<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 27, 1997
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
<TABLE>
<C> <C>
BANCORPSOUTH, INC. BANCORPSOUTH CAPITAL TRUST I
(Exact Name of Registrant as Specified in Its (Exact Name of Registrant as Specified in Its
Charter) Charter)
MISSISSIPPI DELAWARE
(State or Other Jurisdiction of (State or Other Jurisdiction of
Incorporation or Organization) Incorporation or Organization)
64-0659571 APPLIED FOR
(I.R.S. Employer Identification Number) (I.R.S. Employer Identification Number)
ONE MISSISSIPPI PLAZA ONE MISSISSIPPI PLAZA
TUPELO, MISSISSIPPI 38801 TUPELO, MISSISSIPPI 38801
(601) 680-2000 (601) 680-2000
(Address, Including Zip Code, and Telephone Number, (Address, Including Zip Code, and Telephone Number,
including Area Code, of including Area Code, of
Registrant's Principal Executive Offices) Registrant's Principal Executive Offices)
</TABLE>
---------------------
<TABLE>
<C> <C>
Copies of communications to:
AUBREY B. PATTERSON THEODORE W. LENZ, ESQ.
BANCORPSOUTH, INC. WALLER LANSDEN DORTCH & DAVIS,
ONE MISSISSIPPI PLAZA A PROFESSIONAL LIMITED LIABILITY COMPANY
TUPELO, MISSISSIPPI 38801 2100 NASHVILLE CITY CENTER
(601) 680-2000 511 UNION STREET
(Name, Address, Including Zip Code, and Telephone NASHVILLE, TENNESSEE 37219-1760
Number, (615) 244-6380
Including Area Code, of Agent for Service)
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
- ------------
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
- ---------------
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE AGGREGATE OFFERING AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PRICE PER UNIT(1)(2) PRICE(1)(2) FEE
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
% Capital Securities, Series A of
BancorpSouth Capital Trust I.................... $75,000,000 100% $75,000,000 $22,728
- ---------------------------------------------------------------------------------------------------------------------------------
% Junior Subordinated Debt Securities of
BancorpSouth, Inc.(3)........................... -- -- -- N/A
- ---------------------------------------------------------------------------------------------------------------------------------
BancorpSouth, Inc. Guarantee with respect to
Capital Securities and Common Securities(4)..... -- -- -- N/A
- ---------------------------------------------------------------------------------------------------------------------------------
Total(5)........................................ $75,000,000 100% $75,000,000 $22,728
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of computing the registration fee.
(2) Such amount represents the initial offering price of the Capital Securities,
Series A (the "Capital Securities") to be offered hereunder and the
principal amount of Junior Subordinated Debt Securities that may be
distributed upon any liquidation of BancorpSouth Capital Trust I.
(3) The Junior Subordinated Debt Securities are to be originally purchased by
BancorpSouth Capital Trust I with the proceeds of the sale of the Capital
Securities. No separate consideration will be received for the Junior
Subordinated Debt Securities distributed upon any liquidation of
BancorpSouth Capital Trust I.
(4) No separate consideration will be received for the BancorpSouth, Inc.
Guarantee.
(5) This Registration Statement is deemed to cover the Junior Subordinated Debt
Securities of BancorpSouth, Inc., the rights of holders of Junior
Subordinated Debt Securities of BancorpSouth, Inc. under the Indenture (as
defined herein), the rights of holders of the Capital Securities of
BancorpSouth Capital Trust I under the Declaration (as defined herein), and
the rights of holders of the Capital Securities under the Guarantee (as
defined herein).
---------------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
AUGUST 27, 1997
PROSPECTUS
$75,000,000
BANCORPSOUTH CAPITAL TRUST I
% CAPITAL TRUST PASS-THROUGH SECURITIES(R)(TRUPS(R))
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED, AS DESCRIBED HEREIN, BY
BANCORPSOUTH, INC.
The % Capital Trust Pass-through Securities(R) (the "Capital Securities")
are being offered hereby by BancorpSouth Capital Trust I, a statutory business
trust created under the laws of the State of Delaware (the "Trust").
BancorpSouth, Inc., a Mississippi corporation ("BancorpSouth" or the "Company"),
will be the direct or indirect owner of all of the beneficial ownership
interests represented by common securities of the Trust (the "Common Securities"
and, collectively with the Capital Securities, the "Trust Securities"). Bankers
Trust Company is the Property Trustee of the Trust. The Trust exists for the
exclusive purposes of issuing the Trust Securities, investing the proceeds
thereof in % Junior Subordinated Debt Securities (the "Junior Subordinated
Debt Securities") to be issued by the Company and certain other limited
activities described herein. The Junior Subordinated Debt Securities will mature
on , 2027 (the "Stated Maturity"). The Capital Securities will have a
preference under certain circumstances with respect to cash distributions and
amounts payable on liquidation, redemption or otherwise over the Common
Securities. See "Underwriting" and "Description of Capital Securities --
Subordination of Common Securities." (Continued on next page)
SEE "RISK FACTORS" BEGINNING ON PAGE 7 HEREOF FOR CERTAIN INFORMATION RELEVANT
TO AN INVESTMENT IN THE CAPITAL SECURITIES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THESE SECURITIES ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT
INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL
AGENCY.
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNT COMPANY(1)(2)(3)
<S> <C> <C> <C>
% Capital Securities, Series A of
BancorpSouth Capital Trust I................ % % %
Total......................................... $ $ $
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus accrued Distributions, if any, from , 1997 to date of delivery.
(2) In view of the fact that the proceeds of the sale of the Capital Securities
will be invested in the Junior Subordinated Debt Securities, the Company has
agreed to pay to the Underwriters as compensation for their arranging the
investment therein of such proceeds $ per Capital Security (or $ in
the aggregate). See "Underwriting."
(3) Before deducting expenses payable by the Company estimated at $ .
(The) Capital Securities are offered subject to receipt and acceptance by the
Underwriters, to prior sale and to the Underwriters' right to reject any order
in whole or in part and to withdraw, cancel or modify the offer without notice.
It is expected that delivery of Global Capital Securities representing the
Capital Securities will be made through the facilities of The Depository Trust
Company ("DTC") on or about , 1997, against payments
therefor in immediately available funds.
(R)Capital Trust Pass-through Securities and TRUPS are registered service marks
of Salomon Brothers Inc
SALOMON BROTHERS INC KEEFE, BRUYETTE & WOODS, INC.
The date of this Prospectus is , 1997.
<PAGE> 3
(Cover page continued)
Holders of the Capital Securities and the holder of the Common Securities
will be entitled to receive cumulative cash distributions, in each case arising
from the payment of interest on the Junior Subordinated Debt Securities accruing
from the date of original issuance and payable semi-annually in arrears on the
day of March and September of each year, commencing March , 1998, at the
annual rate of % of the Liquidation Amount of $1,000 per Trust Security
("Distributions"). Subject to certain exceptions, the Company has the right to
defer payments of interest on the Junior Subordinated Debt Securities at any
time or from time to time for a period not exceeding ten consecutive semi-annual
periods with respect to each deferral period (each, an "Extension Period");
provided, however, that no Extension Period may extend beyond the Stated
Maturity of the Junior Subordinated Debt Securities. Upon the termination of any
Extension Period and the payment of all interest then accrued and unpaid
(together with interest thereon at the rate of %, compounded semi-annually, to
the extent permitted by applicable law), the Company may elect to begin a new
Extension Period, subject to the requirements set forth herein. If interest
payments on the Junior Subordinated Debt Securities are so deferred,
Distributions on the Capital Securities and on the Common Securities will also
be deferred and the Company will not be permitted, subject to certain exceptions
described herein, to declare or pay certain cash distributions with respect to
the Company's capital stock or to make any payment with respect to debt
securities of the Company that rank pari passu in all respects with or junior to
the Junior Subordinated Debt Securities. During an Extension Period, interest on
the Junior Subordinated Debt Securities will continue to accrue (and the amount
of Distributions to which holders of the Capital Securities are entitled will
accumulate) at the rate of % per annum, compounded semi-annually, and holders
of Capital Securities will be required to accrue interest income for United
States federal income tax purposes. See "Description of Junior Subordinated Debt
Securities -- Option to Extend Interest Payment Date" and "Certain United States
Federal Income Tax Consequences -- Interest Income and Original Issue Discount."
The Company has, through the Guarantee Agreement, the Declaration, the
Junior Subordinated Debt Securities and the Indenture (each as defined herein),
taken together, fully, irrevocably and unconditionally guaranteed, as described
herein, all of the Trust's obligations under the Capital Securities, including
the Company's obligation to pay the costs, expenses and liabilities of the Trust
(other than the Trust's obligations to holders of the Trust Securities under
such Trust Securities). See "Relationship Among the Capital Securities, the
Junior Subordinated Debt Securities and the Guarantee -- Full and Unconditional
Guarantee." The Company has agreed to guarantee the payment of Distributions and
payments on liquidation or redemption of the Capital Securities, but only in
each case to the extent of funds held by the Trust, as described herein (the
"Guarantee"). See "Description of Guarantee." If the Company does not make
interest payments on the Junior Subordinated Debt Securities held by the Trust,
the Trust will have insufficient funds to pay Distributions on the Capital
Securities. The Guarantee does not cover the payment of Distributions when the
Trust does not have sufficient funds to pay such Distributions. In such event, a
holder of Capital Securities may institute a legal proceeding directly against
the Company for enforcement of payment to such holder of the principal of or
interest on Junior Subordinated Debt Securities having a principal amount equal
to the aggregate Liquidation Amount of the Capital Securities held by such
holder (a "Direct Action"). See "Description of Junior Subordinated Debt
Securities -- Enforcement of Certain Rights by Holders of Capital Securities."
The obligations of the Company under the Guarantee and the Junior Subordinated
Debt Securities are subordinate and junior in right of payment to all Senior
Debt (as defined in "Description of Junior Subordinated Debt
Securities -- Subordination") of the Company. In addition, because the Company
is a holding company, the Junior Subordinated Debt Securities and the Guarantee
are effectively subordinated to all existing and future liabilities of the
Company's subsidiaries, including deposits.
The Trust Securities are subject to mandatory redemption (i) in whole, but
not in part, at the Stated Maturity of the Junior Subordinated Debt Securities
upon the redemption thereof at a redemption price equal to the principal amount
of, plus accrued interest on, the Junior Subordinated Debt Securities (the
"Maturity Redemption Price"), (ii) in whole, but not in part, at any time prior
to , 2007, contemporaneously with the optional redemption of the
Junior Subordinated Debt Securities, upon the
ii
<PAGE> 4
(Cover page continued)
occurrence and continuation of a Special Event (as defined herein) at a
redemption price equal to the Special Event Prepayment Price (as defined herein)
(the "Special Event Redemption Price"), and (iii) in whole or in part on or
after , 2007 contemporaneously with any optional redemption by the
Company of Junior Subordinated Debt Securities at a redemption price (the
"Optional Redemption Price") equal to the Optional Prepayment Price (as defined
herein). Any of the Maturity Redemption Price, the Special Event Redemption
Price or the Optional Redemption Price may be referred to herein as the
"Redemption Price." See "Description of Capital Securities -- Mandatory
Redemption." Subject to the Company having received prior approval of the Board
of Governors of the Federal Reserve System (the "Federal Reserve") or any other
state or federal regulatory agency having jurisdiction over the Company
(collectively, the "Regulatory Authorities") if then required under applicable
capital guidelines or policies of the Regulatory Authorities, the Junior
Subordinated Debt Securities are redeemable prior to the Stated Maturity (i) at
any time prior to , 2007, in whole but not in part, upon the
occurrence and continuation of a Special Event, at a redemption price (the
"Special Event Prepayment Price") equal to 100% of the principal amount thereof
plus accrued but unpaid interest to but excluding the date fixed for redemption
or (ii) at the option of the Company on or after , 2007, in whole or
in part at any time at a redemption price (the "Optional Prepayment Price")
equal to % of the principal amount thereof on , 2007 declining ratably
on each thereafter to 100% on or after , 2017, plus accrued and
unpaid interest thereon to the date of redemption. See "Description of Junior
Subordinated Debt Securities -- Optional Redemption" and "-- Special Event
Prepayment."
The Company, as the holder of the outstanding Common Securities, has the
right at any time (including, without limitation, upon the occurrence of a Tax
Event (as defined herein)) to dissolve the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, cause a
Like Amount (as defined herein) of the Junior Subordinated Debt Securities to be
distributed to the holders of the Trust Securities upon liquidation of the
Trust, subject to prior approval of the Regulatory Authorities to do so if then
required under applicable capital guidelines or policies of the Regulatory
Authorities. In the event of such termination of the Trust, after satisfaction
of liabilities to creditors of the Trust as provided by applicable law, the
holders of the Capital Securities generally will be entitled to receive a
Liquidation Amount of $1,000 per Capital Security plus accumulated and unpaid
Distributions thereon to the date of payment, which shall be in the form of a
distribution of a Like Amount of Junior Subordinated Debt Securities, subject to
certain exceptions. See "Description of Capital Securities -- Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities."
The Capital Securities will be represented by a global certificate in fully
registered form, deposited with a custodian for and registered in the name of
Cede & Co., as nominee for DTC. Beneficial interests in the Capital Securities
represented by a global certificate will be shown on, and transfers thereof will
be effected through, records maintained by DTC and its participants. Owners of
beneficial interests in the certificates representing the Capital Securities
will be entitled to physical delivery of Capital Securities in certificated form
in the amount of their respective beneficial interests only under the limited
circumstances described herein. See "Description of Capital Securities -- Form,
Denomination, Book-Entry Procedures and Transfer."
As used herein, (i) the "Indenture" means the Junior Subordinated
Indenture, as amended and supplemented from time to time, between the Company
and Bankers Trust Company, as trustee (the "Debenture Trustee"), and (ii) the
"Declaration" means the Amended and Restated Declaration of Trust relating to
the Trust among the Company, as Depositor, Bankers Trust Company, as Property
Trustee (the "Property Trustee"), Bankers Trust (Delaware), as Delaware Trustee
(the "Delaware Trustee"), and the Administrative Trustees named therein
(collectively with the Property Trustee and the Delaware Trustee, the "Issuer
Trustees").
iii
<PAGE> 5
(Cover page continued)
---------------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT SECURITIES,
INCLUDING STABILIZING AND SYNDICATE COVERING TRANSACTIONS. FOR A DESCRIPTION OF
THESE ACTIVITIES, SEE "UNDERWRITING."
---------------------
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and any information or representation not
contained or incorporated herein must not be relied upon as having been
authorized by the Company or the Underwriters (as defined herein). This
Prospectus does not constitute an offer to sell or the solicitation of an offer
to buy any security other than the securities covered by this Prospectus, nor
does it constitute an offer or solicitation by any person in any jurisdiction in
which it is unlawful for such person to make such an offer or solicitation.
Neither the delivery of this Prospectus at any time nor any sale made hereunder
shall under any circumstances imply that the information herein is correct as of
any date subsequent to the date hereof.
iv
<PAGE> 6
AVAILABLE INFORMATION
The Company has filed a Registration Statement on Form S-3, including
amendments thereto, if any, with respect to the Capital Securities, the Junior
Subordinated Debt Securities and the Guarantee (the "Registration Statement")
with the Securities and Exchange Commission (the "Commission"). This Prospectus
does not contain all of the information set forth in the Registration Statement
and the exhibits and schedules thereto. Statements contained in this Prospectus
as to the contents of any contract or other document referred to are not
necessarily complete and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement or
as previously filed with the Commission and incorporated herein by reference.
For further information with respect to the Company and the Capital Securities,
the Junior Subordinated Debt Securities and the Guarantee, reference is made to
such Registration Statement, exhibits and schedules.
The Company is subject to the information requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and, in accordance therewith, files
reports, proxy statements and other information with the Commission. The
Registration Statement, as well as such reports, proxy statements and other
information, may be inspected and copied at prescribed rates at the public
reference facilities maintained by the Commission at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's regional
offices located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661
and Seven World Trade Center, Suite 1300, New York, New York 10048. In addition,
the Commission maintains a web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission at http://www.sec.gov. The Company's Common Stock, par value
$2.50 per share ("Common Stock"), is listed on the New York Stock Exchange, Inc.
(the "Exchange"), and such reports, proxy statements and other information may
be inspected at the offices of the Exchange, 20 Broad Street, New York, New York
10005.
No separate financial statements of the Trust have been included herein.
The Company and the Trust do not consider that such financial statements would
be material to holders of the Capital Securities because the Trust is a newly
formed special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage in any activity
other than holding as trust assets the Junior Subordinated Debt Securities and
issuing the Trust Securities. See "BancorpSouth Capital Trust I," "Description
of Capital Securities," "Description of Junior Subordinated Debt Securities" and
"Description of Guarantee." In addition, the Company does not expect that the
Trust will file reports under the Exchange Act with the Commission.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents or portions of documents filed by the Company with
the Commission are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1996;
(2) The Company's Amendment to Annual Report on Form 10-K/A-1 for the
year ended December 31, 1996, as filed with the Commission on June 27,
1997;
(3) The Company's Amendment to Annual Report on Form 10-K/A-2 for the
year ended December 31, 1996, as filed with the Commission on July 21,
1997;
(4) The Company's quarterly report on Form 10-Q for the three months
ended March 31, 1997;
(5) The Company's quarterly report on Form 10-Q for the three months
ended June 30, 1997;
(6) The Company's Amendment to quarterly report on Form 10-Q/A-1 for
the three months ended June 30, 1997, as filed with the Commission on
August 11, 1997;
(7) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, dated May 14, 1997; and
2
<PAGE> 7
(8) The description of the Company's Common Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A, dated May
14, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus shall be
deemed to be incorporated by reference into this Prospectus. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT PRESENTED
HEREIN OR DELIVERED HEREWITH. A COPY OF THESE DOCUMENTS IS AVAILABLE UPON
WRITTEN OR ORAL REQUEST, AT NO CHARGE, FROM CATHY S. FREEMAN, VICE PRESIDENT AND
CORPORATE SECRETARY, BANCORPSOUTH, INC., ONE MISSISSIPPI PLAZA, TUPELO,
MISSISSIPPI 38801, (601) 680-2000.
3
<PAGE> 8
SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere in this Prospectus.
BANCORPSOUTH CAPITAL TRUST I
The Trust is a statutory business trust created under the laws of the State
of Delaware pursuant to (i) the Declaration and (ii) the filing of a certificate
of trust with the Delaware Secretary of State on August 22, 1997. The Trust's
business and affairs are conducted by the Issuer Trustees: Bankers Trust
Company, as Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and
two individual Administrative Trustees who are employees or officers of or
affiliated with the Company. The Trust exists for the exclusive purposes of (i)
issuing and selling the Trust Securities, (ii) using the proceeds from the sale
of the Trust Securities to acquire the Junior Subordinated Debt Securities
issued by the Company and (iii) engaging in only those other activities
necessary, advisable or incidental thereto (such as registering the transfer of
the Capital Securities). The Junior Subordinated Debt Securities will be the
sole assets of the Trust, and payments under the Junior Subordinated Debt
Securities will be the sole revenues of the Trust. All of the Common Securities
will be owned directly by the Company, or indirectly through a wholly-owned
subsidiary of the Company.
BANCORPSOUTH
The Company is a bank holding company with financial services operations in
Mississippi and Tennessee principally through its wholly-owned subsidiary,
BancorpSouth Bank (the "Bank"), which does business in Mississippi under the
name Bank of Mississippi and in Tennessee under the name Volunteer Bank. At June
30, 1997, the Company and its subsidiaries had total assets of approximately
$3.82 billion and shareholders' equity of approximately $346,000,000. The
Company's principal office is located at One Mississippi Plaza, Tupelo,
Mississippi 38801 and its telephone number is (601) 680-2000.
Through its subsidiaries, the Company conducts a general commercial banking
and trust business through offices in communities throughout Mississippi and
West Tennessee. At August 26, 1997, the Company had 93 branch offices located in
Mississippi and 27 branch offices located in Tennessee. The Company has grown
through the acquisition of other banks, the purchase of assets from federal
regulators and through the opening of new branches and offices. In addition, the
Bank operates consumer finance and credit life insurance subsidiaries.
The Company, through the Bank, provides a range of financial services and
products to individuals and small-to-medium size businesses. The Company's
lending activities include both commercial and consumer loans. Various types of
checking accounts, both interest bearing and non-interest bearing, are
available. Savings accounts and certificates of deposit with a range of
maturities and interest rates are available to meet the needs of customers.
Other services include safe deposit and night depository facilities. Limited
24-hour banking with automated teller machines is provided in most of the Bank's
principal markets. The Bank is an issuing bank for MasterCard and Visa, and
overdraft protection is available to approved cardholders maintaining checking
accounts with the Bank.
The Company offers a variety of services through the Bank's trust
department, including personal trust and estate services, certain employee
benefit accounts and plans, including individual retirement accounts, and
limited corporate trust functions.
THE OFFERING
Securities Offered.................. $75,000,000 aggregate Liquidation
Amount of % Capital Trust
Pass-through Securities (Liquidation
Amount $1,000 per Capital Security).
4
<PAGE> 9
Offering Price...................... $ per Capital Security, plus
accrued Distributions, if any.
Distribution Dates.................. March and September of each
year, commencing March , 1998.
Extension Periods................... Distributions (but not accruals) on
Capital Securities will be deferred
for the duration of any Extension
Period elected by the Company with
respect to the payment of interest on
the Junior Subordinated Debt
Securities. No Extension Period will
exceed ten consecutive semi-annual
periods or extend beyond the Stated
Maturity of the Junior Subordinated
Debt Securities. At the end of an
Extension Period, the Company must pay
all interest then accrued and unpaid
on the Junior Subordinated Debt
Securities (together with interest
thereon at the annual rate of %,
compounded semi-annually from the
relevant Interest Payment Date, to the
extent permitted by applicable law).
During an Extension Period, interest
will continue to accrue and holders of
Junior Subordinated Debt Securities
(and holders of the Capital Securities
while Capital Securities are
outstanding) will be required to
accrue interest income (in the form of
original issue discount ("OID")) for
United States federal income tax
purposes. See "Description of Junior
Subordinated Debt Securities -- Option
to Extend Interest Payment Date" and
"Certain United States Federal Income
Tax Consequences -- Interest Income
and Original Issue Discount."
Ranking............................. The Capital Securities will rank pari
passu, and payments thereon will be
made pro rata, with the Common
Securities except as described under
"Description of Capital
Securities -- Subordination of Common
Securities." The Junior Subordinated
Debt Securities will rank pari passu
with all other junior subordinated
debt securities to be issued by the
Company pursuant to the Indenture with
substantially similar subordination
terms ("Other Debentures"), and which
may be issued and sold (if at all) to
other trusts to be established by the
Company (if any), in each case similar
to the Trust ("Other Trusts"), and
will be unsecured and subordinate and
junior in right of payment to the
extent and in the manner set forth in
the Indenture to all Senior Debt of
the Company. See "Description of
Junior Subordinated Debt Securities."
The Guarantee will rank pari passu
with all other guarantees (if any) to
be issued by the Company with respect
to capital securities (if any) to be
issued by Other Trusts ("Other
Guarantees") and will constitute an
unsecured obligation of the Company
and will rank subordinate and junior
in right of payment to the extent and
in the manner set forth in the
Guarantee to all Senior Debt. See
"Description of Guarantee." In
addition, because the Company is a
holding company, the Junior
Subordinated Debt Securities and the
Guarantee are effectively subordinated
to all
5
<PAGE> 10
existing and future liabilities of the
Company's subsidiaries, including
deposits.
