redemption and otherwise, (ii) the Depositor expressly
appoints a trustee of such successor entity possessing the same powers and
duties as the Property Trustee as the holder of the Junior Subordinated Debt
Securities, (iii) the Successor Securities (if Preferred Securities) are listed
or traded, or any Successor Securities will be listed or traded upon
notification of issuance, on any national securities exchange or other
organization on which the Preferred Securities are then listed or traded, if
any, (iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Trust Securities (including any Successor
Securities) or, if so rated, the Junior Subordinated Debt Securities, to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Trust Securities (including any Successor Securities) in any
material respect, (vi) such successor entity has a purpose substantially
identical and limited to that of the Trust, (vii) prior to such merger,
50
consolidation, amalgamation, replacement, conveyance, transfer or lease, the
Depositor has received an Opinion of Counsel to the effect that (a) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the holders of the
Trust Securities (including any Successor Securities) in any material respect,
and (b) following such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor such successor entity will
be required to register as an investment company under the 1940 Act and (viii)
the Depositor or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the extent provided
by the Guarantee Agreement. Notwithstanding the foregoing, the Trust shall not,
except with the consent of holders of 100% in Liquidation Amount of the Trust
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an entirety
to any other entity or permit any other Person to consolidate, amalgamate, merge
with or into, or replace it if such consolidation, amalgamation, merger,
replacement, conveyance, transfer or lease would cause the Trust or the
successor entity to be classified as other than a grantor trust for United
States federal income tax purposes.
ARTICLE X
Miscellaneous Provisions
SECTION 10.01. Limitation of Rights of Securityholders. The death,
incapacity, liquidation, dissolution, termination or bankruptcy of any Person
having an interest, beneficial or otherwise, in Trust Securities shall not
operate to terminate this Trust Agreement nor annul, dissolve or terminate the
Trust, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person, to claim an accounting, take any action or bring
any proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.02. Liability of the Depositor. The Depositor, as
borrower with respect to the Junior Subordinated Debt Securities, shall be
liable for all the debts and obligations of the Trust (other than with respect
to payments of principal, interest, or premium, if any, on the Trust Securities)
to the extent not satisfied out of the Trust's assets.
SECTION 10.03. Amendment. (a) This Trust Agreement may be amended
from time to time by the Property Trustee, the Administrative Trustees and the
Depositor, without the consent of any Securityholders (i) to cure any ambiguity,
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Trust Agreement, which shall not be inconsistent
with the other provisions of this Trust Agreement; or (ii) to modify, eliminate
or add to any provisions of this Trust Agreement to such extent as shall be
necessary to ensure that the Trust will be classified for United States federal
income tax purposes as a grantor trust at all times that any Trust Securities
are Outstanding or to ensure that the Trust will not be required to register as
an investment company under the 1940 Act; provided, however, that in the case of
clause(i) , such action shall not adversely affect in any material respect the
interests of any
51
Securityholder, and any such amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.03(c) hereof, any
provision of this Trust Agreement may be amended by the Trustees and the
Depositor with (i) the consent of Securityholders representing not less than a
majority (based upon Liquidation Amounts) of the Trust Securities then
Outstanding and (ii) receipt by the Trustees of an Opinion of Counsel to the
effect that such amendment or the exercise of any power granted to the Trustees
in accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the Trust's
exemption from status of an investment company under the 1940 Act.
(c) In addition to and notwithstanding any other
provision in this Trust Agreement, without the consent of each affected
Securityholder (such consent being obtained in accordance with Section 6.03 or
6.08 hereof), this Trust Agreement may not be amended to (i) change the amount
or timing of any Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in respect of the
Trust Securities as of a specified date or (ii) restrict the right of a
Securityholder to institute suit for the enforcement of any such payment on or
after such date. Notwithstanding any other provision herein, without the
unanimous consent of the Securityholders (such consent being obtained in
accordance with Section 6.03 or 6.08 hereof), this paragraph(c) of this Section
10.03 may not be amended.
(d) Notwithstanding any other provisions of this Trust
Agreement, no Trustee shall enter into or consent to any amendment to this Trust
Agreement which would cause the Trust to fail or cease to qualify for the
exemption from status of an investment company under the 1940 Act or fail or
cease to be classified as a grantor trust for United States federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to
the contrary, without the consent of the Depositor this Trust Agreement may not
be amended in a manner which imposes any additional obligation on the Depositor.