Redemption.......................... The Trust Securities are subject to
mandatory redemption (i) in whole, but
not in part, at the Stated Maturity of
the Junior Subordinated Debt
Securities upon the redemption
thereof, (ii) in whole, but not in
part, at any time prior to
, 2007,
contemporaneously with the optional
redemption of the Junior Subordinated
Debt Securities upon the occurrence
and continuation of a Special Event
and (iii) in whole or in part at any
time on or after , 2007
contemporaneously with any optional
redemption by the Company of Junior
Subordinated Debt Securities, in each
case at the applicable Redemption
Price. See "Description of Capital
Securities -- Mandatory Redemption."
Rating.............................. The Capital Securities are expected to
be rated "BB+" by Standard & Poor's
Ratings Services and "ba1" by Moody's
Investors Service, Inc. A security
rating is not a recommendation to buy,
sell or hold securities and may be
subject to revision or withdrawal at
any time by the assigning rating
organization.
Absence of Market for the Capital
Securities.......................... The Capital Securities will be a new
issue of securities for which there is
currently no market. Although the
Underwriters have informed the Trust
and the Company that they currently
intend to make a market in the Capital
Securities, the Underwriters are not
obligated to do so, and any such
market making may be discontinued at
any time without notice. Accordingly,
there can be no assurance as to the
development or liquidity of any market
for the Capital Securities. See
"Underwriting."
Use of Proceeds..................... All of the proceeds from the sale of
the Trust Securities will be invested
by the Trust in the Junior
Subordinated Debt Securities. The
Company intends to apply the net
proceeds from the sale of the Junior
Subordinated Debt Securities to its
general funds to be used for general
corporate purposes, including, from
time to time, the redemption or the
purchase, in the open market or in
privately negotiated transactions, of
outstanding shares of capital stock of
the Company and the making of advances
to its subsidiaries, and could be used
in connection with one or more future
acquisitions. Pending any such
application, the net proceeds may be
used to make investments in
interest-bearing securities or equity
securities, or to reduce short-term
borrowings.
ERISA Considerations................ Prospective purchasers should
carefully consider the restrictions on
purchase set forth under "Certain
ERISA Considerations."
6
<PAGE> 11
RISK FACTORS
Prospective purchasers of the Capital Securities should carefully review
the information contained elsewhere in this Prospectus and should particularly
consider the following matters.
RANKING OF OBLIGATIONS UNDER THE GUARANTEE AND THE JUNIOR SUBORDINATED DEBT
SECURITIES; EFFECT UPON CAPITAL SECURITIES
The obligations of the Company under the Guarantee issued by the Company
for the benefit of the holders of Capital Securities and under the Junior
Subordinated Debt Securities are unsecured and rank subordinate and junior in
right of payment to all Senior Debt (which, as defined, includes all outstanding
subordinated debt of the Company) of the Company outstanding from time to time.
At June 30, 1997, there was no outstanding Senior Debt of the Company; however,
the Company may incur Senior Debt in the future. Upon the issuance of the Junior
Subordinated Debt Securities, the Company will not have any indebtedness that
ranks pari passu with or junior to its obligations under the Guarantee and the
Junior Subordinated Debt Securities. Because the Company is a bank holding
company, the right of the Company to participate in any distribution of assets
of any subsidiary, upon such subsidiary's liquidation or reorganization or
otherwise (and thus the ability of holders of the Capital Securities to benefit
indirectly from such distribution), is subject to the prior claims of creditors
of such subsidiary, except to the extent that the Company may itself be
recognized as a creditor of such subsidiary. Accordingly, the Junior
Subordinated Debt Securities will be effectively subordinated to all existing
and future liabilities of the Company's subsidiaries, and holders of Junior
Subordinated Debt Securities should look only to the assets of the Company for
payments on the Junior Subordinated Debt Securities. Because the Company is a
holding company with limited assets and liabilities, a substantial portion of
the consolidated liabilities of the Company are liabilities of its subsidiaries.
The Guarantee will constitute an unsecured obligation of the Company and will
rank subordinate and junior in right of payment to all Senior Debt in the same
manner as the Junior Subordinated Debt Securities. None of the Indenture, the
Guarantee or the Declaration places any limitation on the amount of secured or
unsecured debt, including Senior Debt, that may be incurred by the Company or
any subsidiary. See "Description of Junior Subordinated Debt
Securities -- Subordination" and "Description of Guarantee -- Status of the
Guarantee."
The ability of the Trust to pay amounts due on the Capital Securities is
solely dependent upon the Company making payments on the Junior Subordinated
Debt Securities as and when required.
STATUS OF THE COMPANY AS A BANK HOLDING COMPANY
The Company is a legal entity separate and distinct from the Bank and its
other subsidiaries, although the principal source of the Company's cash revenues
is dividends from the Bank. The right of the Company to participate in the
distribution of assets of any subsidiary, including the Bank, upon the latter's
liquidation, reorganization or otherwise (and thus the ability of the holders of
Capital Securities to benefit indirectly from any such distribution) will be
subject to the prior claims of such subsidiary's creditors, which will take
priority except to the extent that the Company may itself be a creditor of such
subsidiary with a recognized claim. Accordingly, the Junior Subordinated Debt
Securities will be effectively subordinated to all existing and future
liabilities of the Company's subsidiaries, and holders of Junior Subordinated
Debt Securities should look only to the assets of the Company for payments on
the Junior Subordinated Debt Securities. Because the Company is a holding
company with limited assets and liabilities, a substantial portion of the
consolidated liabilities of the Company are liabilities of its subsidiaries. The
Guarantee will constitute an unsecured obligation of the Company and will rank
subordinate and junior in right of payment to all Senior Debt in the same manner
as the Junior Subordinated Debt Securities. As a holding company, the Company
conducts its operations principally through its direct and indirect subsidiaries
and, therefore, its principal source of cash, other than its investing and
financing activities, is receipt of dividends from the Bank. However, there are
legal limitations on the source and amount of dividends that the Bank is
permitted to pay.
7
<PAGE> 12
OPTION TO EXTEND INTEREST PAYMENT DATE; TAX CONSEQUENCES; MARKET PRICE
CONSEQUENCES
So long as no Debenture Event of Default (as defined herein) has occurred
and is continuing, the Company has the right under the Indenture to defer the
payment of interest on the Junior Subordinated Debt Securities at any time or
from time to time for a period not exceeding ten consecutive semi-annual periods
with respect to each Extension Period; provided, however, 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 Capital Securities by the Trust will also be deferred (and the amount of
Distributions to which holders of the Capital Securities are entitled will
accumulate additional Distributions thereon at the rate of % per annum,
compounded semi-annually) from the relevant payment date for such Distributions
during any such Extension Period. During any Extension Period, the Company may
not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of the Company's
capital stock (ii) make any payment of principal, interest or premium, if any,
on, or repay, repurchase or redeem any debt securities of the Company (including
Other Debentures) that rank pari passu with or junior in interest to, the Junior
Subordinated Debt Securities or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a shareholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the Guarantee, (d) purchases or acquisitions of shares of the Company's Common
Stock in connection with the satisfaction by the Company of its obligations
under any employee benefit plan or any other contractual obligation of the
Company (other than a contractual obligation ranking pari passu with or junior
to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock or (f) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
Prior to the termination of any Extension Period, the Company may further extend
such Extension Period; provided, however, that such extension does not cause
such Extension Period to exceed ten consecutive semi-annual periods or to extend
beyond the Stated Maturity. Upon the termination of any Extension Period and the
payment of all interest then accrued and unpaid on the Junior Subordinated Debt
Securities (together with interest thereon at the annual rate of %,
compounded semi-annually, to the extent permitted by applicable law), the
Company may elect to begin a new Extension Period, subject to the above
requirements. There is no limitation on the number of times that the Company may
elect to begin an Extension Period. See "Description of Capital
Securities -- Distributions" and "Description of Junior Subordinated Debt
Securities -- Option to Extend Interest Payment Date."
Because the Company currently believes that the likelihood of its
exercising its option to defer payments of interest is remote, the Junior
Subordinated Debt Securities will be treated under Treasury regulations as
issued without OID for United States federal income tax purposes. As a result,
holders of Capital Securities generally will include their allocable share of
the interest on the Junior Subordinated Debt Securities in taxable income under
their own methods of tax accounting (i.e., cash or accrual). Under the Treasury
regulations, however, if the Company exercises its right to defer payments of
interest, the Junior Subordinated Debt Securities will become OID instruments.
Consequently, holders of Capital Securities will be required to include their
pro rata share of OID in gross income as it accrues for United States federal
income tax purposes in advance of the receipt of cash attributable to such
interest income and such holders will not receive the cash related to such
income if they dispose of the Capital Securities prior to the record date for
payment of distributions thereafter. See "Certain United States Federal Income
Tax Consequences -- Interest Income and Original Issue Discount" and "-- Sales
of Capital Securities."
8
<PAGE> 13
Should the Company elect to exercise its right to defer payments of
interest on the Junior Subordinated Debt Securities in the future, the market
price of the Capital Securities is likely to be affected. A holder that disposes
of its Capital Securities during an Extension Period, therefore, might not
receive the same return on its investment as a holder that continues to hold its
Capital Securities. In addition, as a result of the existence of the Company's
right to defer interest payments on the Junior Subordinated Debt Securities, the
market price of the Capital Securities (which represent beneficial ownership
interests in the Trust holding the Junior Subordinated Debt Securities as its
sole assets) may be more volatile than the market prices of other securities
that are not subject to such deferrals.
SPECIAL EVENT REDEMPTION; POSSIBLE TAX LAW CHANGES AFFECTING THE CAPITAL
SECURITIES
Upon the occurrence and continuation of a Special Event, the Company may
within 90 days after the occurrence of such Special Event, at its option and
subject to receipt of prior approval of the Regulatory Authorities if such
approval is then required under applicable law, rules, guidelines or policies,
redeem the Junior Subordinated Debt Securities in whole, but not in part, at the
Special Event Prepayment Price. In such event, the Trust will redeem the Trust
Securities. See "Description of Junior Subordinated Debt Securities -- Special
Event Prepayment", "Description of Capital Securities -- Mandatory Redemption"
and "Description of Capital Securities -- Liquidation of the Trust and
Distribution of Junior Subordinated Debt Securities."
A "Special Event" means a Tax Event, an Investment Company Event or a
Regulatory Capital Event, as the case may be.
A "Tax Event" means the receipt by the Company of an opinion of independent
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority thereof or therein, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
which proposed change, pronouncement or decision is announced on or after the
date of original issuance, there is more than an insubstantial risk that (x) if
the Junior Subordinated Debt Securities are held by or on behalf of the Trust
(i) the Trust is, or will be within 90 days of the date of such opinion, subject
to United States federal income tax with respect to income received or accrued
on the Junior Subordinated Debt Securities, or subject to more than a de minimis
amount of other taxes, duties or other governmental charges as determined by
such counsel, or (ii) interest payable by the Company on the Junior Subordinated
Debt Securities is not, or within 90 days of the date of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes, or (y) with respect to Junior Subordinated Debt Securities
which are no longer held by the Trust, any portion of interest payable by the
Company on the Junior Subordinated Debt Securities is not, or within 90 days of
the date of such opinion will not be, deductible by the Company for United
States federal income tax purposes.
An "Investment Company Event" means the receipt by the Company of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change (including any
announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act of 1940, as amended (the "Investment Company Act"), which
change or prospective change becomes effective or would become effective, as the
case may be, on or after the date of original issuance of the Capital
Securities.
A "Regulatory Capital Event" means that the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or any
9
<PAGE> 14
successor thereto having regulatory jurisdiction over the capital requirements
for the Company or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the date of original issuance of the Capital Securities, the Capital Securities
do not constitute, or within 90 days of the date thereof, will not constitute,
Tier 1 capital (or its then equivalent); provided, however, that the
distribution of the Junior Subordinated Debt Securities in connection with the
liquidation of the Trust by the Company and the treatment thereafter of the
Junior Subordinated Debt Securities as other than Tier 1 capital shall not in
and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Special Event.
There can be no assurance that a Special Event will not occur that may
result in the redemption of the Junior Subordinated Debt Securities for cash, in
which event the holders of the Capital Securities would receive cash in
redemption of their Capital Securities. See "Description of Capital
Securities -- Mandatory Redemption" and "Description of Junior Subordinated Debt
Securities -- Special Event Prepayment."
LIQUIDATION DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Company has the right at any time to distribute the Junior Subordinated
Debt Securities to holders of the Trust Securities. Under current United States
federal income tax law, a distribution of Junior Subordinated Debt Securities
upon the dissolution of the Trust would not be a taxable event to holders of the
Capital Securities. If, however, the Trust is characterized for United States
federal income tax purposes as an association taxable as a corporation at the
time of dissolution of the Trust, the distribution of the Junior Subordinated
Debt Securities may constitute a taxable event to holders of Capital Securities.
Moreover, upon occurrence of a Special Event, a dissolution of the Trust in
which holders of the Capital Securities receive cash would be a taxable event to
such holders. See "Certain United States Federal Income Tax
Consequences -- Distribution of Junior Subordinated Debt Securities or Cash Upon
Liquidation of the Trust."
There can be no assurance as to the market prices for Capital Securities or
Junior Subordinated Debt Securities that may be distributed in exchange for
Capital Securities if a liquidation of the Trust occurs. Accordingly, the
Capital Securities or the Junior Subordinated Debt Securities may trade at a
discount to the price that the investor paid to purchase the Capital Securities
offered hereby. Because holders of Capital Securities may receive Junior
Subordinated Debt Securities on termination of the Trust, prospective purchasers
of Capital Securities are also making an investment decision with regard to the
Junior Subordinated Debt Securities and should carefully review all the
information regarding the Junior Subordinated Debt Securities contained herein.
See "Description of Capital Securities -- Liquidation of the Trust and
Distribution of Junior Subordinated Debt Securities" and "Description of Junior
Subordinated Debt Securities -- General."
RIGHTS UNDER THE GUARANTEE
The Guarantee guarantees to the holders of the Capital Securities the
following payments, to the extent not paid by the Trust: (i) any accumulated and
unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the applicable Redemption Price with respect to any Capital Securities called
for redemption, to the extent that the Trust has funds on hand available
therefor at such time, and (iii) upon a voluntary or involuntary dissolution,
winding-up or liquidation of the Trust (unless the Junior Subordinated Debt
Securities are distributed to holders of the Capital Securities), the lesser of
(a) the aggregate of the Liquidation Amount and all accumulated and unpaid
Distributions to the date of payment, to the extent that the Trust has funds on
hand available therefor at such time, and (b) the amount of assets of the Trust
remaining available for distribution to holders of the Capital Securities after
the satisfaction of liabilities to creditors of the Trust as provided by
applicable law.
10
<PAGE> 15
The holders of not less than a majority in aggregate Liquidation Amount of
the Capital Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Guarantee Trustee (as
defined herein) in respect of the Guarantee or to direct the exercise of any
trust power conferred upon the Guarantee Trustee under the Guarantee. Any holder
of the Capital Securities may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. If the Company were to default on its obligation to pay amounts payable
under the Junior Subordinated Debt Securities, the Trust would lack funds for
the payment of Distributions or amounts payable on redemption of the Capital
Securities or otherwise, and, in such event, holders of the Capital Securities
would not be able to rely upon the Guarantee for payment of such amounts.
Instead, in the event a Debenture Event of Default shall have occurred and be
continuing and such event is attributable to the failure of the Company to pay
principal of or interest on the Junior Subordinated Debt Securities on the
applicable payment date, then a holder of Capital Securities may institute a
Direct Action. Notwithstanding any payments made to a holder of Capital
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal of and interest on the Junior Subordinated
Debt Securities, and the Company shall be subrogated to the rights of the holder
of such Capital Securities with respect to payments on the Capital Securities to
the extent of any payments made by the Company to such holder in any Direct
Action. Except as described herein, holders of Capital Securities will not be
able to exercise directly any other remedy available to the holders of the
Junior Subordinated Debt Securities or assert directly any other rights in
respect of the Junior Subordinated Debt Securities. See "Description of Junior
Subordinated Debt Securities -- Enforcement of Certain Rights by Holders of
Capital Securities," "Description of Junior Subordinated Debt
Securities -- Debenture Events of Default" and "Description of Guarantee." The
Declaration provides that each holder of Capital Securities by acceptance
thereof agrees to the provisions of the Guarantee and the Indenture. Bankers
Trust Company will act as Guarantee Trustee under the Guarantee Agreement and
will hold the Guarantee for the benefit of the holders of the Capital
Securities. Bankers Trust Company will also act as Property Trustee under the
Declaration and as Debenture Trustee under the Indenture.
LIMITED VOTING RIGHTS
Holders of Capital Securities will generally have limited voting rights
relating only to the modification of the Capital Securities, the dissolution,
winding-up or liquidation of the Trust, and the exercise of the Trust's rights
as holder of Junior Subordinated Debt Securities. The right to vote to appoint,
remove or replace the Property Trustee or the Delaware Trustee is vested
exclusively in the holder of the Common Securities except upon the occurrence of
certain events described herein. The Property Trustee, the Administrative
Trustees and the Company may amend the Declaration without the consent of
holders of Capital Securities to ensure that the Trust will be classified for
United States federal income tax purposes as a grantor trust, even if such
action adversely affects the interests of such holders. See "Description of
Capital Securities -- Removal of Issuer Trustees" and "-- Voting Rights;
Amendment of the Declaration."
ABSENCE OF PUBLIC MARKET
There is no existing market for the Capital Securities and there can be no
assurance as to the liquidity of any markets that may develop for the Capital
Securities, the ability of the holders to sell their Capital Securities, or at
what price holders of the Capital Securities, will be able to sell their Capital
Securities, as the case may be. Future trading prices of the Capital Securities
will depend on many factors including, among other things, prevailing interest
rates, the Company's operating results and the market for similar securities.
The Underwriters have informed the Trust and the Company that the Underwriters
intend to make a market in the Capital Securities offered hereby; however, the
Underwriters are not obligated to do so and any such market making activity may
be terminated at any time without notice to the holders of the Capital
Securities.
11
<PAGE> 16
USE OF PROCEEDS
All of the proceeds from the sale of the Trust Securities will be invested
by the Trust in the Junior Subordinated Debt Securities. The Company intends to
apply the net proceeds from the sale of the Junior Subordinated Debt Securities
to its general funds to be used by its management for general corporate
purposes, including, from time to time, the redemption or the purchase, in the
open market or in privately negotiated transactions, of outstanding shares of
capital stock of the Company, and the making of advances to its subsidiaries. A
portion of such proceeds could be used in connection with one or more future
acquisitions. Pending such application by the Company, such net proceeds may be
invested in interest-bearing securities or equity securities, or used to reduce
short-term borrowings.
The Company is required by the Federal Reserve to maintain certain levels
of capital for bank regulatory purposes. On October 21, 1996, the Federal
Reserve announced that cumulative preferred securities having the
characteristics of the Capital Securities which qualify as a minority interest
could be included as Tier 1 capital for bank holding companies. Such Tier 1
capital treatment, together with the Company's ability to deduct, for income tax
purposes, interest payable on the Junior Subordinated Debt Securities, will
provide the Company with a more cost-effective means of obtaining capital for
regulatory purposes than other Tier 1 capital alternatives currently available
to it.
BANCORPSOUTH CAPITAL TRUST I
The Trust is a statutory business trust created under Delaware law pursuant
to (i) the original declaration of trust executed by the Company, as Depositor,
Bankers Trust (Delaware), as Delaware Trustee, and the Administrative Trustees
named therein, which original declaration of trust will be amended and restated
and executed by the Company, as Depositor, Bankers Trust Company, as Property
Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the Administrative
Trustees named therein (the "Declaration"), and (ii) the filing of a certificate
of trust with the Delaware Secretary of State on August 22, 1997. The Trust
exists for the exclusive purposes of (i) issuing and selling the Trust
Securities, (ii) using the proceeds from the sale of the Trust Securities to
acquire the Junior Subordinated Debt Securities and (iii) engaging in only those
other activities necessary, advisable or incidental thereto (such as registering
the transfer of the Capital Securities). Accordingly, the Junior Subordinated
Debt Securities will be the sole assets of the Trust, and payments under the
Junior Subordinated Debt Securities will be the sole revenues of the Trust. All
of the Common Securities will be owned directly by the Company, or indirectly
through a wholly-owned subsidiary of the Company. The Common Securities will
rank pari passu, and payments will be made thereon pro rata, with the Capital
Securities, except that upon the occurrence and continuance of an Event of
Default under the Declaration resulting from a Debenture Event of Default (or
other event that, with notice or the passage of time or both, would become such
an Event of Default), the rights of the Company as holder of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise will be subordinated to the rights of the holders of the
Capital Securities. See "Description of Capital Securities -- Subordination of
Common Securities." The Company will acquire Common Securities in an aggregate
Liquidation Amount equal to 3% of the total capital of the Trust. The Trust has
a term of 40 years, but may dissolve earlier as provided in the Declaration. The
Trust's business and affairs are conducted by its trustees, each appointed by
the Company as holder of the Common Securities. The trustees for the Trust will
be Bankers Trust Company, as the Property Trustee, Bankers Trust (Delaware), as
the Delaware Trustee, and two individual trustees as Administrative Trustees who
are employees or officers of or affiliated with the Company. Bankers Trust
Company, as Property Trustee, will act as sole indenture trustee under the
Declaration. Bankers Trust Company will also act as trustee under the Guarantee
Agreement and the Indenture. See "Description of Junior Subordinated Debt
Securities" and "Description of Guarantee." The holder of the Common Securities
of the Trust, or the holders of a majority in Liquidation Amount of the Capital
Securities if an Event of Default under the Declaration resulting from a
Debenture Event of Default has occurred and is continuing, will be entitled to
appoint, remove or replace the Property Trustee and/or Delaware Trustee. In no
event will the holders of the Capital Securities have the right to vote to
appoint, remove or replace the Administrative Trustees; such
12
<PAGE> 17
voting rights are vested exclusively in the holder of the Common Securities. The
duties and obligations of each Issuer Trustee are governed by the Declaration.
Pursuant to the expense provisions under the Indenture, the Company, as obligor
on the Junior Subordinated Debt Securities, will pay all fees and expenses
related to the Trust and the offering of the Capital Securities and will pay,
directly or indirectly, all ongoing costs, expenses and liabilities of the
Trust. See "Description of Capital Securities -- Expenses and Taxes." The
principal executive office of the Trust is c/o BancorpSouth, Inc., One
Mississippi Plaza, Tupelo, Mississippi 38801, Telephone: (601) 680-2000,
Attention: Cathy S. Freeman, Secretary.
BANCORPSOUTH
The Company is a bank holding company with financial services operations in
Mississippi and Tennessee principally through its wholly-owned subsidiary,
BancorpSouth Bank. At June 30, 1997, the Company and its subsidiaries had total
assets of approximately $3.82 billion and shareholders' equity of approximately
$346,000,000.
Through the Bank, the Company conducts a general commercial banking and
trust business through offices in communities throughout Mississippi as Bank of
Mississippi and throughout West Tennessee as Volunteer Bank. At August 26, 1997,
the Company had 93 branch offices located in Mississippi and 27 branch offices
located in Tennessee. The Company has grown through the acquisition of other
banks, the purchase of assets from federal regulators and through the opening of
new branches and offices. In addition, the Bank operates consumer finance and
credit life insurance subsidiaries.
The Company, through the Bank provides a range of financial services and
products to individuals and small-to-medium size businesses. Various types of
checking accounts, both interest bearing and non-interest bearing, are
available. Savings accounts and certificates of deposit with a range of
maturities and interest rates are available to meet the needs of customers.
Other services include safe deposit and night depository facilities. Limited
24-hour banking with automated teller machines is provided in most of the Bank's
principal markets. The Bank is an issuing bank for MasterCard and Visa, and
overdraft protection is available to approved cardholders maintaining checking
accounts with the Bank.
The Company offers a variety of services through the Bank's trust
department including personal trust and estate services, certain employee
benefit accounts and plans, including individual retirement accounts, and
limited corporate trust functions.
LENDING ACTIVITIES
The Company's lending activities include both commercial and consumer
loans. Loan originations are derived from a number of sources including real
estate broker referrals, mortgage loan companies, direct solicitation by the
Company's loan officers, present savers and borrowers, builders, attorneys,
walk-in customers and, in some instances, other lenders. The Company has
established disciplined and systematic procedures for approving and monitoring
loans that vary depending on the size and nature of the loan.
Commercial Lending
The Company offers a variety of commercial loan services including term
loans, lines of credit, equipment and receivable financing and agricultural
loans. A broad range of short-to-medium term commercial loans, both secured and
unsecured are made available to businesses for working capital (including
inventory and receivables), business expansion (including acquisition and
development of real estate and improvements), and the purchase of equipment and
machinery. At times, the Company also makes construction loans to real estate
developers for the acquisition, development and construction of residential
subdivisions.
13
<PAGE> 18
Commercial loans are granted based on the borrower's ability to generate
cash flow to support its debt obligations and other cash related expenses.
Commercial loans entail certain additional risks since they usually involve
large loan balances to single borrowers or a related group of borrowers,
resulting in a more concentrated loan portfolio. Further, because their payment
is usually dependent upon the successful operation of the commercial enterprise,
they also are subject to adverse conditions in the economy. A borrower's ability
to repay commercial loans is substantially dependent on the success of the
business itself and on the quality of its management. As a general practice, the
Company takes as collateral a security interest in any available real estate,
equipment, inventory, receivables or other personal property although such loans
may also be made infrequently on an unsecured basis. Generally, the Company
requires personal guaranties of its commercial loans to offset the risks
associated with such loans.
The Company has very little exposure as an agricultural lender. Crop
production loans are either fully supported by the collateral and financial
strength of the borrower or else a 90% loan guaranty is obtained through the
Farmers Home Administration on such loans.
Residential Consumer Lending
A portion of the Company's lending activities consists of the origination
of fixed and adjustable rate residential mortgage loans secured by
owner-occupied property. Home mortgage lending is unique in that a broad
geographic territory may be serviced by originators working from strategically
placed offices either within the Company's traditional banking facilities or
from affordable storefront locations in commercial buildings. In addition, the
Company offers construction loans, second mortgages, home improvement loans and
home equity lines of credit. The Company's banking subsidiary has received an
"outstanding" CRA rating from the Federal Deposit Insurance Corporation after
its most recent examination.
The Company finances the construction of individual, owner-occupied houses
on the basis of written underwriting and construction loan management
guidelines. First mortgage construction loans are made to solvent and competent
contractors for structures under development on both a pre-sold and a
"speculation" basis. Such loans are also made to qualified individual borrowers
and are generally supported by a take-out commitment from a permanent lender.
The Company makes residential construction loans to individuals who intend to
erect owner-occupied housing on a purchased parcel of real estate. The
construction phase of these loans has certain risks, including the viability of
the contractor, the contractor's ability to complete the project and changes in
interest rates.
In most cases, the Company will sell its mortgage loans of 15 or more years
in term in the secondary market. The sale to the secondary market allows the
Company to hedge against the interest rate risks related to such lending
operations. This arrangement allows the Company to accommodate the demand for
long-term financing while eliminating the interest rate risk for the 15 to 30
year period generally associated with such loans. After the sale of a loan, the
Company's only involvement is to act as a servicing agent.
The Company in most cases requires title, fire, extended casualty insurance
and, where required by applicable regulations, flood insurance to be obtained by
the borrower. The Company maintains its own errors and omissions insurance
policy to protect against loss in the event of failure of a mortgagor to pay
premiums on fire and other hazard insurance policies. Mortgage loans originated
by the Company customarily include a "due on sale" clause giving the Company the
right to declare a loan immediately due and payable in the event, among other
matters, that the borrower sells or otherwise disposes of the real property
subject to a mortgage. In general, the Company enforces due on sale clauses.
Borrowers are typically permitted to refinance or prepay loans at their option
without penalty.
14
<PAGE> 19
Non-Residential Consumer Lending
Non-residential consumer loans made by the Company include loans for
automobiles, recreation vehicles, boats and other personal purposes, personal
(secured and unsecured) and deposit account secured loans. In addition, the
Company provides federally insured or guaranteed student loans to students at
universities and community colleges in the Company's market areas. The Company
also conducts various indirect lending activities through established retail
companies in its market areas. Non-residential consumer loans are attractive to
the Company because they typically have a shorter term and carry higher interest
rates than that charged on other types of loans. Non-residential consumer loans,
however, do pose additional risks of collectability when compared to traditional
types of loans granted by commercial banks such as residential mortgage loans.
The Company also issues credit cards solicited on the basis of applications
received through referrals from the Company's bank branch networks. The Company
generally has a small portfolio of credit card receivables outstanding. Credit
card lines are underwritten using conservative credit criteria, including past
credit history and debt-to-income ratios, similar to the credit policies
applicable to other personal consumer loans.
Consumer loans are granted based on employment and financial information
solicited from prospective borrowers as well as credit records collected from
various reporting agencies. Stability of the borrower, willingness to pay and
credit history are the primary factors to be considered. The availability of
collateral is also a factor considered in making such a loan. The Company seeks
collateral that can be assigned and has good marketability with a clearly
adequate margin of value. The geographic area of the borrower is another
consideration, with preference given to borrowers in the Company's market area.
ASSET QUALITY
Management seeks to maintain a high quality of assets through conservative
underwriting and sound lending practices. Management intends to follow this
policy even though it may result in foregoing the funding of higher yielding
loans. While there is no assurance that the Company will not suffer losses on
its loans, management believes that the Company has in place adequate
underwriting and loan administration policies and personnel to manage the
associated risks prudently.
In an effort to maintain the quality of the loan portfolio, management
seeks to minimize higher risk types of lending. These loans include loans to
provide initial equity and working capital to new businesses with no other
capital strength, loans secured by unregistered stock, loans for speculative
transactions in stock, land or commodity markets, loans to borrowers or the
taking of collateral outside the Company's market area, loans dependent on
secondary liens as primary collateral, and non-recourse loans. In cases where
these loans are approved, additional precautions are generally taken in order to
reduce the Company's risk of loss.
The Board of Directors of the Company concentrates its efforts and
resources, and that of its management and lending officials, on loan review and
underwriting policies. Loan status and monitoring is handled through the
Company's Loan Administration Department. Weak financial performance is
identified and monitored using past due reporting, the internal loan rating
system, loan review reports, the various loan committee functions, and periodic
Asset Quality Rating Committee meetings. Senior loan officers have established a
review process with the objective of quickly identifying, evaluating, and
initiating necessary corrective action for substandard loans. The results of
loan reviews are reported to the audit committee of the Board of Directors.
Combined, these components are integral elements of the Company's loan program
which has resulted in its loan portfolio performance to date. Nonetheless,
management maintains a cautious outlook in anticipating the potential effects of
uncertain economic conditions (both locally and nationally) and the possibility
of more stringent regulatory standards.
15
<PAGE> 20
ALLOWANCE FOR LOAN LOSSES
The Company maintains disciplined and systematic procedures for the
collection of delinquent loan payments. When a borrower fails to make a required
payment on a loan, the Company attempts to have the deficiency cured by
communicating with the borrower. In most cases, deficiencies are cured promptly.
The account officer handles the administration of the loan throughout its term
and, depending on the size and complexity of the loan, the Loan Administration
Department may be involved in the work out of a problem loan as may be required
to resolve the problem in a way that assures that the Company's loss exposure is
minimized. If a delinquency is not cured, it is the Company's general policy to
institute appropriate legal action to collect the loan, including foreclosing on
any collateral securing the loan and obtaining a deficiency judgment against the
borrower, if appropriate. Loans are generally placed on nonaccrual status if, in
management's opinion, payment in full of principal and interest is not expected,
or when payment of principal or interest is more than 90 days past due, unless
the loan is both well-secured and in the process of collection.
In originating loans, the Company recognizes that credit losses will be
experienced and that the risk of loss will vary with, among other things, the
type of loan being made, the creditworthiness of the borrower over the term of
the loan and, in the case of a secured loan, the quality of the collateral for
the loan as well as general economic conditions. The Company has a disciplined
and systematic methodology which is employed in determining the appropriate
level for the allowance for loan and lease losses ("ALLL"). The Loan Reserve
Valuation Committee (the "Committee"), a committee of senior officers from the
Loan Administration, Lending and Finance Departments appointed by the Board of
Directors of the Company, reviews the adequacy of the ALLL. An amount is
provided as a charge against current income, based on the recommendation of the
Committee and senior management's approval, to maintain the ALLL at a level
sufficient to absorb possible losses inherent in the Company's loan portfolio.
This provision is determined after examining potential losses in specific
credits and considering the general risks associated with lending functions such
as current and anticipated economic conditions, business trends in the Company's
region and nationally, historical experience as related to losses, changes in
the mix of the loan portfolio and credits which bear substantial risk of loss
but which cannot be readily quantified.
A key factor in determining the amount of the ALLL is the Company's loan
classification system. The Company conducts periodic internal examinations of
its banking subsidiary's loan portfolio. In conducting such reviews, the Company
utilizes a rating system similar to the rating system used by the Federal
Deposit Insurance Corporation. The Company has a disciplined approach for
assigning credit ratings and classifications to individual credits. Each credit
is assigned a grade by the loan officer at origination which serves as a basis
for the credit analysis of the entire portfolio. Periodically, loan officers
review the status of each credit and update its grading. The gradings assigned
by the loan officer are reviewed by an independent Loan Review Department. The
Loan Review Department is responsible for reviewing the credit rating and
classification of individual credits. The department also assesses trends in the
overall portfolio, adherence to internal credit policies and loan administration
procedures and other factors which may affect the overall adequacy of the ALLL.
In addition to assessing loan quality, loan reviews include tracking loan
growth, deposit growth, past due statistics, charge-offs and recoveries, and
overdrafts. Loan operations, loan documentation, and loan compliance are also
examined in detail. The Loan Review Department reports its findings to the
Committee to consider in establishing the ALLL.
The Committee is responsible for ensuring that the ALLL provides coverage
of both known and inherent losses. The Committee meets at least quarterly to
determine the amount of additions to the ALLL. Management continues to actively
monitor the Company's asset quality and to charge off loans against the ALLL
when appropriate or to provide specific loan allowances when necessary. Although
management believes it uses the best information available to make
determinations with respect to the ALLL, future adjustments may be necessary if
economic conditions differ from the economic conditions in the assumptions used
in making the final determinations.
16
<PAGE> 21
SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION
The following unaudited summary sets forth certain historical consolidated
financial information for the Company and its subsidiaries for the periods
indicated. The financial information set forth below is derived from, and should
be read in conjunction with, the consolidated financial statements, and notes
thereto, of the Company which have been incorporated herein by reference. See
"Incorporation of Certain Information by Reference."
BANCORPSOUTH, INC.
SELECTED HISTORICAL FINANCIAL INFORMATION
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
-------------------------------------------------------------- -----------------------
1992 1993 1994 1995 1996 1996 1997
---------- ---------- ---------- ---------- ---------- ---------- ----------
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS) (UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
EARNINGS SUMMARY:
Interest revenue...... $ 202,920 $ 193,869 $ 207,895 $ 252,427 $ 277,919 $ 134,922 $ 149,268
Interest expense...... 92,143 78,715 85,029 114,457 126,505 61,483 69,249
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest
revenue............. 110,777 115,154 122,866 137,970 151,414 73,439 80,019
Provision for credit
losses.............. 12,843 9,032 5,946 6,206 8,804 4,504 3,649
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net interest revenue,
after provision for
credit losses....... 97,934 106,122 116,920 131,764 142,610 68,935 76,370
Other revenue......... 23,767 26,776 26,012 31,240 40,745 18,914 21,451
Other expense......... 89,779 93,176 99,372 111,750 118,472 56,445 62,303
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before income
taxes and effect of
accounting change... 31,922 39,722 43,560 51,254 64,883 31,404 35,518
Income taxes.......... 9,048 10,216 12,832 15,750 22,000 10,755 11,631
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income before effect
of accounting
change.............. 22,874 29,506 30,728 35,504 42,883 20,649 23,887
Cumulative effect of
change in accounting
for income taxes.... -- 3,429 -- -- -- -- --
---------- ---------- ---------- ---------- ---------- ---------- ----------
Net income... $ 22,874 $ 32,935 $ 30,728 $ 35,504 $ 42,883 $ 20,649 $ 23,887
========== ========== ========== ========== ========== ========== ==========
Weighted average
common shares
outstanding......... 17,420 19,858 20,373 21,105 21,213 21,217 22,475
Common shares
outstanding at
period end.......... 17,161 20,062 20,326 20,997 21,013 21,033 22,230
PER SHARE DATA:
Net Income............ $ 1.33 $ 1.49 $ 1.51 $ 1.69 $ 2.02 $ 0.97 $ 1.06
Cash dividends........ $ 0.51 $ 0.54 $ 0.555 $ 0.62 $ 0.70 $ 0.34 $ 0.38
Book value............ $ 10.56 $ 11.82 $ 12.44 $ 13.72 $ 15.01 $ 14.28 $ 15.57
BALANCE SHEET DATA (PERIOD END):
Available-for-Sale
securities.......... $ 125,559 $ 275,088 $ 194,029 $ 239,755 $ 230,739 $ 245,381 $ 321,361
Held-to-Maturity
securities.......... 504,545 389,653 552,832 439,303 530,066 492,303 574,341
Loans, net of unearned
discount and fees... 1,600,249 1,785,933 2,025,614 2,295,166 2,469,334 2,414,588 2,584,607
Allowance for credit
losses.............. 24,116 27,468 30,830 34,636 37,272 36,637 38,721
Intangibles........... N/A N/A 6,087 7,035 15,452 7,405 17,925
Total assets.......... 2,622,154 2,802,044 3,019,118 3,306,159 3,617,239 3,470,149 3,821,106
Deposits.............. 2,310,168 2,466,285 2,598,669 2,863,612 3,161,379 2,998,224 3,342,763
Debt.................. 32,309 31,101 67,416 73,624 55,778 81,688 48,928
Shareholders'
equity.............. $ 199,888 $ 233,168 $ 252,852 $ 288,095 $ 315,324 $ 300,371 $ 346,089
</TABLE>
17
<PAGE> 22
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
-------------------------------------------------------------------- --------------------------
1992 1993 1994 1995 1996 1996 1997
------------ ------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C> <C>
(IN THOUSANDS, EXCEPT RATIOS AND PER SHARE AMOUNTS) (UNAUDITED)
BALANCE SHEET DATA (AVERAGE):
Securities.............. $ 619,510 $ 651,492 $ 694,129 $ 700,315 $ 711,231 $ 694,916 $ 860,043
Loans, net of unearned
discount.............. 1,550,745 1,675,048 1,881,922 2,146,967 2,410,746 2,347,446 2,529,350
Total assets............ 2,503,499 2,659,785 2,884,539 3,151,297 3,452,921 3,378,313 3,760,026
Deposits................ 2,210,934 2,342,137 2,513,493 2,732,450 2,982,838 2,915,546 3,279,274
Total debt.............. 47,026 37,979 61,818 73,158 83,978 80,314 54,281
Shareholders' equity.... $ 185,925 $ 218,504 $ 240,929 $ 268,395 $ 299,749 $ 292,517 $ 335,672
SELECTED RATIOS:
Return on Average
Assets................ 0.91% 1.24% 1.07% 1.13% 1.24% 1.22% 1.27%
Return on Average
Shareholders' Equity.. 12.30% 15.07% 12.75% 13.23% 14.31% 14.12% 14.23%
Net Interest Margin..... 5.02% 4.89% 4.76% 4.86% 4.81% 4.84% 4.70%
Tier 1 Capital Ratio.... N/A N/A 11.31% 12.11% 12.14% 12.07% 12.69%
Risk Adjusted Capital
Ratio................. N/A N/A 13.94% 13.97% 13.39% 13.91% 13.94%
Leverage Ratio.......... N/A N/A 8.33% 8.56% 8.56% 8.44% 8.87%
Allowance for Credit
Losses to Net Loans... 1.51% 1.54% 1.52% 1.51% 1.51% 1.52% 1.50%
Allowance for Credit
Losses/ Nonperforming
Loans................. 113.17% 222.11% 381.04% 513.35% 422.20% 506.39% 467.19%
Net Charge-Offs to
Average Net Loans..... 0.63% 0.34% 0.14% 0.15% 0.26% 0.21% 0.22%
Nonperforming Assets to
Total Assets.......... 0.97% 0.50% 0.33% 0.28% 0.29% 0.28% 0.29%
</TABLE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
--------------------------------- ------------
1992 1993 1994 1995 1996 1996 1997
---- ----- ---- ---- ---- ---- -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges (excluding
interest on deposits)............................. 7.81x 10.76x 8.43x 7.91x 9.20x 8.89x 15.18x
Ratio of earnings to fixed charges (including
interest on deposits)............................. 1.35x 1.50x 1.51x 1.45x 1.51x 1.51x 1.51x
</TABLE>
18
<PAGE> 23
CAPITALIZATION
The following unaudited table sets forth (i) the consolidated
capitalization of BancorpSouth at June 30, 1997, and (ii) as adjusted for the
offering of the Capital Securities. This table is based on, and is qualified in
its entirety by, the historical consolidated financial statements of
BancorpSouth, including the related notes thereto, which are included in
documents incorporated by reference herein, and should be read in conjunction
therewith.
<TABLE>
<CAPTION>
JUNE 30, 1997
----------------------------------
AS ADJUSTED FOR CAPITAL
ACTUAL SECURITIES ISSUANCE
-------- -----------------------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Long-term Debt.............................................. $ 48,928 $ 48,928
Total Long-term Debt........................................ $ 48,928 $ 48,928
Company-Obligated Mandatorily Redeemable
Capital Securities of Subsidiary Trust(1)................. -- $ 75,000
Common Stock, $2.50 par value; Authorized -- 500,000,000
shares, Issued -- 22,395,975 shares....................... $ 55,990 $ 55,990
Additional Paid In Capital.................................. $ 95,804 $ 95,804
Retained Earnings........................................... $194,641 $194,641
Unrealized Gain on Available-For-Sale Securities, net of
tax....................................................... $ 3,137 $ 3,137
Unearned Compensation....................................... $ (413) $ (413)
Treasury Stock at Cost, 165,868 shares...................... $ (3,070) $ (3,070)
Total Shareholders' Equity.................................. $346,089 $346,089
Equity/Assets Ratio......................................... 9.06% 8.88%
Tier 1 Risk-Based Capital Ratio............................. 12.69% 15.41%
Total Risk-Based Capital Ratio.............................. 13.94% 16.66%
Leverage Capital Ratio...................................... 8.87% 10.63%
</TABLE>
- ---------------
(1) The "Company-Obligated Mandatorily Redeemable Capital Securities of
Subsidiary Trust" reflects the Capital Securities at their issue price. As
described herein, the sole assets of the Trust will be $75,000,000 of %
Junior Subordinated Debt Securities, which will mature on , 2027.
The Company owns all of the Common Securities of the Trust. It is
anticipated that the Trust will not be subject to the reporting requirements
under the Exchange Act.
(2) Assumes the proceeds from the issuance of Capital Securities are invested in
mortgage-backed securities which have a 20% risk weight.
19
<PAGE> 24
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated into the
Company's consolidated financial statements, with the Capital Securities treated
as minority interest and shown in the Company's consolidated balance sheet as
"Company-Obligated Mandatorily Redeemable Capital Securities of Subsidiary
Trust." The financial statement footnotes of the Company will reflect that the
sole asset of the Trust will be $75,000,000 principal amount of the Junior
Subordinated Debt Securities, bearing interest at % per annum and maturing on
, 2027. The Company will record Distributions payable on the Capital
Securities as interest expense in the Company's consolidated statements of
income. All future reports filed by the Company under the Exchange Act will
present information regarding the Trust and other similar trusts in the manner
described above.
DESCRIPTION OF CAPITAL SECURITIES
Pursuant to the terms of the Declaration, the Issuer Trustees on behalf of
the Trust will issue the Capital Securities and the Common Securities. The
Capital Securities will represent beneficial ownership interests in the Trust
and the holders thereof will be entitled to a preference in certain
circumstances with respect to Distributions and amounts payable on redemption of
the Trust Securities or liquidation of the Trust over the Common Securities, as
well as other benefits as described in the Declaration. See "-- Subordination of
Common Securities." The Declaration has been qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). By its terms, the
Declaration will incorporate certain provisions of the Trust Indenture Act, and
the Declaration will be subject to and governed by the Trust Indenture Act. This
summary of certain provisions of the Capital Securities, the Common Securities
and the Declaration does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all the provisions of the
Declaration, including the definitions therein of certain terms. The form of the
Declaration is available upon request from the Issuer Trustees.
GENERAL
The Capital Securities will be limited to $75,000,000 aggregate Liquidation
Amount at any one time outstanding. The Capital Securities will rank pari passu,
and payments will be made thereon pro rata, with the Common Securities except as
described under "-- Subordination of Common Securities." Legal title to the
Junior Subordinated Debt Securities will be held by the Property Trustee on
behalf of the Trust in trust for the benefit of the holders of the Capital
Securities and Common Securities. The Guarantee Agreement executed by the
Company for the benefit of the holders of the Capital Securities (the "Guarantee
Agreement") will provide for the Guarantee on a subordinated basis with respect
to the Capital Securities but will not guarantee payment of Distributions or
amounts payable on redemption of the Capital Securities or on liquidation of the
Trust when the Trust does not have funds on hand available to make such
payments. See "Description of Guarantee."
DISTRIBUTIONS
The Capital Securities represent beneficial ownership interests in the
Trust, and Distributions on each Capital Security will be payable at the annual
rate of % of the stated Liquidation Amount of $1,000, and will be payable
semi-annually in arrears on March and September of each year to the holders
of the Capital Securities at the close of business on the or
(each, a "record date"), as the case may be, next preceding the relevant
Distribution Date (as defined herein). Distributions on the Capital Securities
will be cumulative. Distributions will accumulate from the date of original
issuance. The first Distribution Date for the Capital Securities will be March
, 1998. The amount of Distributions payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which Distributions are payable on the Capital Securities is not a Business
Day (as defined herein), payment of the Distributions payable on such date will
be made on the next succeeding day that is a Business Day (and without any
additional Distributions or other payments in respect to any such delay) with
the same force and effect as if made on the date such payment was
20
<PAGE> 25
originally payable (each date on which Distributions are payable in accordance
with the foregoing, a "Distribution Date"). A "Business Day" shall mean any day
other than a Saturday or a Sunday, or 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 a day on which the corporate trust office of the Property Trustee or
the Debenture Trustee is closed for business.
So long as no Debenture Event of Default has occurred and is continuing,
the Company has the right under the Indenture to defer the payment of interest
on the Junior Subordinated Debt Securities at any time or from time to time for
a period not exceeding ten consecutive semi-annual periods with respect to each
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 election, semi-annual Distributions on the Capital Securities by the Trust
will be deferred during any such Extension Period. Distributions to which
holders of the Capital Securities are entitled will accumulate additional
Distributions thereon at the rate per annum of % thereof, compounded
semi-annually from the relevant payment date for such Distributions. The term
"Distributions" as used herein shall include any such additional Distributions.