(f) Notwithstanding any other provision of this Trust
Agreement, no amendment to this Trust Agreement may be made if, as a result of
such amendment, it would cause the Trust to fail to be classified as a grantor
trust for United States federal income tax purposes.
(g) In the event that any amendment to this Trust
Agreement is made, the Administrative Trustees shall promptly provide to the
Depositor a copy of such amendment.
(h) Neither the Property Trustee nor the Delaware Trustee
shall be required to enter into any amendment to this Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement or would
otherwise expose the Property Trustee to any liability or be contrary to
applicable law. The Property Trustee shall be entitled to receive an Opinion of
Counsel and an Officers' Certificate stating that any amendment to this Trust
Agreement is in compliance with this Trust Agreement.
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(i) The Property Trustee shall provide to the Depositor
copies of any amendments to this Trust Agreement which would necessitate an
amendment to the Certificate of Trust to be filed with the Secretary of State.
SECTION 10.04. Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.05. Governing Law. This Trust Agreement and the rights
and obligations of each of the Securityholders, the Trust and the Trustees with
respect to this Trust Agreement and the Trust Securities shall be construed in
accordance with and governed by the laws of the State of Delaware without regard
to its conflict of laws principles. The provisions of Sections 3540 and 3561 of
Title 12 of the Delaware Code shall not apply to this Trust.
SECTION 10.06. Payments Due on Non-Business Day. If the date fixed
for any payment on any Trust Security shall be a day that is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day that is a Business Day (except as otherwise provided in Section
4.02(d)), with the same force and effect as though made on the date fixed for
such payment, and no interest shall accrue thereon for the period after such
date.
SECTION 10.07. Successors. This Trust Agreement shall be binding
upon and shall inure to the benefit of any successor to the Depositor, the Trust
or the Relevant Trustee, including any successor by operation of law. Except in
connection with a consolidation, merger or sale involving the Depositor that is
permitted under Article VI of the Indenture and pursuant to which the assignee
agrees in writing to perform the Depositor's obligations hereunder, the
Depositor shall not assign its obligations hereunder.
SECTION 10.08. Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.09. Reports, Notices and Demands. Any report, notice,
demand or other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder or the
Depositor may be given or served in writing by deposit thereof, first class
postage prepaid, in the United States mail, hand delivery or facsimile
transmission, in each case, addressed, (a) in the case of a Preferred
Securityholder, to such Preferred Securityholder as such Securityholder's name
and address may appear on the Securities Register, and (b) in the case of the
Common Securityholder or the Depositor, to BancorpSouth, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Secretary,
facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy (which shall not constitute notice)
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ PLLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇. Any
notice to Preferred Securityholders may also be given to such owners as have,
within two years preceding the giving of such notice, filed their names and
addresses with the Property Trustee for that purpose. Such notice, demand or
other communication to or upon a Securityholder shall be deemed to have been
sufficiently given or made, for all purposes, upon hand delivery, mailing or
transmission.
53
Any notice, demand or other communication which by any
provision of this Trust Agreement is required or permitted to be given or served
to or upon the Trust, the Property Trustee, the Delaware Trustee or the
Administrative Trustees shall be given in writing addressed (until another
address is published by the Trust) as follows: (a) with respect to the Property
Trustee to The Bank of New York, ▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: [ ]; (b) with respect to the Delaware Trustee to The Bank of
New York (Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration; and (c) with respect to the
Administrative Trustees, to them at the address above for notices to the
Depositor, marked "Attention: Office of the Secretary". Such notice, demand or
other communication to or upon the Trust or the Property Trustee shall be deemed
to have been sufficiently given or made only upon actual receipt of the writing
by the Trust or the Property Trustee.
SECTION 10.10. Agreement Not to Petition. Each of the Trustees and
the Depositor agree for the benefit of the Securityholders that, until at least
one year and one day after the Trust has been terminated in accordance with
Article IX, they shall not file, or join in the filing of, a petition against
the Trust under any bankruptcy, insolvency, reorganization or other similar law
(including, without limitation, the United States Bankruptcy Code)
(collectively, "Bankruptcy Laws") or otherwise join in the commencement of any
proceeding against the Trust under any Bankruptcy Laws. In the event the
Depositor takes action in violation of this Section 10.10, the Property Trustee
agrees, for the benefit of Securityholders, that at the expense of the
Depositor, it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such petition by the Depositor against the Trust
or the commencement of such action and raise the defense that the Depositor has
agreed in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as counsel for the Trustee or the
Trust may assert. The provisions of this Section 10.10 shall survive the
termination of this Trust Agreement.