During any such Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of, the Company (including Other
Debentures) that rank pari passu with or junior in interest to the Junior
Subordinated Debt Securities, or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company (including Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a shareholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the Guarantee, (d) purchases or acquisitions of shares of the Company's Common
Stock in connection with the satisfaction by the Company of its obligations
under any employee benefit plan or any other contractual obligation of the
Company (other than a contractual obligation ranking pari passu with or junior
to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, or (f) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
Prior to the termination of any such Extension Period, the Company may further
extend such Extension Period, provided that such extension does not cause such
Extension Period to exceed ten consecutive semi-annual periods or to extend
beyond the Stated Maturity of the Junior Subordinated Debt Securities. Upon the
termination of any such Extension Period and the payment of all amounts then
due, and subject to the foregoing limitations, the Company may elect to begin a
new Extension Period. The Company must give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election of any
such Extension Period at least five Business Days prior to the earlier of (i)
the date the Distributions on the Capital Securities would have been payable
except for the election to begin such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation
system or to holders of such Capital Securities of the record date or the date
such Distributions are payable, but in any event not less than five Business
Days prior to such record date. There is no limitation on the number of times
that the Company may elect to begin an Extension Period. See "Description of
Junior Subordinated Debt Securities -- Option to Extend Interest Payment Date"
and "Certain United States Federal Income Tax Consequences -- Interest Income
and Original Issue Discount."
The Company has no current intention of exercising its right to defer
payments of interest on the Junior Subordinated Debt Securities.
The revenue of the Trust available for distribution to holders of the
Capital Securities will be limited to payments under the Junior Subordinated
Debt Securities in which the Trust will invest the proceeds from
21
<PAGE> 26
the issuance and sale of the Trust Securities. See "Description of Junior
Subordinated Debt Securities -- General." If the Company does not make interest
payments on the Junior Subordinated Debt Securities, the Property Trustee will
not have funds available to pay Distributions on the Capital Securities. The
payment of Distributions (if and to the extent the Trust has funds legally
available for the payment of such Distributions and cash sufficient to make such
payments) is guaranteed by the Company on a limited basis as set forth herein
under "Description of Guarantee."
MANDATORY REDEMPTION
Upon the repayment in full at the Stated Maturity or a redemption at any
time in whole or in part of the Junior Subordinated Debt Securities (other than
following the distribution of the Junior Subordinated Debt Securities to the
holders of the Trust Securities), the proceeds from such repayment or redemption
shall be applied by the Property Trustee to redeem a Like Amount of Trust
Securities, upon not less than 30 nor more than 60 days' notice of a date of
redemption (the "Redemption Date"), at the applicable Redemption Price, which
shall be equal to (i) in the case of the repayment of the Junior Subordinated
Debt Securities at the Stated Maturity, the Maturity Redemption Price (equal to
the principal of, and accrued but unpaid interest on, the Junior Subordinated
Debt Securities), (ii) in the case of the redemption of the Junior Subordinated
Debt Securities prior to , 2007, in connection with the
occurrence of a Special Event, the Special Event Redemption Price (equal to the
Special Event Prepayment Price) or (iii) in the case of the optional redemption
of the Junior Subordinated Debt Securities on or after , 2007, the
Optional Redemption Price (equal to the Optional Prepayment Price). If less than
all of the Junior Subordinated Debt Securities are to be repaid or redeemed on a
Redemption Date, then the proceeds from such repayment or redemption shall be
allocated to the redemption pro rata of the Capital Securities and the Common
Securities (subject to the subordination provisions described under
"-- Subordination of Common Securities").
Redemption of the Junior Subordinated Debt Securities prior to Stated
Maturity may be subject to receipt of prior approval by the Regulatory
Authorities if then required under applicable capital guidelines or policies of
the Regulatory Authorities.
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay the
Additional Sums (as defined below) as additional amounts on the Junior
Subordinated Debt Securities. "Additional Sums" means the additional amounts as
may be necessary in order that the amount of Distributions then due and payable
by the Trust on the outstanding Capital Securities and Common Securities shall
not be reduced as a result of any additional taxes, duties and other
governmental charges to which the Trust has become subject as a result of a Tax
Event.
REDEMPTION PROCEDURES
Trust Securities shall be redeemed, if at all, at the applicable Redemption
Price with the proceeds from the contemporaneous repayment or redemption of the
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 on hand available for the
payment of such applicable Redemption Price. See also " -- Subordination of
Common Securities."
If the Trust gives a notice of redemption in respect of the Capital
Securities, then, by 12:00 noon, New York City time, on the Redemption Date, to
the extent funds are available, with respect to the Capital Securities held in
global form, the Property Trustee will deposit irrevocably with DTC funds
sufficient to pay the applicable Redemption Price and will give DTC irrevocable
instructions and authority to pay the applicable Redemption Price to the holders
of the Capital Securities. See "-- Form, Denomination, Book-Entry Procedures and
Transfer." With respect to the Capital Securities held in certificated form, the
Property Trustee, to the extent funds are available, will irrevocably deposit
with the paying agent for the Capital Securities funds sufficient to pay the
applicable Redemption Price and will give such paying agent irrevocable
instructions and authority to pay the applicable Redemption Price to the holders
thereof upon surrender of their certificates evidencing the Capital Securities.
See " -- Payment and Paying Agency."
22
<PAGE> 27
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date shall be payable to the holders of the Capital Securities 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 the holders of the Capital Securities will
cease, except the right of the holders of the Capital Securities to receive the
applicable Redemption Price, but without interest on such Redemption Price, and
the Capital Securities will cease to be outstanding. In the event that any date
fixed for redemption of Capital Securities is not a Business Day, then payment
of the applicable Redemption Price payable on such date will be made on the next
succeeding day which 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 the event that payment of the applicable Redemption
Price is improperly withheld or refused and not paid either by the Trust or by
the Company pursuant to the Guarantee as described under "Description of
Guarantee," Distributions on Capital Securities will continue to accrue at the
then applicable rate, from the Redemption Date originally established by the
Trust 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.
Subject to applicable law (including, without limitation, United States
federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Capital Securities by tender, in the open
market or by private agreement.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each holder of Trust Securities at its
registered address. Unless the Company defaults in payment of the applicable
Prepayment Price on, or in the repayment of, the Junior Subordinated Debt
Securities, on and after the Redemption Date, Distributions will cease to accrue
on the Trust Securities called for redemption.
LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Company will have the right at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust as provided by
applicable law, cause a Like Amount of the Junior Subordinated Debt Securities
to be distributed to the holders of the Trust Securities in liquidation of the
Trust; provided, however, that following such distribution of the Junior
Subordinated Debt Securities, the Company agrees to use its best efforts to
cause such Junior Subordinated Debt Securities to be rated by any nationally
recognized rating agency for so long as any such Junior Subordinated Debt
Securities are outstanding. Such right is subject to prior approval of the
Regulatory Authorities if then required under applicable capital guidelines or
policies of the Regulatory Authorities.
Upon liquidation of the Trust and certain other events, the Junior
Subordinated Debt Securities may be distributed to holders of the Capital
Securities. Under current United States federal income tax law, a distribution
of Junior Subordinated Debt Securities upon the dissolution of the Trust would
not be a taxable event to holders of the Capital Securities. If, however, the
Trust is characterized for United States federal income tax purposes as an
association taxable as a corporation at the time of dissolution of the Trust,
the distribution of the Junior Subordinated Debt Securities would constitute a
taxable event to holders of Capital Securities. Moreover, upon the occurrence of
a Special Event, a dissolution of the Trust in which holders of the Capital
Securities receive cash would be a taxable event to such holders. See "Certain
United States Federal Income Tax Consequences -- Distribution of Junior
Subordinated Debt Securities or Cash Upon Liquidation of the Trust."
The Trust shall automatically dissolve upon the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Company; (ii)
the distribution of a Like Amount of the Junior Subordinated Debt Securities to
the holders of the Trust Securities if the Company, as Depositor, has given
written direction to the Property Trustee to dissolve the Trust (which direction
is optional and, except as described above, wholly within the discretion of the
Company, as Depositor); (iii) redemption of all of the Trust Securities as
described under "-- Mandatory Redemption" above; (iv) expiration of the term of
23
<PAGE> 28
the Trust; and (v) the entry of an order for the dissolution of the Trust by a
court of competent jurisdiction.
If a dissolution occurs as described in clause (i), (ii), (iv) or (v) of
the immediately preceding paragraph, the Trust shall be liquidated by the Issuer
Trustees as expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the holders of such Trust Securities a Like
Amount of the Junior Subordinated Debt Securities, unless the Property Trustee
determines such distribution would not be practical, in which event such holders
will be entitled to receive out of the assets of the Trust available for
distribution to holders, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, an amount equal to the aggregate of the
Liquidation Amount plus accumulated and unpaid Distributions thereon to the date
of payment (such amount being the "Liquidation Distribution"). If such
Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable directly by the Trust on the Trust
Securities shall be paid on a pro rata basis. The holder(s) of the Common
Securities will be entitled to receive distributions upon any such liquidation
pro rata with the holders of the Capital 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 an Event of Default) has occurred and is continuing, the
Capital Securities shall have a priority over the Common Securities with respect
to any such Liquidation Distribution. See "-- Subordination of Common
Securities."
"Like Amount" means (i) 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 these relative Liquidation Amounts and the proceeds of which will be
used to pay the Redemption Price of such Trust Securities and (ii) with respect
to a distribution of Junior Subordinated Debt Securities to holders of Trust
Securities 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.
If the Company elects not to redeem the Junior Subordinated Debt Securities
prior to maturity and the Trust is not liquidated and the Junior Subordinated
Debt Securities are not distributed to holders of the Trust Securities, the
Capital Securities will remain outstanding until the repayment of the Junior
Subordinated Debt Securities at the Stated Maturity.
After the liquidation date fixed for any distribution of Junior
Subordinated Debt Securities to holders of the Trust Securities (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 of Trust Securities upon surrender of certificates representing Trust
Securities to the Administrative Trustees or their agent for exchange, (iii) any
certificates representing Capital Securities 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 certificates until such certificates are so surrendered (or until such
certificates are so surrendered, no payments of interest or principal will be
made to the holders of Trust Securities with respect to such Junior Subordinated
Debt Securities, and (iv) all rights of holders of Trust Securities shall cease,
except the right of such holders to receive Junior Subordinated Debt Securities
upon surrender of certificates representing Trust Securities.
There can be no assurance as to the market prices for the Capital
Securities or the Junior Subordinated Debt Securities that may be distributed in
exchange for the Trust Securities if a dissolution and liquidation of the Trust
were to occur. Accordingly, the Capital Securities that an investor may
purchase, or the Junior Subordinated Debt Securities that the investor may
receive on dissolution and liquidation of the Trust, may trade at a discount to
the price that the investor paid to purchase the Capital Securities offered
hereby.
24
<PAGE> 29
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, the Capital
Securities and Common Securities, as applicable, shall be made pro rata to the
holders of Capital Securities and Common Securities based on the Liquidation
Amount of the Trust Securities; provided, however, that if on any Distribution
Date or Redemption Date any Event of Default resulting from a Debenture Event of
Default (or an event that, with notice or passage of time or both, would become
such an Event of Default) or other Event of Default under the Declaration shall
have occurred and be continuing, no payment of any Distribution on, or
applicable 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 of the outstanding Capital
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 of the outstanding Capital Securities, shall have been
made or provided for, and all funds available to the Property Trustee shall
first be applied to the payment in full in cash of all Distributions on, or the
Redemption Price of, the Capital Securities then due and payable.
In the case of any Event of Default under the Declaration resulting from a
Debenture Event of Default, the Company as holder of the Common Securities will
be deemed to have waived any right to act with respect to any such Event of
Default under the Declaration until the effect of all such Events of Default
with respect to the Capital Securities have been cured, waived or otherwise
eliminated. Until all such Events of Default under the Declaration have been so
cured, waived or otherwise eliminated, the Property Trustee shall act solely on
behalf of the holders of such Capital Securities and not on behalf of the
Company as holder of the Common Securities, and only the holders of the Capital
Securities will have the right to direct the Property Trustee to act on their
behalf.
EVENTS OF DEFAULT; NOTICE
Any one of the following events constitutes an "Event of Default" under the
Declaration (an "Event of Default") (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):
(i) the occurrence of a Debenture Event of Default (see "Description
of Junior Subordinated Debt Securities -- Debenture Events of Default"); or
(ii) 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
(iii) default by the Trust in the payment of any Redemption Price of
any Trust Security when it becomes due and payable; or
(iv) default in the performance, or breach, in any material respect,
of any covenant or warranty of the Issuer Trustees in the Declaration
(other than a covenant or warranty, a default in the performance of which
or the breach of which is addressed in clause (ii) or (iii) 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 Issuer
Trustee or Issuer Trustees by the holders of at least 25% in aggregate
Liquidation Amount of the outstanding Capital 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" under the Declaration; or
(v) the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee and the failure by the Company to appoint a
successor Property Trustee within 60 days thereof.
Within five Business Days after the occurrence of any Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Event of Default to the holders of the Capital
25
<PAGE> 30
Securities, the Administrative Trustees and the Company, as Depositor, unless
such Event of Default shall have been cured or waived. The Company, as
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.
If a Debenture Event of Default (or an event that, with notice or passage
of time or both, would become such an Event of Default) or an Event of Default
has occurred and is continuing, the Capital Securities shall have a preference
over the Common Securities as described above. See "-- Liquidation of the Trust
and Distribution of Junior Subordinated Debt Securities" and "-- Subordination
of Common Securities."
REMOVAL OF ISSUER TRUSTEES
Unless a Debenture Event of Default shall have occurred and be continuing,
any Issuer Trustee may be removed at any time by the holder of the Common
Securities. If a Debenture Event of Default has occurred and is continuing, the
Property Trustee and the Delaware Trustee may be removed at such time by the
holders of a majority in Liquidation Amount of the outstanding Capital
Securities. In no event will the holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrative Trustees, which
voting rights are vested exclusively in the Company as the holder of the Common
Securities. No resignation or removal of an Issuer Trustee and no appointment of
a successor trustee shall be effective until the acceptance of appointment by
the successor trustee in accordance with the provisions of the Declaration.
CO-TRUSTEES AND SEPARATE PROPERTY 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's property
may at the time be located, the Company, as the holder of the Common Securities,
and the Administrative Trustees shall have power to appoint one or more persons
either to act as a co-trustee, jointly with the Property Trustee, of all or any
part of such Trust's property, or 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 such capacity any
property, title, right or power deemed necessary or desirable, subject to the
provisions of the Declaration. In case a Debenture Event of Default has occurred
and is continuing, the Property Trustee alone shall have power to make such
appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
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 person resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any person succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
Declaration, provided such person shall be otherwise qualified and eligible.
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 to any corporation or other person, except as described
below or as otherwise set forth in the Declaration. The Trust may, at the
request of the Company, as Depositor, with the consent of the Administrative
Trustees but without the consent of the holders of the Trust Securities, the
Property Trustee or the Delaware Trustee, merge with or into, consolidate,
amalgamate or be replaced by, or convey, transfer or lease all or substantially
all of its properties and assets 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
26
<PAGE> 31
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 Company 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 Capital 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 Capital
Securities are then listed or traded, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Capital Securities (including any Successor 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, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Company has received an opinion
from independent counsel to the Trust experienced in such matters 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 Investment Company Act and (viii) the Company 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.
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 entity 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.
VOTING RIGHTS; AMENDMENT OF THE DECLARATION
Except as provided below and under "Description of Guarantee -- Amendments
and Assignment" and as otherwise required by law and the Declaration, the
holders of the Capital Securities will have no voting rights.
The Declaration may be amended from time to time by the Company, the
Property Trustee and the Administrative Trustees, without the consent of the
holders of the Trust Securities, (i) to cure any ambiguity, correct or
supplement any provision in the Declaration that may be inconsistent with any
other provision, or to make any other provisions with respect to matters or
questions arising under the Declaration, which shall not be inconsistent with
the other provisions of the Declaration, or (ii) to modify, eliminate or add to
any provisions of the Declaration 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 Investment Company Act; provided, however, that in the case
of clause (i), such action shall not adversely affect in any material respect
the interests of any holder of Trust Securities, and any such amendments of the
Declaration shall become effective when notice thereof is given to the holders
of the Trust Securities. The Declaration may be amended by the Issuer Trustees
and the Company with (i) the consent of holders representing not less than a
majority (based upon Liquidation Amounts) of the outstanding Trust Securities,
and (ii) receipt by the Issuer Trustees of an opinion of counsel to the effect
that such amendment or the exercise of any power granted to the Issuer 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 as an "investment
27
<PAGE> 32
company" under the Investment Company Act; provided, however, that, without the
consent of each holder of Trust Securities, the Declaration 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 holder of Trust Securities to institute suit for the enforcement of
any such payment on or after such date.
So long as any Junior Subordinated Debt Securities are held by the Property
Trustee, the Issuer 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
the Junior Subordinated Debt Securities, (ii) waive any past default that 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 a majority in aggregate
Liquidation Amount of all outstanding Capital 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 consent of each holder
of the Capital Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Capital
Securities except by subsequent vote of such holders. The Property Trustee shall
notify each holder of Capital 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 such holders of the Capital
Securities, prior to taking any of the foregoing actions, the Issuer Trustees
shall 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.
Any required approval of holders of Capital Securities may be given at a
meeting of such holders convened for such purpose or pursuant to written
consent. The Property Trustee will cause a notice of any meeting at which
holders of Capital Securities are entitled to vote, or of any matter upon which
action by written consent of such holders is to be taken, to be given to each
holder of record of Capital Securities in the manner set forth in the
Declaration.
No vote or consent of the holders of Capital Securities will be required
for the Trust to redeem and cancel the Capital Securities in accordance with the
Declaration.
Notwithstanding that holders of the Capital Securities are entitled to vote
or consent under any of the circumstances described above, any of the Capital
Securities that are owned by the Company, the Issuer Trustees or any affiliate
of the Company or any Issuer Trustees, shall, for purposes of such vote or
consent, be treated as if they were not outstanding.
EXPENSES AND TAXES
In the Indenture, the Company, as borrower, has agreed to pay all debts and
other obligations (other than with respect to payments of Distributions, amounts
payable upon redemption and the Liquidation Amount of the Trust Securities) and
all costs and expenses of the Trust (including costs and expenses relating to
the organization of the Trust, the fees and expenses of the Issuer Trustees and
the costs and expenses relating to the operation of the Trust) and the offering
of the Capital Securities, and to pay any and all taxes and all costs and
expenses with respect to the foregoing (other than United States withholding
taxes) to which the Trust might become subject. The foregoing obligations of the
Company under the Indenture are for the benefit of, and shall be enforceable by,
any person to whom any such debts, obligations, costs, expenses and taxes are
owed (a "Creditor") whether or not such Creditor has received notice thereof.
Any such Creditor may enforce such obligations of the Company directly against
the Company, and the Company has irrevocably waived any right or remedy to
require that any such Creditor take any action against the Trust or any other
person before proceeding against the Company.
28
<PAGE> 33
The Company has also agreed in the Indenture to execute such additional
agreement(s) as may be necessary or desirable to give full effect to the
foregoing.
FORM, DENOMINATION, BOOK-ENTRY PROCEDURES AND TRANSFER
In the event that Capital Securities are issued in certificated form, such
Capital Securities will be in blocks having a Liquidation Amount of not less
than $1,000 (one Capital Security) and may be transferred or exchanged in such
blocks in the manner and at the offices described below.
The Capital Securities will be represented by one or more Capital
Securities in registered, global form (collectively, the "Global Capital
Securities"). The Global Capital Securities will be deposited upon issuance with
the Property Trustee as custodian for DTC, in New York, New York, and registered
in the name of DTC or its nominee, in each case for credit to an account of a
direct or indirect participant in DTC as described below.
Beneficial interests in the Global Capital Securities may not be exchanged
for Capital Securities in certificated form except in the limited circumstances
described below. See "-- Exchange of Book-Entry Capital Securities for
Certificated Capital Securities."
Transfer of beneficial interests in the Global Capital Securities will be
subject to the applicable rules and procedures of DTC and its direct or indirect
participants which may change from time to time.
Depositary Procedures
DTC has advised the Trust and the Company as follows: DTC is a limited
purpose trust company organized under the laws of the State of New York, a
member of the Federal Reserve, a "clearing corporation" within the meaning of
the Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participating organizations (collectively, the
"Participants") and to facilitate the clearance and settlement of transactions
in those securities between Participants through electronic book-entry changes
to accounts of its Participants, thereby eliminating the need for physical
movement of certificates. Participants include securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
Indirect access to DTC's system is also available to other entities such as
banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly
(collectively, the "Indirect Participants"). Persons who are not Participants
may beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest and transfer
of ownership interest of each actual purchaser of each security held by or on
behalf of DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised the Trust and the Company that, pursuant to procedures
established by it, (i) upon deposit of the Global Capital Securities, DTC will
credit the accounts of Participants designated by the Underwriters with portions
of the principal amount of the Global Capital Securities and (ii) ownership of
such interests in the Global Capital Securities will be shown on, and the
transfer of ownership thereof will be effected only through, records maintained
by DTC (with respect to the Participants) or by the Participants and the
Indirect Participants (with respect to other owners of beneficial interests in
the Global Capital Securities).
Investors in the Global Capital Securities may hold their interests therein
directly through DTC, if they are Participants in DTC, or indirectly through
organizations which are Participants in such system. All interests in a Global
Capital Security will be subject to the procedures and requirements of DTC. The
laws of some states require that certain persons take physical delivery in
certificated form. Consequently, the ability to transfer beneficial interests in
a Global Capital Security to such persons will be limited to that extent.
Because DTC can act only on behalf of Participants, which in turn act on behalf
of Indirect Participants and certain banks, the ability of a person having
beneficial interests in a Global Capital Security to pledge such interests to
persons or entities that do not participate in the DTC system, or
29
<PAGE> 34
otherwise take actions in respect of such interests, may be affected by the lack
of a physical certificate evidencing such interests. For certain other
restrictions on the transferability of the Capital Securities, see "-- Exchange
of Book-Entry Capital Securities for Certificated Capital Securities."
EXCEPT AS DESCRIBED BELOW, OWNERS OF BENEFICIAL INTERESTS IN THE GLOBAL
CAPITAL SECURITIES WILL NOT BE ENTITLED TO HAVE CAPITAL SECURITIES REGISTERED IN
THEIR NAMES, WILL NOT RECEIVE OR BE ENTITLED TO RECEIVE PHYSICAL DELIVERY OF
CAPITAL SECURITIES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE
REGISTERED OWNERS OR HOLDERS THEREOF UNDER THE DECLARATION FOR ANY PURPOSE.
Payments in respect of the Global Capital Security registered in the name
of DTC or its nominee will be payable by the Property Trustee to DTC or its
nominee as the registered holder under the Declaration by wire transfer in
immediately available funds on each interest payment date. Under the terms of
the Declaration, the Property Trustee will treat the persons in whose names the
Capital Securities, including the Global Capital Securities, are registered as
the owners thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. Consequently, neither the Property Trustee nor
any agent thereof has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect Participant's records
relating to, or payments made on account of, beneficial ownership interests in
the Global Capital Securities, or for maintaining, supervising or reviewing any
of DTC's records or any Participant's or Indirect Participant's records relating
to the beneficial ownership interests in the Global Capital Securities, or (ii)
any other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants. DTC has advised the Trust and the Company
that its current practice, upon receipt of any payment in respect of securities
such as the Capital Securities, is to credit the accounts of the relevant
Participants with the payment on the payment date, in amounts proportionate to
their respective holdings in Liquidation Amount of beneficial interests in the
Global Capital Security, as shown on the records of DTC, unless DTC has reason
to believe it will not receive payment on such payment date. Payments by the
Participants and the Indirect Participants to the beneficial owners of Capital
Securities represented by Global Capital Securities held through such
Participants will be governed by standing instructions and customary practices
and will be the responsibility of the Participants or the Indirect Participants
and will not be the responsibility of DTC, the Property Trustee or the Trust.