SECTION 10.11. Trust Indenture Act; Conflict with Trust Indenture
Act. (a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in this
Trust Agreement by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Trust Agreement
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be deemed to apply to this
Trust Agreement as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Trust Agreement shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
54
SECTION 10.12. Acceptance of Terms of Trust Agreement, Guarantee
Agreement and Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY
INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR ANY BENEFICIAL OWNER,
WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE
UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A
BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER
TERMS OF THE GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF
THE TRUST, SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF
THIS TRUST AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS BETWEEN THE
TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
55
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first written above.
BANCORPSOUTH, INC., Depositor
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE BANK OF NEW YORK, as Property
Trustee and not in its individual capacity
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THE BANK OF NEW YORK
(DELAWARE), as Delaware
Trustee and not in its individual
capacity
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, as Administrative
Trustee and not in his individual capacity
------------------------------------------
L. ▇▇▇▇ ▇▇▇▇▇, Jr., as Administrative
Trustee and not in his individual capacity
56
EXHIBIT A
AMENDED AND RESTATED
CERTIFICATE OF TRUST OF
BANCORPSOUTH CAPITAL TRUST I
THIS Amended and Restated Certificate of Trust of BancorpSouth Capital
Trust I (the "Trust"), dated as of [ ], is being duly executed and filed by the
undersigned, as trustees, to amend and restate the Certificate of Trust of the
Trust, which was filed with the Secretary of State of the State of Delaware on
August 22, 1997, under the Delaware Business Trust Act (12 Del. C.ss.3801 et
seq.) (the "Act").
The Original Certificate of Trust of the Trust is hereby amended and
restated in its entirety, pursuant to Section 3810(c)(1) of the Act, to read as
follows:
1. Name. The name of the business trust formed hereby is
BancorpSouth Capital Trust I.
2. Delaware Trustee. The name and business address of
the trustee of the Trust in the State of Delaware are The Bank of New York
(Delaware), ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
3. Effective Date. This Amended and Restated Certificate
of Trust shall be effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have duly executed this Amended and Restated Certificate of Trust in
accordance with Section 3811(a)(2) of the Act.
THE BANK OF NEW YORK (DELAWARE), not
in its individual capacity but solely as trustee of
the Trust
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------------
Name:
----------------------------------------------
Title: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SVP
---------------------------------------------
THE BANK OF NEW YORK, not in its
individual capacity but solely as trustee of the
Trust
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Title: VICE PRESIDENT
---------------------------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, not in his individual
capacity but solely as trustee of the Trust
/s/ L. ▇▇▇▇ ▇▇▇▇▇, Jr.
---------------------------------------------------
L. ▇▇▇▇ ▇▇▇▇▇, JR., not in his individual
capacity but solely as trustee of the Trust
57
EXHIBIT B
IF THE PREFERRED SECURITIES CERTIFICATE IS TO BE A GLOBAL PREFERRED
SECURITIES CERTIFICATE, INSERT--[THIS PREFERRED SECURITIES CERTIFICATE IS A
GLOBAL PREFERRED SECURITIES CERTIFICATE WITHIN THE MEANING OF THE TRUST
AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") OR A NOMINEE OF THE DEPOSITARY. THIS
PREFERRED SECURITIES CERTIFICATE IS EXCHANGEABLE FOR PREFERRED SECURITIES
CERTIFICATES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS PREFERRED SECURITIES CERTIFICATE (OTHER THAN A TRANSFER OF
THIS PREFERRED SECURITIES CERTIFICATE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE TRUST AGREEMENT.
UNLESS THIS PREFERRED SECURITIES CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK) TO BANCORPSOUTH CAPITAL TRUST I OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY PREFERRED SECURITIES CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY A PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
The Preferred Securities are issued, any may be transferred, only in
blocks having a Liquidation Amount of not less than $25.00 and integral
multiples thereof.