Neither the Trust nor the Property Trustee will be liable for any delay by DTC
or any of its Participants in identifying the beneficial owners of the Capital
Securities, and the Trust and the Property Trustee may conclusively rely on and
will be protected in relying on instructions from DTC or its nominee for all
purposes.
Interests in the Global Capital Securities will trade in DTC's Same-Day
Funds Settlement System and secondary market trading activity in such interests
will therefore settle in immediately available funds, subject in all cases to
the rules and procedures of DTC and its Participants. Transfers between
Participants in DTC will be effected in accordance with DTC's procedures, and
will be settled in same-day funds.
DTC has advised the Trust and the Company that it will take any action
permitted to be taken by a holder of Capital Securities (including, without
limitation, the presentation of Capital Securities for exchange as described
below) only at the direction of one or more Participants to whose account with
DTC interests in the Global Capital Securities are credited and only in respect
of such portion of the aggregate Liquidation Amount of the Capital Securities
represented by the Global Capital Securities as to which such Participant or
Participants has or have given such direction. However, if there is an Event of
Default, DTC reserves the right to exchange the Global Capital Securities for
legended Capital Securities in certificated form and to distribute such Capital
Securities to its Participants.
So long as DTC or its nominee is the registered owner of the Global Capital
Securities, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the Capital Securities represented by the Global Capital
Security for all purposes under the Declaration.
Neither DTC nor its nominee will consent or vote with respect to the
Capital Securities. Under its usual procedures, DTC 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 DTC or its
30
<PAGE> 35
nominee to those Participants (identified in a listing attached to such omnibus
proxy) to whose accounts the Capital Securities are credited on such record
date.
The information in this section concerning DTC and its book-entry system
has been obtained from sources that the Trust and the Company believe to be
reliable, but neither the Trust nor the Company takes responsibility for the
accuracy thereof.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interest in the Global Capital Securities among Participants in DTC, it is
under no obligation to perform or to continue to perform such procedures, and
such procedures may be discontinued at any time. Neither the Trust nor the
Property Trustee will have any responsibility for the performance by DTC or its
Participants or Indirect Participants of their respective obligations under the
rules and procedures governing their operations.
Exchange of Book-Entry Capital Securities for Certificated Capital Securities
A Global Capital Security is exchangeable for Capital Securities in
registered certificated form if (i) DTC (x) notifies the Trust that it is no
longer willing or able to properly discharge its responsibilities with respect
to the Capital Securities and the Company is unable to locate a qualified
successor, or (y) has ceased to be a "clearing agency" registered under the
Exchange Act; (ii) the Company at its option elects to terminate the book-entry
system through DTC; or (iii) there shall have occurred and be continuing a
Debenture Event of Default. In addition, beneficial interests in a Global
Capital Security may be exchanged by or on behalf of DTC for certificated
Capital Securities upon request by DTC, but only upon at least 20 days prior
written notice given to the Property Trustee in accordance with DTC's customary
procedures. In all cases, certificated Capital Securities delivered in exchange
for any Global Capital Security or beneficial interests therein will be
registered in the names, and issued in any approved denominations, requested by
or on behalf of DTC (in accordance with its customary procedures).
PAYMENT AND PAYING AGENCY
Payments in respect of the Capital Securities held in global form shall be
made to DTC, which shall credit the relevant accounts at DTC on the applicable
Distribution Dates or in respect of the Capital Securities that are not held by
DTC, such payments shall be made by check mailed to the address of the holder
entitled thereto as such address shall appear on the register. The paying agent
(the "Paying Agent") shall initially be the Property Trustee and any co-paying
agent chosen by the Property Trustee and acceptable to the Administrative
Trustees and the Company. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property Trustee, the
Administrative Trustees and the Company. In the event that the Property Trustee
shall no longer be the Paying Agent, the Administrative Trustees shall appoint a
successor (which shall be a bank or trust company acceptable to the
Administrative Trustees and the Company) to act as Paying Agent.
Bankers Trust Company has informed the Trust that so long as it serves as
Paying Agent for the Capital Securities, it anticipates that information
regarding Distributions on the Capital Securities, including payment date,
record date and redemption information, will be made available through Bankers
Trust Company at 1-800-735-7777.
REGISTRAR AND TRANSFER AGENT
The Property Trustee will act as registrar and transfer agent for the
Capital Securities.
Registration of transfers of the Capital Securities will be effected
without charge by or on behalf of the Trust, but upon payment of any tax or
other governmental charges that may be imposed in connection with any transfer
or exchange. The Trust will not be required to register or cause to be
registered the transfer of the Capital Securities after they have been called
for redemption.
31
<PAGE> 36
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of
an Event of Default, undertakes to perform only such duties as are specifically
set forth in the Declaration and, during the existence of an Event of Default,
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. Subject to this
provision, the Property Trustee is under no obligation to exercise any of the
powers vested in it by the Declaration at the request or direction of any holder
of Trust Securities unless it is offered security or indemnity satisfactory to
the Property Trustee against the costs, expenses and liabilities that might be
incurred thereby in compliance with such request or direction. If no Event of
Default has occurred and is continuing and the Property Trustee is required to
decide between alternative courses of action, construe ambiguous or inconsistent
provisions in the Declaration or is unsure of the application of any provision
of the Declaration, and the matter is not one on which holders of the Capital
Securities or the Common Securities are entitled under the Declaration to vote,
then the Property Trustee shall take such action as is directed by the Company
and, if not so directed, shall take such action as it deems advisable and in the
best interests of the holders of the Trust Securities and will have no liability
except for its own bad faith, negligence or willful misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Trust in such a way that the Trust will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes, and so that the Junior Subordinated Debt Securities will be treated as
indebtedness of the Company for United States federal income tax purposes. In
this connection, the Company and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of trust
of the Trust or the Declaration, that the Company and the Administrative
Trustees determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not materially adversely affect the
interests of the holders of the Trust Securities.
Holders of the Trust Securities have no preemptive or similar rights.
The Trust may not borrow money or issue debt or mortgage or pledge any of
its assets.
DESCRIPTION OF JUNIOR SUBORDINATED DEBT SECURITIES
The Junior Subordinated Debt Securities are to be issued as a separate
series under the Indenture. The Indenture has been qualified under the Trust
Indenture Act. By its terms, the Indenture will incorporate certain provisions
of the Trust Indenture Act, and will be subject to and governed by the Trust
Indenture Act. This summary of certain terms and provisions of the Junior
Subordinated Debt Securities and the Indenture does not purport to be complete,
and where reference is made to particular provisions of the Indenture, such
provisions, including the definitions of certain terms, some of which are not
otherwise defined herein, are qualified in their entirety by reference to all of
the provisions of the Indenture and those terms made a part of the Indenture by
the Trust Indenture Act.
GENERAL
Concurrently with the issuance of the Trust Securities, the Trust will
invest the proceeds thereof in Junior Subordinated Debt Securities issued by the
Company. The Junior Subordinated Debt Securities will bear interest at the
annual rate of % of the principal amount thereof, payable semi-annually in
arrears on March and September of each year (each, an "Interest Payment
Date"), commencing March , 1998, to the person in whose name each Junior
Subordinated Debt Security is registered, subject to certain exceptions, at the
close of business on the Business Day next preceding such Interest
32
<PAGE> 37
Payment Date. It is anticipated that, until the liquidation of the Trust, each
Junior Subordinated Debt Security will be held by the Trust for the benefit of
the holders of the Trust Securities. The amount of interest payable for any
period will be computed on the basis of a 360-day year of twelve 30-day months.
In the event that any date on which interest is payable on the Junior
Subordinated Debt Securities is not a Business Day, then payment of the interest
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),
with the same force and effect as if made on the date such payment was
originally payable. Accrued interest that is not paid on the applicable Interest
Payment Date will bear additional interest on the amount thereof (to the extent
permitted by law) at the rate per annum of % thereof, compounded semi-annually
from the relevant Interest Payment Date. The term "interest" as used herein
shall include semi-annual interest payments, interest on semi-annual interest
payments not paid on the applicable Interest Payment Date and Additional Sums,
as applicable.
The Junior Subordinated Debt Securities will be issued as a series of
Junior Subordinated Debt Securities under the Indenture. Unless previously
redeemed or repurchased, the Junior Subordinated Debt Securities will mature on
, 2027.
The Junior Subordinated Debt Securities will be unsecured and will rank
junior and be subordinate in right of payment to all Senior Debt. Because the
Company is a bank holding company, the right of the Company to participate in
any distribution of assets of any subsidiary, including the Bank, upon such
subsidiary's liquidation or reorganization or otherwise (and thus the ability of
holders of the Capital Securities to benefit indirectly from such distribution),
is subject to the prior claims of creditors of such subsidiary, except to the
extent that the Company may itself be recognized as a creditor of such
subsidiary. Accordingly, the Junior Subordinated Debt Securities will be
subordinated to all Senior Debt and effectively subordinated to all existing and
future liabilities of the Company's subsidiaries, and holders of Junior
Subordinated Debt Securities should look only to the assets of the Company for
payments on the Junior Subordinated Debt Securities. The Indenture does not
limit the incurrence or issuance of other secured or unsecured debt of the
Company, including Senior Debt, whether under the Indenture or any existing or
other indenture that the Company may enter into in the future or otherwise. See
"-- Subordination."
The Junior Subordinated Debt Securities will rank pari passu with all Other
Debentures issued under the Indenture and will be unsecured and subordinate and
junior in right of payment to the extent and in the manner set forth in the
Indenture to all Senior Debt of the Company. See "-- Subordination." The Company
is a non-operating holding company and almost all of the operating assets of the
Company and its consolidated subsidiaries are owned by such subsidiaries. The
Company relies primarily on dividends from such subsidiaries to meet its
obligations. The Company is a legal entity separate and distinct from the Bank
and its other current and future banking and non-banking affiliates. The Bank is
subject to certain restrictions imposed by federal and state law on any
extensions of credit to, and certain other transactions with, the Company and
certain other affiliates, and on investments in stock or other securities
thereof. Such restrictions prevent the Company and such other affiliates from
borrowing from such banks unless the loans are secured by various types of
collateral. In addition, payment of dividends to the Company by a bank
subsidiary is subject to ongoing review by banking regulators and is subject to
various statutory limitations and in certain circumstances requires approval by
banking regulatory authorities. The Other Debentures will be issuable in one or
more series pursuant to an indenture supplemental to the Indenture or a
resolution of the Company's Board of Directors or a committee thereof. See "Risk
Factors -- Ranking of Obligations Under the Guarantee and the Junior
Subordinated Debt Securities" and "Risk Factors -- Status of the Company as a
Bank Holding Company."
DENOMINATIONS, REGISTRATION AND TRANSFER
The Junior Subordinated Debt Securities will be represented by one or more
global certificates registered in the name of Cede & Co. as the nominee of DTC
if, and only if, distributed to the holders of the Trust Securities. Until such
time, the Junior Subordinated Debt Securities will be registered in the name of
the Trust and held by the Property Trustee. Should the Junior Subordinated Debt
Securities be
33
<PAGE> 38
distributed to holders of the Trust Securities, beneficial interests in the
Junior Subordinated Debt Securities will be shown on, and transfers thereof will
be effected only through, records maintained by Participants in DTC. Except as
described below, Junior Subordinated Debt Securities in certificated form will
not be issued in exchange for the global certificates.
A global security shall be exchangeable for Junior Subordinated Debt
Securities registered in the names of persons other than Cede & Co. only if (i)
DTC notifies the Company that it is unwilling or unable to continue as a
depositary for such global security and no successor depositary shall have been
appointed, or if at any time DTC ceases to be a "clearing agency" registered
under the Exchange Act, at a time when DTC is required to be so registered to
act as such depositary, (ii) the Company in its sole discretion determines that
such global security shall be so exchangeable, or (iii) there shall have
occurred and be continuing a Debenture Event of Default. Any global security
that is exchangeable pursuant to the preceding sentence shall be exchangeable
for certificates registered in such names as DTC shall direct. It is expected
that such instructions will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such global
security. In the event that Junior Subordinated Debt Securities are issued in
certificated form, such Junior Subordinated Debt Securities will be in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof and
may be transferred or exchanged only in such minimum denominations and in the
manner and at the offices described below.
Payments on Junior Subordinated Debt Securities represented by a global
security will be made to DTC, as the depositary for the Junior Subordinated Debt
Securities. In the event Junior Subordinated Debt Securities are issued in
certificated form, principal and interest will be payable, the transfer of the
Junior Subordinated Debt Securities will be registrable, and Junior Subordinated
Debt Securities will be exchangeable for Junior Subordinated Debt Securities of
other denominations of a like aggregate principal amount, at the corporate
office of the Debenture Trustee in New York, New York, or at the offices of any
paying agent or transfer agent appointed by the Company, provided that payment
of interest may be made at the option of the Company by check mailed to the
address of the persons entitled thereto or by wire transfer. In addition, if the
Junior Subordinated Debt Securities are issued in certificated form, the record
dates for payment of interest will be the first day of the last month of each
semi-annual period.
For a description of DTC and the terms of the depositary arrangements
relating to payments, transfers, voting rights, redemptions and other notices
and other matters, see "Description of Capital Securities -- Form, Denomination,
Book-Entry Procedures and Transfer." If the Junior Subordinated Debt Securities
are distributed to the holders of the Trust Securities upon the termination of
the Trust, the form, denomination, book-entry and transfer procedures with
respect to the Capital Securities as described under "Description of Capital
Securities -- Form, Denomination, Book-Entry Procedures and Transfer," shall
apply to the Junior Subordinated Debt Securities mutatis mutandis.
PAYMENT AND PAYING AGENTS
Payment of principal of (and premium, if any) and any interest on Junior
Subordinated Debt Securities will be made at the office of the Debenture Trustee
in New York, New York or at the office of such Paying Agent or Paying Agents as
the Company may designate from time to time, except that at the option of the
Company, payment of any interest may be made (except in the case of Junior
Subordinated Debt Securities in global form), (i) by check mailed to the address
of the person entitled thereto as such address shall appear in the register for
Junior Subordinated Debt Securities or (ii) by transfer to an account maintained
by the person entitled thereto as specified in such register, provided that
proper transfer instructions have been received by the relevant Record Date.
Payment of any interest on any Junior Subordinated Debt Security will be made to
the person in whose name such Junior Subordinated Debt Security is registered at
the close of business on the Record Date for such interest, except in the case
of defaulted interest. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent; however the Company will
at all times be required to maintain a Paying Agent in each Place of Payment for
the Junior Subordinated Debt Securities.
34
<PAGE> 39
Any moneys deposited with the Debenture Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Junior Subordinated Debt Security and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall (unless otherwise required by
mandatory provision of applicable escheat or abandoned or unclaimed property
law), at the request of the Company, be repaid to the Company and the holder of
such Junior Subordinated Debt Security shall thereafter look, as a general
unsecured creditor, only to the Company for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no Debenture Event of Default has occurred and is continuing,
the Company has the right under the Indenture to defer the payment of interest
at any time or from time to time for a period not exceeding ten consecutive
semi-annual periods with respect to each Extension Period; provided, however,
that no Extension Period may extend beyond the Stated Maturity of the Junior
Subordinated Debt Securities. At the end of an Extension Period, the Company
must pay all interest then accrued and unpaid on the Junior Subordinated Debt
Securities (together with interest thereon at the annual rate of %, compounded
semi-annually from the relevant Interest Payment Date, to the extent permitted
by applicable law). During an Extension Period, interest will continue to accrue
and holders of Junior Subordinated Debt Securities (and holders of the Capital
Securities while Capital Securities are outstanding) will be required to accrue
interest income (in the form of OID) for United States federal income tax
purposes. See "Certain United States Federal Income Tax Consequences -- Interest
Income and Original Issue Discount."
During any Extension Period, the Company may not (i) declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's capital stock, (ii)
make any payment of principal, interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company (including any Other
Debentures) that rank pari passu with or junior in interest to the Junior
Subordinated Debt Securities, or (iii) make any guarantee payments with respect
to any guarantee by the Company of the debt securities of any subsidiary of the
Company (including any Other Guarantees) if such guarantee ranks pari passu with
or junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a shareholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the Guarantee, (d) purchases or acquisitions of shares of the Company's Common
Stock in connection with the satisfaction by the Company of its obligations
under any employee benefit plan or any other contractual obligation of the
Company (other than a contractual obligation ranking pari passu with or junior
to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, or (f) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
Prior to the termination of any Extension Period, the Company may further extend
such Extension Period; provided, however, that such extension does not cause
such Extension Period to exceed ten consecutive semi-annual periods or to extend
beyond the Stated Maturity. Upon the termination of any Extension Period and the
payment of all interest then accrued and unpaid on the Junior Subordinated Debt
Securities (together with interest thereon at the annual rate of %, compounded
semi-annually, to the extent permitted by applicable law), the Company may elect
to begin a new Extension Period, subject to the above requirements. No interest
shall be due and payable during an Extension Period, except at the end thereof.
The Company must give the Property Trustee, the Administrative Trustees and the
Debenture Trustee notice of its election of any Extension Period (or an
extension thereof) at least five Business Days prior to the earlier of (i) the
date the Distributions on the Trust Securities would have been payable except
for the election to begin or extend such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation
system or to holders of Capital Securities of the record date or the date such
Distributions are payable,
35
<PAGE> 40
but in any event not less than five Business Days prior to such record date. The
Debenture Trustee shall give notice of the Company's election to begin or extend
a new Extension Period to the holders of the Capital Securities. There is no
limitation on the number of times that the Company may elect to begin an
Extension Period.
OPTIONAL REDEMPTION
The Junior Subordinated Debt Securities will be redeemable, in whole or in
part, at the option of the Company at any time on or after , 2007,
subject to the Company having received prior approval of the Regulatory
Authorities if then required under applicable capital guidelines or policies of
the Regulatory Authorities, at a redemption price (the "Optional Prepayment
Price") equal to the following prices, expressed in percentages of the principal
amount of the Junior Subordinated Debt Securities plus accrued and unpaid
interest to but excluding the date fixed for redemption. If redeemed during the
12-month period beginning :
<TABLE>
<CAPTION>
YEAR PERCENTAGE
- ---- ----------
<S> <C>
2007........................................................
2008........................................................
2009........................................................
2010........................................................
2011........................................................
2012........................................................
2013........................................................
2014........................................................
2015........................................................
2016........................................................
</TABLE>
and at 100% on or after , 2017.
SPECIAL EVENT PREPAYMENT
If a Special Event shall occur and be continuing, the Company may, at its
option and subject to receipt of prior approval of the Regulatory Authorities if
then required under applicable capital guidelines or policies of the Regulatory
Authorities, prepay the Junior Subordinated Debt Securities prior to
, 2007 within 90 days after the occurrence of such Special Event,
in whole, but not in part, at a prepayment price (the "Special Event Prepayment
Price") equal to 100% of the principal amount of such Junior Subordinated Debt
Securities plus accrued but unpaid interest to, but excluding the date fixed
for, redemption. See "Description of Capital Securities -- Liquidation of the
Trust and Distribution of Junior Subordinated Debt Securities."
"Special Event" means a Tax Event, an Investment Company Event or a
Regulatory Capital Event.
"Tax Event" means the receipt by the Company of an opinion of independent
counsel experienced in such matters to the effect that, as a result of any
amendment to, or change (including any announced proposed change) in, the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change is effective or which proposed
change, pronouncement or decision is announced on or after the Issue Date, there
is more than an insubstantial risk that (x) if the Junior Subordinated Debt
Securities are held by or on behalf of the Trust (i) the Trust is, or will be
within 90 days of the date of such opinion, subject to United States federal
income tax with respect to income received or accrued on the Junior Subordinated
Debt Securities, or subject to more than a de minimis amount of other taxes,
duties or other governmental charges as determined by such counsel, or (ii)
interest payable by the Company on the Junior Subordinated Debt Securities is
not, or within 90 days of the date of such opinion, will not be, deductible by
the Company, in whole or in part, for United States federal income tax purposes,
or
36
<PAGE> 41
(y) with respect to Junior Subordinated Debt Securities which are no longer held
by the Trust, any portion of interest payable by the Company on the Junior
Subordinated Debt Securities is not, or within 90 days of the date of such
opinion will not be, deductible by the Company for United States federal income
tax purposes.
An "Investment Company Event" means the receipt by the Company of an
opinion of counsel experienced in such matters to the effect that, as a result
of the occurrence of a change in law or regulation or a change (including an
announced prospective change) in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or will be
considered an "investment company" that is required to be registered under the
Investment Company Act, which change or prospective change becomes effective or
would become effective, as the case may be, on or after the date of issuance of
the Capital Securities.
A "Regulatory Capital Event" means that the Company shall have received an
opinion of independent bank regulatory counsel experienced in such matters to
the effect that, as a result of (a) any amendment to, or change (including any
announced prospective change) in the laws (or any regulations thereunder) of the
United States or any rules, guidelines or policies of the Federal Reserve or any
successor thereto having regulatory jurisdiction over the capital requirements
for the Company or (b) any official administrative pronouncement or judicial
decision interpreting or applying such laws or regulations, which amendment or
change is effective or such pronouncement or decision is announced on or after
the date of original issuance of the Capital Securities, the Capital Securities
do not constitute, or within 90 days of the date thereof, will not constitute,
Tier 1 capital (or its then equivalent); provided, however, that the
distribution of the Junior Subordinated Debt Securities in connection with the
liquidation of the Trust by the Company and the treatment thereafter of the
Junior Subordinated Debt Securities as other than Tier 1 capital shall not in
and of itself constitute a Regulatory Capital Event unless such liquidation
shall have occurred in connection with a Special Event.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each holder of Junior Subordinated Debt
Securities to be redeemed at its registered address. Unless the Company defaults
in payment of the Special Event Prepayment Price, on and after the prepayment
date interest ceases to accrue on the Junior Subordinated Debt Securities.
ADDITIONAL SUMS
If the Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event, the Company will pay as
additional amounts on the Junior Subordinated Debt Securities such amounts as
shall be required so that the Distributions payable by the Trust shall not be
reduced as a result of any such additional taxes, duties or other governmental
charges. The Company has covenanted in the Indenture that, if and so long as (i)
the Trust is the holder of all Junior Subordinated Debt Securities and (ii) a
Tax Event in respect of the Trust has occurred and is continuing, the Company
will pay Additional Sums to the Trust in respect of such Trust Securities.
RESTRICTIONS ON CERTAIN PAYMENTS
The Company will also covenant that, if at any time (i) there shall have
occurred a Debenture Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the Guarantee or (iii) the
Company shall have given notice of its election of an Extension Period as
provided in the Indenture and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing, then the
Company will not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any of
the Company's capital stock, (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities of the
Company (including Other Debentures) that rank pari passu with or junior in
interest to the Junior Subordinated Debt Securities, or (iii) make any guarantee
payments with respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company
37
<PAGE> 42
(including under Other Guarantees) if such guarantee ranks pari passu with or
junior in interest to the Junior Subordinated Debt Securities (other than (a)
dividends or distributions in Common Stock of the Company, (b) any declaration
of a dividend in connection with the implementation of a shareholders' rights
plan, or the issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c) payments under
the Guarantee, (d) purchases or acquisitions of shares of the Company's Common
Stock in connection with the satisfaction by the Company of its obligations
under any employee benefit plan or any other contractual obligation of the
Company (other than a contractual obligation ranking pari passu with or junior
in interest to the Junior Subordinated Debt Securities), (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock, or (f) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged).
MODIFICATION OF INDENTURE
From time to time the Company and the Debenture Trustee may, without the
consent of the holders of Junior Subordinated Debt Securities, amend, waive or
supplement the Indenture for specified purposes, including, among other things,
curing ambiguities, defects or inconsistencies (provided that any such action
does not materially adversely affect the interest of the holders of Junior
Subordinated Debt Securities or the holders of the Capital Securities so long as
they remain outstanding) and qualifying, or maintaining the qualification of,
the Indenture under the Trust Indenture Act. The Indenture contains provisions
permitting the Company and the Debenture Trustee, with the consent of the
holders of not less than a majority in principal amount of Junior Subordinated
Debt Securities, to modify the Indenture in a manner affecting the rights of the
holders of Junior Subordinated Debt Securities; provided, however, that no such
modification may, without the consent of the holder of each outstanding Junior
Subordinated Debt Security so affected, (i) change the Stated Maturity, or
reduce the principal amount of the Junior Subordinated Debt Securities, or
reduce the rate or extend the time of payment of interest thereon, (ii) reduce
the percentage of principal amount of Junior Subordinated Debt Securities, the
holders of which are required to consent to any such modification of the
Indenture, (iii) change certain provisions relating to the required consent of
such holders, or (iv) modify any provisions of the subordination arrangement in
a manner adverse to the holders.
In addition, the Company and the Debenture Trustee may execute, without the
consent of any holder of Junior Subordinated Debt Securities, any supplemental
Indenture for the purpose of creating any Other Debentures.
DEBENTURE EVENTS OF DEFAULT
The Indenture provides that any one or more of the following described
events with respect to the Junior Subordinated Debt Securities that has occurred
and is continuing constitutes a "Debenture Event of Default":
(i) failure for 30 days to pay any interest on the Junior Subordinated
Debt Securities when due (subject to the deferral of any due date in the
case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the Junior
Subordinated Debt Securities when due, whether at maturity, upon
redemption, by declaration of acceleration or otherwise; or
(iii) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or the holders of at least 25% in
aggregate outstanding principal amount of the Junior Subordinated Debt
Securities; or
(iv) certain events in bankruptcy, insolvency or reorganization of the
Company; or
38
<PAGE> 43
(v) the voluntary or involuntary dissolution, winding-up or
termination of the Trust, except in connection with the distribution of the
Junior Subordinated Debt Securities to the holder of Trust Securities in
liquidation of the Trust, the redemption of all of the Trust Securities of
the Trust, or certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
Subject to certain exceptions specified in the Indenture, the holders of a
majority in aggregate outstanding principal amount of the Junior Subordinated
Debt Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee. The
Debenture Trustee or the holders of not less than 25% in aggregate outstanding
principal amount of the Junior Subordinated Debt Securities may declare the
principal due and payable immediately upon a Debenture Event of Default and,
should the Debenture Trustee or such holders of Junior Subordinated Debt
Securities fail to make such declaration, the holders of at least 25% in
aggregate Liquidation Amount of the Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities may annul such declaration and waive the
default if the default (other than the non-payment of the principal of the
Junior Subordinated Debt Securities which has become due solely by such
acceleration) 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. Should the holders of Junior
Subordinated Debt Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
Capital Securities shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Junior Subordinated Debt Securities affected thereby may, on behalf of the
holders of all the Junior Subordinated Debt Securities, waive any past default,
except a default in the payment of principal of (or premium, if any) 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.
Should the holders of such Junior Subordinated Debt Securities fail to annul
such declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Capital Securities shall have such right. The Company
is required to file annually with the Debenture Trustee a certificate as to
whether or not the Company is in compliance with all the conditions and
covenants applicable to it under the Indenture.
In case a Debenture Event of Default shall occur and be continuing, the
Property Trustee will have the right to declare the principal of and the
interest on the Junior Subordinated Debt Securities, and any other amounts
payable under the Indenture, to be forthwith due and payable and to enforce its
other rights as a creditor with respect to the Junior Subordinated Debt
Securities.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF CAPITAL SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or principal
on the Junior Subordinated Debt Securities on the date such interest or
principal is otherwise payable, a holder of Capital Securities may institute a
Direct Action. The Company may not amend the Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent of the holders
of all of the Capital Securities. If the right to bring a Direct Action is
removed, the Trust may become subject to the reporting obligations under the
Exchange Act. Notwithstanding any payments made to a holder of Capital
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal of or interest on the Junior Subordinated
Debt Securities, and the Company shall be subrogated to the rights of the holder
of such Capital Securities with respect to payments on the Capital Securities to
the extent of any payments made by the Company to such holder in any Direct
Action.
The holders of the Capital Securities will not be able to exercise directly
any remedies, other than those set forth in the preceding paragraph, available
to the holders of the Junior Subordinated Debt
39
<PAGE> 44
Securities unless there shall have been an Event of Default under the
Declaration. See "Description of Capital Securities -- Events of Default;
Notice."
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company shall not consolidate with or merge
with or into any other person or convey, transfer or lease all or substantially
all of its properties and assets to any person, and no person shall consolidate
with or merge with or into the Company or convey, transfer or lease all or
substantially all of its properties and assets to the Company, unless (i) in
case the Company consolidates with or merges with or into another person or
conveys or transfers all or substantially all of its properties and assets to
any person, the successor person is a corporation, partnership, limited
liability company or trust organized under the laws of the United States or any
state or the District of Columbia, and such successor person expressly assumes
the Company's obligations on the Junior Subordinated Debt Securities issued
under the Indenture; (ii) immediately after giving effect thereto, no Debenture
Event of Default, and no event which, after notice or lapse of time or both,
would become a Debenture Event of Default, shall have occurred and be
continuing; (iii) if at any time any Capital Securities are outstanding, such
transaction is permitted under the Declaration and the Guarantee and does not
give rise to any breach or violation of the Declaration or the Guarantee; and
(iv) certain other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the Junior
Subordinated Debt Securities protection in the event of a highly leveraged or
other transaction involving the Company that may adversely affect holders of the
Junior Subordinated Debt Securities.
SUBORDINATION
In the Indenture, the Company has covenanted and agreed that any Junior
Subordinated Debt Securities issued thereunder shall be subordinate and junior
in right of payment to all Senior Debt to the extent provided in the Indenture.
Upon any payment or distribution of assets to creditors upon any liquidation,
dissolution, winding-up, reorganization, assignment for the benefit of
creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the holders of Senior Debt will first be
entitled to receive payment in full of principal of (and premium, if any) and
interest, if any, on such Senior Debt before the holders of Junior Subordinated
Debt Securities will be entitled to receive or retain any payment or
distribution in respect thereof; provided, however, that holders of Senior Debt
shall not be entitled to receive payment of any such amounts to the extent that
such holders would be required by the subordination provisions of such Senior
Debt to pay such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of business.
In the event of the acceleration of the maturity of the Junior Subordinated
Debt Securities, the holders of all Senior Debt outstanding at the time of such
acceleration will first be entitled to receive payment in full of all amounts
due thereon (including any amounts due upon acceleration) before the holders of
the Junior Subordinated Debt Securities will be entitled to receive or retain
any payment in respect of the principal of (or premium, if any) or interest, if
any, on the Junior Subordinated Debt Securities; provided, however, that holders
of Senior Debt shall not be entitled to receive payment of any such amounts to
the extent that such holders would be required by the subordination provisions
of such Senior Debt to pay such amounts over to the obligees on trade accounts
payable or other liabilities arising in the ordinary course of business.
In the event that the Company shall default in the payment of any principal
of (or premium, if any), or interest, if any, on any Senior Debt when the same
becomes due and payable, whether at maturity or at a date fixed for prepayment
or by declaration of acceleration or otherwise, then, unless and until such
default shall have been cured or waived or shall have ceased to exist or all
Senior Debt shall have been paid, no direct or indirect payment (in cash,
property, securities, by set-off or otherwise) shall be made or agreed to be
made for principal, premium, if any, or interest, if any, on the Junior
Subordinated Debt
40
<PAGE> 45
Securities, or in respect of any redemption, repayment, retirement, purchase or
other acquisition of any of the Junior Subordinated Debt Securities.
"Debt" means (i) the principal of (and premium, if any), and unpaid
interest on indebtedness for money borrowed, (ii) purchase money and similar
obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of such indebtedness
of others, (v) renewals, extensions and refunding of any such indebtedness, (vi)
interest or obligations in respect of any such indebtedness accruing after the
commencement of any insolvency or bankruptcy proceedings and (vii) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts and similar
arrangements; provided, however, that Debt shall not include trade accounts
payable or accrued liabilities in the ordinary course of business.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Company, whether incurred on or prior to the date of the Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Junior Subordinated Debt Securities or the
Other Debentures; provided, however, that Senior Debt shall not be deemed to
include (i) any Debt of the Company which, when incurred and without respect to
any election under Section 1111(b) of the United States Bankruptcy Code of 1978,
as amended, was without recourse to the Company, (ii) any Debt of the Company to
any of its subsidiaries, (iii) Debt to any employee of the Company, (iv) Debt
which by its terms is subordinated to trade accounts payable or accrued
liabilities arising in the ordinary course of business to the extent that
payments made to the holders of such Debt by the holders of the Junior
Subordinated Debt Securities as a result of the subordination provisions of the
Indenture would be greater than such payments otherwise would have been as a
result of any obligation of such holders of such debt to pay amounts over to the
obligees on such trade accounts payable or accrued liabilities arising in the
ordinary course of business as a result of subordination provisions to which
such Debt is subject, and (v) any other debt securities issued pursuant to the
Indenture.
The Indenture places no limitation on the amount of Senior Debt that may be
incurred by the Company. The Company may from time to time to incur additional
indebtedness constituting Senior Debt. At June 30, 1997, the Company had no
outstanding Senior Debt.
RESTRICTIONS ON TRANSFER
The Junior Subordinated Debt Securities will be issued, and may be
transferred only, in minimum denominations of not less than $1,000 and multiples
of $1,000 in excess thereof. Any transfer, sale or other disposition of Junior
Subordinated Debt Securities in a denomination of less than $1,000 shall be
deemed to be void and of no legal effect whatsoever. Any such transferee shall
be deemed not to be the holder of such Junior Subordinated Debt Securities for
any purpose, including but not limited to the receipt of payments on such Junior
Subordinated Debt Securities, and such transferee shall be deemed to have no
interest whatsoever in such Junior Subordinated Debt Securities.
GOVERNING LAW
The Indenture and the Junior Subordinated Debt Securities will be governed
by and construed in accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Debenture Trustee is under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of
41
<PAGE> 46
any holder of Junior Subordinated Debt Securities, unless offered reasonable
indemnity by such holder against the costs, expenses and liabilities which might
be incurred thereby. The Debenture Trustee is not required to expend or risk its
own funds or otherwise incur personal financial liability in the performance of
its duties if the Debenture Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it.
DESCRIPTION OF GUARANTEE
The Guarantee will be executed and delivered by the Company concurrently
with the issuance by the Trust of the Capital Securities for the benefit of the
holders from time to time of such Capital Securities. Bankers Trust Company will
act as trustee (the "Guarantee Trustee") under the Guarantee Agreement. The
Guarantee Agreement will be qualified under the Trust Indenture Act upon
effectiveness of the Registration Statement. This summary of certain provisions
of the Guarantee does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions of the
Guarantee, including the definitions therein of certain terms, and the Trust
Indenture Act. The Guarantee Trustee will hold the Guarantee for the benefit of
the holders of the Capital Securities.
GENERAL
The Company will irrevocably agree to pay in full on a subordinated basis,
to the extent set forth herein, the Guarantee Payments (as defined herein) to
the holders of the Capital Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that the Trust may have or assert
other than the defense of payment. The following payments with respect to the
Capital Securities, to the extent not paid by or on behalf of the Trust (the
"Guarantee Payments"), will be subject to the Guarantee: (i) any accrued and
unpaid Distributions required to be paid on the Capital Securities, to the
extent that the Trust has funds on hand available therefor at such time, (ii)
the applicable Redemption Price with respect to Capital Securities called for
redemption, to the extent that the Trust has funds on hand available therefor at
such time, or (iii) upon a voluntary or involuntary dissolution, winding up or
liquidation of the Trust (other than in connection with the distribution of
Junior Subordinated Debt Securities to the holders of the Capital Securities or
the redemption of all of the Capital Securities) the lesser of (a) the
Liquidation Distribution, to the extent the Trust has funds available therefor
and (b) the amount of assets of the Trust remaining available for distribution
to holders of the Capital Securities upon liquidation of the Trust after
satisfaction of liabilities to creditors of the Trust as required by applicable
law. The Company's obligation to make a Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of the
Capital Securities or by causing the Trust to pay such amounts to such holders.
The Guarantee will be an irrevocable guarantee on a subordinated basis of
the Trust's obligations under the Capital Securities, although it will apply
only to the extent that the Trust has funds sufficient to make such payments,
and is not a guarantee of collection. If the Company does not make interest
payments on the Junior Subordinated Debt Securities held by the Trust, the Trust
will not be able to pay Distributions on the Capital Securities and will not
have funds legally available therefor.
The Guarantee will rank subordinate and junior in right of payment to all
Senior Debt. See "-- Status of the Guarantee." Because the Company is a holding
company, the right of the Company to participate in any distribution of assets
of any subsidiary, upon such subsidiary's liquidation or reorganization or
otherwise, is subject to the prior claims of creditors of such subsidiary,
except to the extent the Company may itself be recognized as a creditor of that
subsidiary. Accordingly, the Company's obligations under the Guarantee will be
effectively subordinated to all existing and future liabilities of the Company's
subsidiaries, including deposits, and claimants should look only to the assets
of the Company for payments thereunder. See "BancorpSouth." The Guarantee does
not limit the incurrence or issuance of other secured or unsecured debt of the
Company, including Senior Debt, whether under the Indenture, any other indenture
that the Company may enter into in the future or otherwise.
42
<PAGE> 47
The Company has, through the Guarantee, the Declaration, the Junior
Subordinated Debt Securities and the Indenture, taken together, fully,
irrevocably and unconditionally guaranteed all of the Trust's obligations under
the Capital Securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Capital Securities. See "Relationship Among the
Capital Securities, the Junior Subordinated Debt Securities and the Guarantee."
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all Senior Debt in the
same manner as Junior Subordinated Debt Securities.
The Guarantee will rank pari passu with all Other Guarantees issued by the
Company. The Guarantee will constitute a guarantee of payment and not of
collection (i.e., the guaranteed party may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity). The
Guarantee will be held for the benefit of the holders of the Capital Securities.
The Guarantee will not be discharged except by payment of the Guarantee Payments
in full to the extent not paid by the Trust or upon distribution to the holders
of the Capital Securities of the Junior Subordinated Debt Securities. The
Guarantee does not place a limitation on the amount of additional Senior Debt
that may be incurred by the Company. The Company may from time to time to incur
additional indebtedness constituting Senior Debt.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Capital Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of not less than a majority of the aggregate Liquidation Amount of such
outstanding Capital Securities. The manner of obtaining any such approval will
be as set forth under "Description of Capital Securities -- Voting Rights;
Amendment of the Declaration." All guarantees and agreements contained in the
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Company and shall inure to the benefit of the holders of
the Capital Securities then outstanding.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder; provided,
however, that except with respect to a default in payment of any Guarantee
Payment, the Company shall have received notice of default and shall not have
cured such default within 60 days after receipt of such notice. The holders of
not less than a majority in aggregate Liquidation Amount of the Capital
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of the
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under the Guarantee.
Any holder of the Capital Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Trust, the Guarantee Trustee or
any other person or entity.
The Company, as guarantor, is required to file annually with the Guarantee
Trustee a certificate as to whether or not the Company is in compliance with all
the conditions and covenants applicable to it under the Guarantee.
43
<PAGE> 48
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Guarantee provides that the Company shall not assign its obligations
under the Guarantee except in connection with a consolidation, merger or sale
involving the Company that is permitted under the Indenture and pursuant to
which the assignee agrees in writing to perform the obligations of the Company
under the Guarantee. See "Description of Junior Subordinated Debt
Securities -- Consolidation, Merger, Sale of Assets and Other Transactions."
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company on any of its payments or other obligations under the
Guarantee Agreement (subject to certain notice to the Company and an opportunity
to cure such default, and the occurrence of an event of default under the
Indenture or Declaration), undertakes to perform only such duties as are
specifically set forth in the Guarantee and, during the occurrence and
continuance of such an event of default under the Guarantee, must exercise the
same degree of care and skill as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs. Subject to this
provision, the Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by the Guarantee at the request of any holder of the Capital
Securities unless it is offered security and indemnity reasonably satisfactory
to the Guarantee Trustee against the costs, expenses and liabilities that might
be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the applicable Redemption Price of the Capital Securities, upon
full payment of the amounts payable upon liquidation of the Trust or upon
distribution of Junior Subordinated Debt Securities to the holders of the
Capital Securities. The Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the Capital
Securities must restore payment of any sums paid under the Capital Securities or
the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBT SECURITIES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on the Capital Securities
(to the extent the Trust has funds available for the payment of such
Distributions) are irrevocably guaranteed by the Company as and to the extent
set forth under "Description of Guarantee." Taken together, the Company's
obligations under the Junior Subordinated Debt Securities, the Indenture, the
Declaration and the Guarantee provide, in the aggregate, a full, irrevocable and
unconditional guarantee of payments of Distributions and other amounts due on
the Capital Securities. If and to the extent that the Company does not make
payments on the Junior Subordinated Debt Securities, the Trust will not pay
Distributions or other amounts due on the Capital Securities. The Guarantee does
not cover payment of Distributions when the Trust does not have sufficient funds
to pay such Distributions. In such event, the remedy of a holder of Capital
Securities is to institute a Direct Action. The obligations of the Company under
the Guarantee are subordinate and junior in right of payment to all Senior Debt.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Junior Subordinated Debt Securities, such payments will be sufficient to cover
Distributions and other payments due on the Capital Securities, primarily
because (i) the aggregate principal amount or Prepayment Price of the
44
<PAGE> 49
Junior Subordinated Debt Securities will be equal to the sum of the aggregate
Liquidation Amount or Redemption Price, as applicable, of the Trust Securities;
(ii) the interest rate and interest and other payment dates on the Junior
Subordinated Debt Securities will match the Distribution rate and Distribution
and other payment dates for the Capital Securities; (iii) the Company shall pay
for all costs, expenses and liabilities of the Trust except the Trust's
obligations to holders of Trust Securities under such Trust Securities; and (iv)
the Declaration further provides that the Trust will not engage in any activity
that is not consistent with the limited purposes thereof.
ENFORCEMENT RIGHTS OF HOLDERS OF CAPITAL SECURITIES
A holder of any Capital Security may institute a legal proceeding directly
against the Company to enforce its rights under the Guarantee without first
instituting a legal proceeding against the Guarantee Trustee, the Trust or any
other person or entity.
A default or event of default under any Senior Debt would not constitute a
default or Event of Default under the Declaration. However, in the event of
payment defaults under, or acceleration of, Senior Debt, the subordination
provisions of the Indenture provide that no payments may be made in respect of
the Junior Subordinated Debt Securities until such Senior Debt has been paid in
full or any payment default thereunder has been cured or waived. Failure to make
required payments on Junior Subordinated Debt Securities would constitute an
Event of Default under the Declaration.
LIMITED PURPOSE OF THE TRUST
The Capital Securities evidence a beneficial interest in the Trust, and the
Trust exists for the sole purpose of issuing the Capital Securities and Common
Securities, investing the proceeds of the Trust Securities in Junior
Subordinated Debt Securities and engaging in other activities necessary or
incidental thereto.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution, winding-up or liquidation of
the Trust involving the liquidation of the Junior Subordinated Debt Securities,
after satisfaction of the liabilities of creditors of the Trust as required by
applicable law, the holders of the Trust Securities will be entitled to receive,
out of assets held by the Trust, the Liquidation Distribution in cash. See
"Description of Capital Securities -- Liquidation of the Trust and Distribution
of Junior Subordinated Debt Securities." Upon any voluntary or involuntary
liquidation or bankruptcy of the Company, the Property Trustee, as holder of the
Junior Subordinated Debt Securities, would be a subordinated creditor of the
Company, subordinated in right of payment to all Senior Debt as set forth in the
Indenture, but entitled to receive payment in full of principal and interest,
before any shareholders of the Company receive payments or distributions. Since
the Company is the guarantor under the Guarantee and has agreed to pay for all
costs, expenses and liabilities of the Trust (other than the Trust's obligations
to the holders of its Trust Securities), the positions of a holder of Capital
Securities and a holder of Junior Subordinated Debt Securities relative to other
creditors and to shareholders of the Company in the event of liquidation or
bankruptcy of the Company are expected to be substantially the same.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
In the opinion of Waller Lansden Dortch & Davis, A Professional Limited
Liability Company, special tax counsel to the Company and the Trust ("Tax
Counsel"), the following summary accurately describes certain of the material
United States federal income tax consequences that may be relevant to the
purchase, ownership and disposition of Capital Securities. Unless otherwise
stated, this summary deals only with Capital Securities held as capital assets
by United States Holders (as defined below) who purchase the Capital Securities
upon original issuance at their original offering price. As used herein, a
"United States Holder" means (i) a person that is a citizen or resident of the
United States, (ii) a corporation, or other entity taxable as a corporation
created or organized in or under the laws of the United States or any political
subdivision thereof, (iii) an estate the income of which is subject to United
45
<PAGE> 50
States federal income taxation regardless of its source, or (iv) a trust the
income of which is subject to United States federal income tax regardless of its
source; provided, however, that for taxable years beginning after December 31,
1996 (or if a trustee so elects, for taxable years ending after August 20,
1996), a "United States Holder" shall include any trust if a court within the
United States is able to exercise primary supervision over the administration of
such trust and one or more United States fiduciaries have the authority to
control all the substantial decisions of such trust. The tax treatment of a
holder may vary depending on his, her or its particular situation. This summary
does not address all the tax consequences that may be relevant to a particular
holder or to holders who may be subject to special tax treatment, such as banks,
real estate investment trusts, regulated investment companies, insurance
companies, dealers in securities or currencies, tax-exempt investors or persons
that will hold the Capital Securities as a position in a "straddle," as part of
a "synthetic security" or "hedge," as part of a "conversion transaction" or
other integrated investment, or as other than a capital asset. In addition, this
summary does not include any description or any alternative minimum tax
consequences or the tax laws of any state, local or foreign government that may
be applicable to a holder of Capital Securities. This summary is based on the
Internal Revenue Code of 1986, as amended (the "Code"), the Treasury regulations
promulgated thereunder and administrative and judicial interpretations thereof,
as of the date hereof, all of which are subject to change, possibly on a
retroactive basis. The authorities on which this summary is based are subject to
various interpretations and the opinions of Tax Counsel are not binding on the
Internal Revenue Service (the "IRS") or the courts, either of which could take a
contrary position. Moreover, no rulings have been or will be sought from the IRS
with respect to the transactions described herein.
HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE CAPITAL
SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES FEDERAL OR OTHER
TAX LAWS. FOR A DISCUSSION OF THE POSSIBLE REDEMPTION OF THE CAPITAL SECURITIES
UPON THE OCCURRENCE OF CERTAIN TAX EVENTS SEE "DESCRIPTION OF CAPITAL SECURITIES
- -- LIQUIDATION OF THE TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED DEBT
SECURITIES."
CLASSIFICATION OF THE JUNIOR SUBORDINATED DEBT SECURITIES
In connection with the issuance of the Junior Subordinated Debt Securities,
Tax Counsel is of the opinion that, under current law, and based on certain
representations, facts and assumptions set forth in such opinion, the Junior
Subordinated Debt Securities will be classified as indebtedness for United
States federal income tax purposes. The Company, the Trust and the holders of
the Capital Securities (by acceptance of a beneficial interest in a Capital
Security) will agree to treat the Junior Subordinated Debt Securities as
indebtedness for all United States federal income tax purposes.
CLASSIFICATION OF THE TRUST
In connection with the issuance of the Capital Securities, Tax Counsel is
of the opinion that, under current law and assuming full compliance with the
terms of the Declaration and other documents, and based upon certain facts and
assumptions contained in such opinion, the Trust will be classified as a grantor
trust for United States federal income tax purposes and not as an association
taxable as a corporation. Accordingly, for United States federal income tax
purposes, each holder of Capital Securities generally will be considered the
owner of an undivided interest in the Junior Subordinated Debt Securities and,
thus, will be required to include in its gross income its allocable share of
interest (or OID) on the Junior Subordinated Debt Securities.
INTEREST INCOME AND ORIGINAL ISSUE DISCOUNT
Under applicable Treasury regulations, a debt instrument will be deemed to
be issued with OID if there is more than a remote contingency that periodic
stated interest payments due on the instrument will not be timely paid. The
Company believes that the likelihood of its exercising the option is remote
within
46
<PAGE> 51
the meaning of such regulations. See "Description of Capital
Securities -- Distributions" and "Description of Junior Subordinated Debt
Securities -- Option to Extend Interest Payment Date." As a result, the Company
intends to take the position, based on the advice of Tax Counsel, that the
Junior Subordinated Debt Securities will not be deemed to be issued with OID.
Accordingly, based upon this position, and except as set forth below, stated
interest on the Junior Subordinated Debt Securities generally will be taxable to
a United States Holder as ordinary income at the time it is paid or accrued in
accordance with such United States Holder's regular method of tax accounting.
If, however, the Company exercises its right to defer payments of interest
on the Junior Subordinated Debt Securities, the Junior Subordinated Debt
Securities will become OID instruments at such time and, consequently, United
States Holders of the Capital Securities, regardless of their regular method of
tax accounting, will be required to accrue their pro rata share of OID (which
will include both the stated interest and the de minimis OID, if any, on the
Junior Subordinated Debt Securities) on a daily basis during the Extension
Period, even though the Company will not pay such interest until the end of the
Extension Period, and even though some United States Holders may use the cash
method of tax accounting. Moreover, thereafter the Junior Subordinated Debt
Securities will be taxed as OID instruments for as long as they remain
outstanding. Thus, even after the end of an Extension Period, all United States
Holders would be required to continue to include their pro rata share of OID on
the Junior Subordinated Debt Securities in income on a daily basis, regardless
of their regular method of tax accounting and in advance of the receipt of the
cash attributable to such interest income. Under the OID economic accrual rules,
a United States Holder would accrue an amount of interest income each year that
approximates the stated interest payments called for under the terms of the
Junior Subordinated Debt Securities, and actual cash payments of interest on the
Junior Subordinated Debt Securities would not be reported separately as taxable
income. Any amount of OID included in a United States Holder's gross income
(whether or not during an Extension Period) with respect to a Capital Security
will increase such United States Holder's tax basis in such Capital Security,
and the amount of Distributions received by a United States Holder in respect of
such accrued OID will reduce the tax basis of such Capital Security.
The Treasury regulations described above have not yet been addressed in any
rulings or other interpretations by the IRS, and it is possible that the IRS
could take a contrary position. If the IRS were to assert successfully that the
stated interest on the Junior Subordinated Debt Securities was OID regardless of
whether the Company exercises its option to defer payments of interest on such
debt securities, all United States Holders of Capital Securities would be
required to include such OID in income on a daily economic accrual basis as
described above.
Because income on the Capital Securities will constitute interest or OID,
corporate holders of Capital Securities will not be entitled to a
dividends-received deduction with respect to any income recognized by such
holders with respect to the Capital Securities.
DISTRIBUTION OF JUNIOR SUBORDINATED DEBT SECURITIES OR CASH UPON LIQUIDATION OF
THE TRUST
As described under the caption "Description of the Capital
Securities -- Liquidation of the Trust and Distribution of Junior Subordinated
Debt Securities," Junior Subordinated Debt Securities may be distributed to
United States Holders in exchange for the Capital Securities and in liquidation
of the Trust. Under current law, such a distribution would be non-taxable and
will result in the holder receiving directly its pro rata share of the Junior
Subordinated Debt Securities previously held indirectly through the Trust, with
a holding period and aggregate tax basis equal to the holding period and
aggregate tax basis such holder had in its Capital Securities before such
distribution. If, however, the liquidation of the Trust were to occur because
the Trust is subject to United States federal income tax with respect to income
accrued or received on the Junior Subordinated Debt Securities, the distribution
of the Junior Subordinated Debt Securities to holders would be a taxable event
to the Trust and to each United States Holder, and a United States Holder would
recognize gain or loss as if the holder had exchanged its Capital Securities for
the Junior Subordinated Debt Securities it received upon liquidation of the
Trust. Moreover, a United States Holder's holding period in the Junior
Subordinated Debt Securities would begin on the date such Junior Subordinated
Debt Securities were received.
47
<PAGE> 52
A United States Holder would accrue interest in respect of the Junior
Subordinated Debt Securities received from the Trust in the manner described
above under " -- Interest Income and Original Issue Discount."
Under certain circumstances described herein (see "Description of Capital
Securities -- Mandatory Redemption"), the Junior Subordinated Debt Securities
may be redeemed for cash, with the proceeds of such redemption distributed to
United States Holders in redemption of their Capital Securities. Under current
law, such a redemption would constitute a taxable disposition of the redeemed
Capital Securities for United States federal income tax purposes, and a United
States Holder would recognize gain or loss as if it sold such redeemed Capital
Securities for cash. See " -- Sales of Capital Securities."
SALES OF CAPITAL SECURITIES
A United States Holder that sells Capital Securities (including a
redemption of Capital Securities by the Company) will recognize gain or loss
equal to the difference between the amount realized by such United States Holder
on the sale of the Capital Securities (except to the extent that such amount
realized is characterized as a payment in respect of accrued but unpaid interest
on such United States Holder's allocable share of the Junior Subordinated Debt
Securities that the holder had not included in gross income previously) and the
holder's adjusted tax basis in the Capital Securities sold or redeemed. Such
gain or loss generally will be a capital gain or loss, and generally will be a
long-term capital gain or loss if the Capital Securities have been held for more
than one year (and such gain will be subject to a reduced rate applicable to
non-corporate taxpayers if held for more than 18 months). Subject to certain
limited exceptions, capital losses cannot be applied to offset ordinary income
for United States federal income tax purposes.
NON-UNITED STATES HOLDERS
As used herein, the term "Non-United States Holder" means any person that
is not a United States Holder. As discussed above, the Capital Securities will
be treated as evidence of an indirect beneficial ownership interest in the
Junior Subordinated Debt Securities. See "-- Classification of the Trust." Thus
under current United States federal income tax law, and subject to the
discussion below concerning backup withholding:
(a) no withholding of United States federal income tax will be
required with respect to the payment by the Company or any paying agent of
principal or interest (which for purposes of this discussion includes any
OID) on the Junior Subordinated Debt Securities to a Non-United States
Holder, provided (i) that the beneficial owner of the Capital Securities
("Beneficial Owner") does not actually or constructively own 10% or more of
the total combined voting power of all classes of stock of the Company
entitled to vote within the meaning of section 871(h)(3) of the Code and
the regulations thereunder, (ii) the Beneficial Owner is not a controlled
foreign corporation that is related to the Company through stock ownership,
and (iii) of the Beneficial Owner satisfies the statement requirement
(described generally below) set forth in section 871(h) and section 881(c)
of the Code and the regulations thereunder; and
(b) no withholding of United States federal income tax will be
required with respect to any gain realized by a Non-United States Holder
upon the sale or other disposition of the Capital Securities.
To satisfy the requirement referred to in (a)(iii) above, the Beneficial
Owner, or a financial institution holding the Capital Securities on behalf of
such owner, must provide, in accordance with specified procedures, to the Trust
or its paying agent, a statement to the effect that the Beneficial Owner is not
a United States Holder. Pursuant to current temporary Treasury regulations,
these requirements will be met if (1) the Beneficial Owner provides his name and
address, and certifies, under penalties of perjury, that it is not a United
States person (which certification may be made on an IRS Form W-8 (or successor
form)) or (2) a financial institution holding the Capital Securities on behalf
of the Beneficial Owner certifies, under penalties of perjury, that such
statement has been received by it and furnishes a paying agent with a copy
thereof.
48
<PAGE> 53
If a Non-United States Holder cannot satisfy the requirements of the
"portfolio interest" exception described in (a) above, payments of interest made
to such Non-United States Holder will be subject to a 30% withholding tax unless
the Beneficial Owner provides the Company or its paying agent, as the case may
be, with a properly executed (1) IRS Form 1001 (or successor form) claiming an
exemption from, or a reduction of, such withholding tax under the benefit of a
tax treaty or (2) IRS Form 4224 (or successor form) stating that interest paid
on the Junior Subordinated Debt Securities is not subject to withholding tax
because it is effectively connected with the Beneficial Owner's conduct of a
trade or business in the United States.
If a Non-United States Holder is engaged in a trade or business in the
United States and interest on the Junior Subordinated Debt Securities is
effectively connected with the conduct of such trade or business, the Non-United
States Holder, although exempt from the withholding tax discussed above, will be
subject to United States federal income tax on such interest on a net income
basis in the same manner as if it were a United States Holder. In addition, if
such Non-United States Holder is a foreign corporation, it may be subject to a
branch profits tax equal to 30% of its effectively connected earnings and
profits for the taxable year, subject to adjustments. For this purpose, such
interest income would be included in such foreign corporation's earnings and
profits.
Any gain realized upon the sale or other disposition of the Capital
Securities generally will not be subject to United States federal income tax
unless (i) such gain is effectively connected with a trade or business in the
United States of the Non-United States Holder, (ii) in the case of a Non-United
States Holder who is an individual, such individual is present in the United
States for 183 days or more in the taxable year of such sale, exchange or
retirement, and certain other conditions are met, or (iii) in the case of any
gain representing accrued interest on the Junior Subordinated Debt Securities,
the requirements described above are not satisfied.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Income on the Capital Securities held of record by United States Holders
(other than corporations and other exempt holders) will be reported annually to
such holders and to the IRS. The Administrative Trustees currently intend to
deliver such reports to holders of record prior to January 31 following each
calendar year. It is anticipated that persons who hold Capital Securities as
nominees for beneficial holders will report the required tax information to
beneficial holders on Form 1099.
"Backup withholding" at a rate of 31% will apply to payments of interest to
non-exempt United States Holders unless the holder furnishes its taxpayer
identification number in the manner prescribed in applicable Treasury
regulations, certifies that such number is correct, certifies as to no loss of
exemption from backup withholding and meets certain other conditions. No
information reporting or backup withholding will be required with respect to
payments made by the Trust or any paying agent to Non-United States Holders if a
statement described in (a)(iv) under "Non-United States Holders" has been
received and the payor does not have actual knowledge that the beneficial owner
is a United States person.
In addition, backup withholding and information reporting will not apply if
payments of the principal, interest, OID or premium on the Junior Subordinated
Debt Securities are paid or collected by a foreign office of a custodian,
nominee or other foreign agent on behalf of the Beneficial Owner, or if a
foreign office of a broker (as defined in applicable Treasury regulations) pays
the proceeds of the sale of the Capital Securities to the owner thereof. If,
however, such nominee, custodian, agent or broker is, for United States federal
income tax purposes, a United States person, a controlled foreign corporation or
a foreign person that derives 50% or more of its gross income for certain
periods from the conduct of a trade or business in the United States, such
payments will not be subject to backup withholding but will be subject to
information reporting, unless (1) such custodian, nominee, agent or broker has
documentary evidence in its records that the Beneficial Owner is not a United
States person and certain other conditions are met or (2) the Beneficial Owner
otherwise establishes an exemption.
49
<PAGE> 54
Payment of the proceeds from disposition of Capital Securities to or
through a United States office of a broker is subject to information reporting
and backup withholding unless the holder or Beneficial Owner establishes an
exemption from information reporting and backup withholding.
Any amounts withheld from a holder of the Capital Securities under the
backup withholding rules will be allowed as a refund or a credit against such
holder's United States federal income tax liability, provided the required
information is furnished to the IRS.
CERTAIN ERISA CONSIDERATIONS
The Company and other affiliates of the Company may each be considered a
"party in interest" (within the meaning of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")) or a "disqualified person" (within
the meaning of Section 4975 of the Code) with respect to many employee benefit
plans ("Plans") that are subject to ERISA. The purchase of Capital Securities by
a Plan that is subject to the fiduciary responsibility provisions of ERISA or
the prohibited transaction provisions of Section 4975 of the Code (including
individual retirement arrangements and other plans described in Section
4975(e)(1) of the Code) and with respect to which the Company or any other
affiliate of the Company is a service provider (or otherwise is a party in
interest or a disqualified person) may constitute or result in a prohibited
transaction under ERISA or Section 4975 of the Code, unless such Capital
Securities are acquired pursuant to and in accordance with an applicable
exemption. Any pension or other employee benefit plan proposing to acquire any
Capital Securities should consult with its counsel to determine if the
prohibited transaction rules of ERISA or the Code prohibit the acquisition, or
if there is an exemption which would permit the acquisition, and if the
acquisition is otherwise prudent for the Plan.
50
<PAGE> 55
UNDERWRITING
Subject to the terms and conditions set forth in the underwriting agreement
with respect hereto (the "Underwriting Agreement"), the Trust has agreed to sell
to each of the Underwriters named below (the "Underwriters"), and each of the
Underwriters has severally agreed to purchase, the Liquidation Amount of Capital
Securities set forth opposite its name below:
<TABLE>
<CAPTION>
UNDERWRITERS LIQUIDATION AMOUNT
- ------------ ------------------
<S> <C>
Salomon Brothers Inc........................................ $
-----------
Keefe, Bruyette & Woods, Inc................................
-----------
Total............................................. $75,000,000
===========
</TABLE>
In the Underwriting Agreement, the several Underwriters have agreed,
subject to the terms and conditions set forth therein, to purchase all the
Capital Securities offered hereby if any Capital Securities are purchased. In
the even of, default by an Underwriter, the Underwriting Agreement provides that
in certain circumstances the Underwriting Agreement may be terminated.
The Company has been advised by the Underwriters that they propose
initially to offer the Capital Securities to the public at the public offering
price set forth on the cover page of this Prospectus, and to certain dealers at
such price less a concession of not more than % of the principal amount of the
Capital Securities. The Underwriters may allow and such dealers may reallow a
concession of not more than % of the principal amount of the Capital
Securities to certain other dealers. After the initial public offering, the
public offering price and such concessions may be changed.
The Company has been advised by the Underwriters that they intend to make a
market in the Capital Securities, but that they are not obligated to do so and
may discontinue making a market at any time without notice. The Company
currently has no intention to list the Capital Securities on any securities
exchange, and there can be no assurance given as to the liquidity of the trading
market for the Capital Securities.
The Underwriting Agreement provides that the Company will indemnify the
several Underwriters against certain civil liabilities, including liabilities
under the Securities Act, or contribute to payments which the Underwriters may
be required to make in respect thereof.
Certain Underwriters and their affiliates have from time to time provided,
and may in the future provide, investment banking and commercial banking
services to the Company, for which they received or will receive customary fees.
Salomon Brothers Inc, on behalf of the Underwriters, may engage in
stabilizing and syndicate covering transactions in accordance with Rule 104
under the Exchange Act. Rule 104 permits stabilizing bids to purchase the
underlying security so long as the stabilizing bids do not exceed a specified
maximum. Syndicate covering transactions involve purchases of the Capital
Securities in the open market after the distribution has been completed in order
to cover syndicate short positions. Stabilizing and syndicate covering
transactions may cause the prices of the Capital Securities to be higher than
they would otherwise be in the absence of such transactions. These transactions,
if commenced, may be discontinued at any time.
LEGAL MATTERS
Certain matters of Delaware law relating to the validity of the Capital
Securities, the enforceability of the Declaration and the creation of the Trust
will be passed upon by Richard, Layton & Finger, Wilmington, Delaware, special
counsel to the Trust and the Company. The validity of the Guarantee and the
Junior Subordinated Debt Securities and certain matters relating to United
States federal income tax considerations will be passed upon for the Company by
Waller Lansden Dortch & Davis, A Professional Limited Liability Company,
Nashville, Tennessee. Certain legal matters concerning this offering will be
51
<PAGE> 56
passed upon on behalf of the Company by Riley, Ford, Caldwell & Cork, P.A.,
Tupelo, Mississippi. Frank A. Riley, a shareholder of such firm, is a director
of the Company. Certain legal matters will be passed upon for the Underwriters
by Cravath, Swaine & Moore, New York, New York. Cravath, Swaine & Moore will
rely on the opinion of Richard, Layton & Finger, Wilmington, Delaware, as to
matters of Delaware law.
EXPERTS
The Consolidated Financial Statements of the Company, as of December 31,
1996, and for each of the years in the three-year period ended December 31,
1996, have been incorporated by reference in this Prospectus and in the
Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of such firm as experts in accounting and auditing.
52
<PAGE> 57
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN
THOSE CONTAINED IN OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, ANY SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED
BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY BY ANYONE
IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR
SOLICITATION IS NOT QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM
IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL,
UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE
HEREOF.
------------------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................. 2
Incorporation of Certain Information
by Reference........................ 2
Summary............................... 4
Risk Factors.......................... 7
Use of Proceeds....................... 12
BancorpSouth Capital Trust I.......... 12
BancorpSouth.......................... 13
Selected Historical Consolidated
Financial Information............... 17
Ratio of Earnings to Fixed Charges.... 18
Capitalization........................ 19
Accounting Treatment.................. 20
Description of Capital Securities..... 20
Description of Junior Subordinated
Debt Securities..................... 32
Description of Guarantee.............. 42
Relationship Among the Capital
Securities, the Junior Subordinated
Debt Securities and the Guarantee... 44
Certain United States Federal Income
Tax Consequences.................... 45
Certain ERISA Considerations.......... 50
Underwriting.......................... 51
Legal Matters......................... 51
Experts............................... 52
</TABLE>
$75,000,000
BANCORPSOUTH CAPITAL
TRUST I
% CAPITAL TRUST PASS-THROUGH
SECURITIES(R) (TRUPS(R))
(LIQUIDATION AMOUNT $1,000 PER
CAPITAL SECURITY)
FULLY AND UNCONDITIONALLY GUARANTEED,
AS DESCRIBED HEREIN, BY
BANCORPSOUTH, INC.
SALOMON BROTHERS INC
KEEFE, BRUYETTE & WOODS, INC.
PROSPECTUS
DATED , 1997
<PAGE> 58
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses of this offering, which are to be paid by the Company, are
estimated as follows:
<TABLE>
<S> <C>
Commission Registration Fee................................. $ 22,728
Legal Fees and Expenses..................................... 280,000
Auditors' Fees and Expenses................................. 30,000
Transfer Agent and Registrar Fees........................... 5,000
Printing Expenses........................................... 100,000
Miscellaneous Expenses...................................... 37,272
--------
Total............................................. $475,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Articles VIII and IX of the Company's Restated Articles of Incorporation,
as amended, provide as follows:
ARTICLE VIII
ELIMINATION OF CERTAIN LIABILITY OF DIRECTORS
A director of the Company shall not be personally liable to the Company or
its shareholders for money damages for any action taken, or any failure to take
action, as a director, except for liability for:
(i) the amount of a financial benefit received by a director to which
he is not entitled;
(ii) an intentional infliction of harm on the Company or the
shareholders;
(iii) a violation of Section 79-4-8.33 of the Mississippi Business
Company Act (the "Act"); or
(iv) an intentional violation of criminal law.
If the Act is amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability of a director
of the Company shall be eliminated or limited to the fullest extent permitted by
the Act, as so amended. Any repeal or modification of the provisions of this
Article 8 by the shareholders shall not adversely affect any right or protection
of a director of the Company existing at the time of such repeal or
modification.
ARTICLE IX
INDEMNIFICATION
(a) The Company shall indemnify, and upon request shall advance expenses
prior to final disposition of a proceeding to, any person (or the estate or
personal representative of any person) who was or is a party to, or is
threatened to be made a party to, any threatened, pending or completed action,
suit or proceeding, whether or not by or in the right of the Company, and
whether civil, criminal, administrative, investigative or otherwise, by reason
of the fact that such person is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of another corporation,
partnership, joint venture, trust, employee benefit plan or other enterprise,
against any liability incurred in the action, suit or proceeding: (i) to the
full extent permitted by Section 79-4-8.51 of the Act, and (ii) despite the fact
that such person has not met the standard of conduct set forth in Section
79-4-8.51(a) of the Act or would be disqualified for indemnification under
Section 79-4-8.51(d) of the Act, if a determination is made by a
II-1
<PAGE> 59
person or persons enumerated in Section 79-4-8.55(b) of the Act that (A) the
director, officer, employee or agent is fairly and reasonably entitled to
indemnification in view of all of the relevant circumstances, and (B) the acts
or omissions of the officer, employee or agent did not constitute gross
negligence or willful misconduct. A request for reimbursement or advancement of
expenses prior to final disposition of the proceeding need not be accompanied by
the affirmation required by Section 79-4-8.53(1) of the Act, but the remaining
provisions of Section 79-4-8.53 of the Act shall be applicable to any such
request. The Company may, to the full extent permitted by law, purchase and
maintain insurance on behalf of any such person against any liability which may
be asserted against him or her.
(b) The rights to indemnification and advancement of expenses set forth in
Subsection (a) of this Article 9 are intended to be greater than those which are
otherwise provided for in the Act, are contractual between the Company and the
person being indemnified, and the heirs, executors and administrators of such
person, and in this respect are mandatory, notwithstanding a person's failure to
meet the standard of conduct required for permissive indemnification under the
Act, as amended from time to time. The rights to indemnification and advancement
of expenses set forth in Subsection (a) of this Article 9 shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancements of expenses may be entitled or granted by law, these Articles of
incorporation, the Bylaws, a resolution of the Board of Directors, vote of the
shareholders of the Company, or an agreement with the Company, which means of
indemnification and advancement of expenses are hereby specifically authorized.
Any repeal or modification of the provisions of this Article 9 shall not affect
any obligations of the Company or any rights regarding indemnification and
advancement of expenses of a director, officer, employee or agent with respect
to any threatened, pending or completed action, suit or proceeding for which
indemnification or the advancement of expenses is requested, in which the
alleged cause of action accrued at any time prior to such repeal or
modification. If an amendment to the Act hereafter limits or restricts in any
way the indemnification rights permitted by law as of the date hereof, such
amendment shall apply only to the extent mandated by law and only to activities
of persons subject to indemnification under this Article 9 which occur
subsequent to the effective date of such amendment.