58
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER PREFERRED SECURITIES
CUSIP NO. [ ]
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
BANCORPSOUTH CAPITAL TRUST I
TRUST PREFERRED SECURITIES
(LIQUIDATION AMOUNT $25.00 PER PREFERRED SECURITY)
BancorpSouth Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that Cede &
Co. (the "Holder") is the registered owner of ________________ ( ) Preferred
Securities of the Trust representing a preferred, undivided beneficial interest
in the assets of Trust and designated BancorpSouth Capital Trust I Trust
Preferred Securities (Liquidation Amount $25.00 per Preferred Security) (the
"Preferred Securities"). The Preferred Securities are transferable on the books
and records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer as
provided in Section 5.05 of the Trust Agreement (as defined below). The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth in, and this certificate
and the Preferred Securities presented hereby are issued and shall in all
respects be subject to the terms and provisions of, the Second Amended and
Restated Trust Agreement of the Trust dated as of [ ] as the same may be amended
from time to time (the "Trust Agreement") among BancorpSouth, Inc., as
Depositor, The Bank of New York, as Property Trustee, The Bank of New York
(Delaware), as Delaware Trustee, the Administrative Trustees named therein, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust, including the designation of the terms of Preferred Securities as
set forth therein. The Holder is entitled to the benefits of the Guarantee
Agreement entered into by BancorpSouth, Inc., a Mississippi corporation, and The
Bank of New York, as Guarantee Trustee, dated as of [ ], (the "Guarantee
Agreement"), to the extent provided therein. The Trust will furnish a copy of
the Trust Agreement and the Guarantee Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement. The Trust Agreement and this Preferred Security shall be
governed by and construed in accordance with the laws of the State of Delaware
without regard to conflicts of laws principles thereof.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to benefits thereunder.
59
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this Certificate this [ ] day of [ ].
BANCORPSOUTH CAPITAL TRUST I
By:
---------------------------------------
Name:
-------------------------------------
Title: Administrative Trustee
------------------------------------
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as Property
Trustee
By:
---------------------------------------
Authorized Signatory
60
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date:
---------------
Signature
(Sign exactly as your name appears on the other
side of this Preferred Security Certificate)
The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program),
pursuant to SEC Rule 17 Ad-15.
61
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE TRUST AGREEMENT
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER COMMON SECURITIES
Certificate Evidencing Common Securities
of
BancorpSouth Capital Trust I
Common Securities
(Liquidation Amount $25.00 per Common Security)
BancorpSouth Capital Trust I, a statutory business trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
BancorpSouth, Inc. (the "Holder") is the registered owner of [ ] ( ) common
securities of the Trust representing common, beneficial interests of the Trust
and designated the Common Securities of the Trust (Liquidation Amount $25.00 per
Common Security) (the "Common Securities"). Except as provided in Section 5.11
of the Trust Agreement (as defined below) the Common Securities are not
transferable and any attempted transfer hereof shall be void. The designations,
rights, privileges, restrictions, preferences and other terms and provisions of
the Common Securities are set forth in, and this certificate and the Common
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Second Amended and Restated Trust Agreement of
the Trust dated as of [ ], as the same may be amended from time to time (the
"Trust Agreement") among BancorpSouth, Inc., as Depositor, The Bank of New York,
as Property Trustee, The Bank of New York (Delaware), as Delaware Trustee, the
Administrative Trustees named therein, and the holders, from time to time, of
undivided beneficial interests in the assets of the Trust, including the
designation of the terms of the Common Securities as set forth therein. The
Trust will furnish a copy of the Trust Agreement to the Holder without charge
upon written request to the Trust at its principal place of business or
registered office.
Terms used but not defined herein have the meanings set forth in the
Trust Agreement. The Trust Agreement and this Common Security shall be governed
by and construed in accordance with the laws of the State of Delaware without
regard to conflicts of laws principles thereof.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
62
IN WITNESS WHEREOF, one of the Administrative Trustees of the Trust has
executed this certificate this [ ] day of [ ].
BANCORPSOUTH CAPITAL TRUST I
By:
---------------------------------------
Name:
-------------------------------------
Title: Administrative Trustee
------------------------------------
COUNTERSIGNED AND REGISTERED:
THE BANK OF NEW YORK, as Property
Trustee
By:
---------------------------------------
Authorized Signatory
63