(c) If this Article 9 or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify each director, officer, employee or agent of the Company
as to any liability incurred or other amounts paid with respect to any
proceeding, including, without limitation, a grand jury proceeding and any
proceeding by or in the right of the Company, to the fullest extent permitted by
any applicable portion of this Article 9 that shall not have been invalidated,
by the Act, or by any other applicable law. Unless the context otherwise
requires, terms used in this Article 9 shall have the meanings given in Section
79-4-8.50 of the Act.
ITEM 16. EXHIBITS
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement
3.1 -- Restated Articles of Incorporation of the Company(1)
3.2 -- Amendment to Articles of Incorporation of Company, as filed
on May 4, 1994(1)
3.3 -- Bylaws of the Company, as amended(2)
4.1 -- Specimen BancorpSouth Common Stock Certificate(3)
4.2 -- Form of Junior Subordinated Indenture between the Company
and Bankers Trust Company, as Debenture Trustee
4.3 -- Certificate of Trust of BancorpSouth Capital Trust I
4.4 -- Declaration of Trust among the Company, Bankers Trust
Company, as Property Trustee, Bankers Trust (Delaware), as
Delaware Trustee, and the Administrative Trustees named
therein, dated August 22, 1997
</TABLE>
II-2
<PAGE> 60
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
4.5 -- Form of Amended and Restated Declaration of Trust among the
Company, Bankers Trust Company, as Property Trustee, Bankers
Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein
4.6 -- Form of Capital Security Certificate to be issued by
BancorpSouth Capital Trust I (included in Exhibit 4.5)
4.7 -- Form of Security for % Junior Subordinated Debt Security
to be issued by the Company (included in Exhibit 4.2)
4.8 -- Form of Guarantee Agreement to be entered into by the
Company and Bankers Trust Company, as Guarantee Trustee
5.1 -- Opinion of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company
5.2 -- Opinion of Richards, Layton & Finger
8.1 -- Opinion of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company, as to certain federal income tax
matters
10.1 -- Stock Bonus Agreement, dated as of November 6, 1987, between
the Company and Aubrey B. Patterson, Jr.(4)
10.2 -- Escrow Agreement, dated as of November 6, 1987, between
BancorpSouth Bank and Aubrey B. Patterson, Jr.(4)
10.3 -- Form of Deferred Compensation Agreement between the Company
and certain key executives(5)
10.4 -- 1994 Stock Incentive Plan(3)
10.5 -- 1995 Non-Qualified Stock Option Plan for Non-Employee
Directors(3)
10.6 -- Stock Bonus Agreement, dated as of January 17, 1995, between
the Company and Michael W. Weeks(6)
10.7 -- Escrow Agreement, dated as of January 17, 1995, between
BancorpSouth Bank and Michael W. Weeks(6)
12.1 -- Statement re computation of ratio of earnings to fixed
charges
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company (included in opinions filed as
Exhibits 5.1 and 8.1)
23.3 -- Consent of Richards, Layton & Finger (included in opinion
filed as Exhibit 5.2)
23.4 -- Consent of Riley, Ford, Caldwell & Cork, P.A.
24.1 -- Power of Attorney (included on page II-6)
25.1 -- Form T-1 Statement of Eligibility of Bankers Trust Company
to act as trustee under the Junior Subordinated Indenture,
under the Amended and Restated Declaration of Trust and
under the Guarantee for the benefit of the holders of
Capital Securities
</TABLE>
- ---------------
(1) Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-4, filed on January 6, 1995, (registration No.
33-88274).
(2) Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form 8-A, filed on May 14, 1997.
(3) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1994.
(4) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1987.
(5) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1988.
II-3
<PAGE> 61
(6) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
ITEM 17. UNDERTAKINGS.
Each of the undersigned Registrants hereby undertakes:
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant, pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted against the
Registrant by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-4
<PAGE> 62
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Tupelo, State of Mississippi, on the 25th day of
August, 1997.
BANCORPSOUTH, INC.
By: /s/ AUBREY B. PATTERSON
------------------------------------
Aubrey B. Patterson
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Aubrey B. Patterson and L. Nash Allen, Jr., and
each or either of them, his true and lawful attorney-in-fact, as agent and with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacity, to sign any or all amendments to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully and to all intents and purposes
as they might do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, and their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ AUBREY B. PATTERSON Chairman of the Board, Chief August 25, 1997
- ----------------------------------------------------- Executive Officer, Director
Aubrey B. Patterson (principal executive
officer)
/s/ L. NASH ALLEN, JR. Treasurer and Chief Financial August 25, 1997
- ----------------------------------------------------- Officer (principal
L. Nash Allen, Jr. financial and accounting
officer)
/s/ S. H. DAVIS Director August 25, 1997
- -----------------------------------------------------
S. H. Davis
/s/ HASSELL H. FRANKLIN Director August 25, 1997
- -----------------------------------------------------
Hassell H. Franklin
/s/ FLETCHER H. GOODE, M.D. Director August 25, 1997
- -----------------------------------------------------
Fletcher H. Goode, M.D.
/s/ J. LOUIS GRIFFIN, JR. Director August 25, 1997
- -----------------------------------------------------
J. Louis Griffin, Jr.
/s/ W. G. HOLLIMAN, JR. Director August 25, 1997
- -----------------------------------------------------
W. G. Holliman, Jr.
</TABLE>
II-5
<PAGE> 63
<TABLE>
<CAPTION>
NAME TITLE DATE
---- ----- ----
<C> <S> <C>
/s/ A. DOUGLAS JUMPER Director August 25, 1997
- -----------------------------------------------------
A. Douglas Jumper
/s/ TURNER O. LASHLEE Director August 25, 1997
- -----------------------------------------------------
Turner O. Lashlee
/s/ ALAN W. PERRY Director August 25, 1997
- -----------------------------------------------------
Alan W. Perry
/s/ FRANK A. RILEY Director August 25, 1997
- -----------------------------------------------------
Frank A. Riley
/s/ TRAVIS E. STAUB Director August 25, 1997
- -----------------------------------------------------
Travis E. Staub
/s/ ANDREW R. TOWNES, D.D.S. Director August 25, 1997
- -----------------------------------------------------
Andrew R. Townes, D.D.S.
/s/ LOWERY A. WOODALL Director August 25, 1997
- -----------------------------------------------------
Lowery A. Woodall
</TABLE>
II-6
<PAGE> 64
Pursuant to the requirements of the Securities Act of 1933, as amended,
BancorpSouth Capital Trust I certifies that it has reasonable grounds to believe
that it meets all the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Tupelo, State of Mississippi, on the
25th day of August, 1997.
BANCORPSOUTH CAPITAL TRUST I
By: /s/ AUBREY B. PATTERSON
-----------------------------------
Aubrey B. Patterson
Administrative Trustee
By: /s/ L. NASH ALLEN, JR.
------------------------------------
L. Nash Allen, Jr.
Administrative Trustee
II-7
<PAGE> 65
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
1.1 -- Form of Underwriting Agreement
3.1 -- Restated Articles of Incorporation of the Company(1)
3.2 -- Amendment to Articles of Incorporation of Company, as filed
on May 4, 1994(1)
3.3 -- Bylaws of the Company, as amended(2)
4.1 -- Specimen BancorpSouth Common Stock Certificate(3)
4.2 -- Form of Junior Subordinated Indenture between the Company
and Bankers Trust Company, as Debenture Trustee
4.3 -- Certificate of Trust of BancorpSouth Capital Trust I
4.4 -- Declaration of Trust among the Company, Bankers Trust
Company as Property Trustee, Bankers Trust (Delaware), as
Delaware Trustee, and the Administrative Trustees named
therein, dated August 22, 1997
4.5 -- Form of Amended and Restated Declaration of Trust among the
Company, Bankers Trust Company, as Property Trustee, Bankers
Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein
4.6 -- Form of Capital Security Certificate to be issued by
BancorpSouth Capital Trust I (included in Exhibit 4.5)
4.7 -- Form of Security for % Junior Subordinated Debt Security
to be issued by the Company (included in Exhibit 4.2)
4.8 -- Form of Guarantee Agreement to be entered into by the
Company and Bankers Trust Company, as Guarantee Trustee
5.1 -- Opinion of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company
5.2 -- Opinion of Richards, Layton & Finger
8.1 -- Opinion of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company, as to certain federal income tax
matters
10.1 -- Stock Bonus Agreement, dated as of November 6, 1987, between
the Company and Aubrey B. Patterson, Jr.(4)
10.2 -- Escrow Agreement, dated as of November 6, 1987, between
BancorpSouth Bank and Aubrey B. Patterson, Jr.(4)
10.3 -- Form of Deferred Compensation Agreement between the Company
and certain key executives(5)
10.4 -- 1994 Stock Incentive Plan(3)
10.5 -- 1995 Non-Qualified Stock Option Plan for Non-Employee
Directors(3)
10.6 -- Stock Bonus Agreement, dated as of January 17, 1995, between
the Company and Michael W. Weeks(6)
10.7 -- Escrow Agreement, dated as of January 17, 1995, between
BancorpSouth Bank and Michael W. Weeks(6)
12.1 -- Statement re computation of ratio of earnings to fixed
charges
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of Waller Lansden Dortch & Davis, A Professional
Limited Liability Company (included in opinions filed as
Exhibits 5.1 and 8.1)
</TABLE>
<PAGE> 66
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------- ----------------------
<C> <C> <S>
23.3 -- Consent of Richards, Layton & Finger (included in opinion
filed as Exhibit 5.2)
23.4 -- Consent of Riley, Ford, Caldwell & Cork, P.A.
24.1 -- Power of Attorney (included on page II-6)
25.1 -- Form T-1 Statement of Eligibility of Bankers Trust Company
to act as trustee under the Junior Subordinated Indenture,
under the Amended and Restated Declaration of Trust and
under the Guarantee for the benefit of the holders of
Capital Securities
</TABLE>
- ---------------
(1) Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-4, filed on January 6, 1995, (registration No.
33-88274).
(2) Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form 8-A, filed on May 14, 1997.
(3) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1994.
(4) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1987.
(5) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1988.
(6) Incorporated by reference to exhibits filed with the Company's Annual Report
on Form 10-K for the year ended December 31, 1995.
<PAGE> 1
EXHIBIT 1.1
BANCORPSOUTH CAPITAL TRUST I
$75,000,000
[ ] % Capital Trust Pass-through Securities
(Liquidation Amount $1,000 per Capital Trust
Pass-through Security) fully and unconditionally
guaranteed, as described herein,
by
BANCORPSOUTH, INC.
Underwriting Agreement
New York, New York
September , 1997
Salomon Brothers Inc
Keefe, Bruyette & Woods, Inc.
As Representatives of the several Underwriters
c/o Salomon Brothers Inc
Seven World Trade Center
New York, New York 10048
Dear Sirs:
BancorpSouth Capital Trust I, a Delaware statutory business
trust (the "Trust"), and BancorpSouth, Inc., a Mississippi corporation, (the
"Company"), as depositor of the Trust and as guarantor, propose to sell to the
underwriters named in Schedule I hereto (the "Under writers"), for whom you
(the "Representatives") are acting as representatives, 75,000 of the Trust's [
]% Capital Trust Pass-through Securities, liquidation amount $1,000 per Capital
Trust Pass-through Security (the "Capital Securities" and, together with the
Guarantee (as defined), the "Securities"). The Securities will represent
undivided beneficial ownership interests in the assets of the Trust, will be
guaranteed by the Company as to the payment of distributions, and as to
payments on liquidation or redemption, to the extent set forth in a guarantee
agreement (the "Guarantee") dated as of [ ], 1997 between the Company and
Bankers Trust Company, a New York banking corporation validly existing under
the laws of the state of New York, as trustee (the "Guarantee Trustee"). The
Securities are to be issued pursuant to the Amended and Restated Declaration of
Trust (the "Declaration") dated as
<PAGE> 2
2
of [ ], 1997 among Aubrey B. Patterson and L. Nash Allen, Jr. (each an
"Administrative Trustee" and, collectively, the "Administrative Trustees"),
Bankers Trust Company, as property trustee (the "Property Trustee"), Bankers
Trust (Delaware), a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee") and the Company, as depositor. The proceeds of the sale by
the Trust of the Securities and its Common Securities, liquidation amount
$1,000 per Common Security (the "Common Securities"), are to be invested in the
[ ]% Junior Subordinated Debt Securities (the "Debt Securities") of the Company
having an aggregate principal amount equal to the aggregate liquidation amount
of the Capital Securities and the Common Securities, to be issued pursuant to a
Junior Subordinated Indenture, as supplemented from time to time (the
"Indenture"), dated as of [ ], 1997 between the Company and Bankers Trust
Company, as Trustee (the "Indenture Trustee").
1. Representations and Warranties. Each of the
Company and the Trust represents and warrants to, and agrees
with, each Underwriter as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) The Company and the Trust meet the requirements for use
of Form S-3 under the Securities Act of 1933 (the "Act") and have
filed with the Securities and Exchange Commission (the "Commission") a
registration statement (file number 333-[ ]) on such Form, including a
related preliminary prospectus, for the registration under the Act of
the offering and sale of the Securities. The Company and the Trust may
have filed one or more amendments thereto, including the related
preliminary prospectus, each of which has previously been furnished to
you. The Company and the Trust will next file with the Commission one
of the following: (i) prior to effectiveness of such regis tration
statement, a further amendment to such regis tration statement,
including the form of final prospec tus, (ii) a final prospectus in
accordance with Rules 430A and 424(b)(1) or (4), or (iii) a final
prospectus in accordance with Rules 415 and 424(b)(2) or (5). In the
case of clause (ii), the Company and the Trust have included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the Act and
the rules thereunder to be included in the Prospectus with respect to
the Securities and the offering thereof. As filed, such amendment and
form of final prospectus, or such final prospectus, shall contain all
Rule 430A
<PAGE> 3
3
Information, together with all other such required information, with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Company and the Trust have advised you,
prior to the Execution Time, will be included or made therein. If the
Registration State ment contains the undertaking specified by
Regulation S-K Item 512(a), the Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Prospectus
(and any supple ments thereto) will, comply in all material respects
with the applicable requirements of the Act, the Securities Exchange
Act of 1934 (the "Exchange Act") and the Trust Indenture Act of 1939
(the "Trust Inden ture Act") and the respective rules thereunder; on
the Effective Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Date and
on the Closing Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture Act and the
rules thereunder; and, on the Effective Date, the Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that neither the Trust nor the Company makes any
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
or (ii) the information contained in or omitted from the Regis tration
Statement or the Prospectus (or any supplement thereto) in reliance
upon and in conformity with
<PAGE> 4
4
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representa tives specifically for inclusion in
the Registration Statement or the Prospectus (or any supplement
thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date" shall
mean each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective and each
date after the date hereof on which a document incorporated by
reference in the Registration Statement is filed. "Execution Time"
shall mean the date and time that this Agreement is executed and
delivered by the parties hereto. "Preliminary Prospectus" shall mean
any preliminary prospectus referred to in paragraph (a) above and any
preliminary prospectus included in the Registration Statement at the
Effective Date that omits Rule 430A Information. "Prospectus" shall
mean the prospectus relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean
the registration statement referred to in paragraph (a) above,
including incorporated documents, exhibits and financial statements,
as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and,
in the event any post-effective amendment thereto becomes effective
prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement as so amended. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective
Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and
"Regulation S-K" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule
430A. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement or the issue
date of such Preliminary Prospectus or the Prospectus, as the case
<PAGE> 5
5
may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the filing of any document under the Exchange Act after
the Effective Date of the Registration Statement, or the issue date of
any Preliminary Prospectus or the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(d) Neither the Company nor the Trust is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (together with the rules and regulations thereunder, the
"Investment Company Act"), and after giving effect to the offer and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, neither will be an "investment company"
as defined in the Investment Company Act.
(e) The Company is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act.
(f) Neither the Company nor the Trust has paid or agreed to
pay to any person any compensation for soliciting another to purchase
any of the Securities (except as contemplated by this Agreement).
(g) The Trust has been duly created and is validly existing
in good standing as a business trust under the Delaware Business Trust
Act, 12 Del. C. 3801, et seq. (the "Business Trust Act") with the
power and authority to own property and to conduct its business as
described in the Prospectus and to enter into and perform its
obligations under this Agreement, the Indenture, the Declaration and
the Securities. The Trust is duly qualified to transact business as a
foreign entity and is in good standing in each jurisdiction in which
such qualification is necessary, except where the failure to so
qualify or be in good standing would not have a material adverse
effect on the Trust. The Trust is not a party to or otherwise bound by
any agreement other than this Agreement, the Indenture, the
Declaration and the Securities.
(h) The Declaration has been duly authorized by the Company
and, on the Closing Date, will have been duly executed and delivered
by the Company and the Administrative Trustees, and, assuming due
authorization, execution and delivery by the Delaware
<PAGE> 6
6
Trustee and the Property Trustee, be a valid and binding obligation of
the Company and the Administrative Trustees, enforceable against them
in accordance with its terms, subject to applicable bankruptcy,
insolvency, and similar laws affecting creditors' rights generally and
to general principles of equity ("Bankruptcy and Equity") and except
that the indemnification provisions may be limited by federal or state
securities laws or the public policy underlying such laws ("Public
Policy"). Each of the Administrative Trustees of the Trust is an
employee of the Company and has been duly authorized by the Company to
execute and deliver the Declaration.
(i) Each of the Guarantee and the Indenture has been duly
authorized by the Company and, on the Closing Date will have been duly
executed and delivered by the Company, and, assuming due
authorization, execution and delivery by the Guarantee Trustee, in the
case of the Guarantee and by the Indenture Trustee, in the case of the
Indenture, will be a valid and binding obligation of the Company
enforceable against it in accordance with its terms, subject to
Bankruptcy and Equity, and except that the indemnification provisions
may be limited by federal or state laws or Public Policy.
(j) The Capital Securities and the Common Securities have
been duly authorized by the Declaration and, when issued and delivered
against payment therefor on the Closing Date to the Underwriters, in
the case of the Capital Securities, and to the Company, in the case of
the Common Securities, will be validly issued and represent undivided
beneficial interests in the assets of the Trust. The issuance of
neither the Capital Securities nor the Common Securities is subject to
preemptive or other similar rights. On the Closing Date, all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any pledge, security interest,
claim, lien or other encumbrance.
(k) The Debt Securities have been duly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered to the Indenture Trustee for authentication in accordance
with the Indenture, and, when authenticated in the manner provided for
in the Indenture and delivered against payment therefor as described
in the Prospectus, will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture enforceable
against the
<PAGE> 7
7
Company in accordance with their terms, subject to Bankruptcy and
Equity.
(l) This Agreement has been duly executed and
delivered by the Company and the Trust.
(m) This Agreement, the Indenture, the Declaration, and the
Securities will on the Closing Date conform in all material respects
to the descriptions thereof contained in the Prospectus.
(n) The Trust is not in violation of the Declaration or any
provision of the Business Trust Act. The execution, delivery and
performance of this Agreement, the Indenture, the Declaration and the
Securities to which it is a party by the Company or the Trust, and the
consummation of the transactions contemplated herein or therein, will
not conflict with or constitute a breach of, or a default under, or
result in the creation or imposition of any lien, charge or other
encumbrance upon any property or assets of the Trust, the Company or
any of the Company's subsidiaries pursuant to any contract, indenture,
mortgage, loan agreement, note lease or other instrument to which the
Trust, the Company or any of its subsidiaries is a party or by which
it or any of them may be bound, or to which any of the property or
assets of any of them is subject, except for a conflict, breach,
default, lien, charge or encumbrance which could not reasonably be
expected to have a material adverse effect on the consummation of the
transactions contemplated herein or therein, nor will such action
result in a violation of the Declaration or the Business Trust Act.
(o) The Company is a duly organized and validly existing
corporation in good standing under the laws of the State of
Mississippi and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended, and has the corporate
power and authority to own its properties and conduct its business as
described in the Prospectus; BancorpSouth Bank (the "Bank") is a duly
organized and validly existing Mississippi chartered commercial bank
and continues to hold a valid certificate to do business as such and
has full power and authority to conduct its business as such; and,
except as set forth in the Prospectus, each of the Company and the
Bank is in all material respects in compliance with all laws, rules,
regulations, directives and published interpretations issued or
administered by, all conditions imposed in
<PAGE> 8
8
writing by and all agreements entered into with, any bank regulatory
agency, authority or body having jurisdiction over the Company or the
Bank or any of their respective assets, operations or businesses; each
of the Company and the Bank holds all material licenses, certificates
and permits from governmental authorities necessary for the conduct of
its business as described in the Prospectus; and other than the Bank,
there is no significant subsidiary of the Company, as that term is
defined in Rule 1-02(v) of Regulation S-X, and there are no other
subsidiaries of the Company which individually, or in the aggregate,
own or lease property or conduct business which is material to the
properties or business of the Company and its subsidiaries taken as a
whole.
(p) The Bank is duly authorized, and the Company is duly
qualified as a foreign corporation, to do business and are in good
standing in all jurisdictions in which such authorization or
qualification is required and in which the failure to be so authorized
or to qualify, as the case may be, could reasonably be expected to, in
the aggregate, have any material adverse effect upon the business,
condition or properties of the Company and its subsidiaries taken as a
whole.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, the
Company and the Trust agree that the Trust will sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Trust,
at a purchase price of $[ ] per Security, plus accrued distributions, if any,
on the Securities from , 1997, to the Closing Date, the number of
Securities set forth opposite such Underwriter's name in Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 AM, New York City time, on [ ], 1997, or such
later date (not later than [ ], 1997) as the Representatives shall designate,
which date and time may be postponed by agreement among the Representatives,
the Trust and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire
<PAGE> 9
9
transfer payable in same day funds. Delivery of the Securities shall be made at
such location as the Representa tives shall reasonably designate at least one
business day in advance of the Closing Date and payment for the Securities
shall be made at the office of Cravath, Swaine & Moore, 825 Eighth Avenue, New
York, New York. Certificates for the Securities shall be registered in such
names and in such denominations as the Representatives may request not less
than three full business days in advance of the Closing Date.
The Company agrees to have the Securities avail able for
inspection, checking and packaging by the Represen tatives in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood
that the several Underwriters propose to offer the Securi
ties for sale to the public as set forth in the Prospectus.
5. Agreements. Each of the Company and the Trust
agree with the several Underwriters that:
(a) The Company and the Trust will use their best efforts to
cause the Registration Statement, if not effective at the Execution
Time, and any amendment thereof, to become effective. Prior to the
termination of the offering of the Securities, neither the Company nor
the Trust will file any amendment of the Registration Statement or
supplement to the Prospectus unless the Company and the Trust have
furnished you a copy for your review prior to filing and will not file
any such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b), the
Company and the Trust will cause the Prospectus, properly completed,
and any supplement thereto to be filed with the Commission pursuant to
the applicable paragraph of Rule 424(b) within the time period pre
scribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company and the Trust will promptly advise
the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Prospectus, and any supplement
thereto, shall have been filed (if required) with the Commission
pursuant to Rule 424(b), (iii) when, prior to termination of the
offering of the Securities, any amendment to the Registration
Statement
<PAGE> 10
10
shall have been filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration Statement or
supplement to the Prospectus or for any additional information, (v) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by the Company or the Trust of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company and the Trust will use their best efforts to
prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospec tus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
it shall be necessary to amend the Registration Statement or
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company and the Trust promptly
will (i) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (ii) supply any supplemented Prospectus to you in
such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company and the Trust will furnish to the
Representatives and counsel for the Underwriters, without charge,
signed copies of the Registration Statement (including exhibits
thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of each Preliminary
<PAGE> 11
11
Prospectus and the Prospectus and any supplement thereto as the
Representatives may reasonably request. The Company will pay the
expenses of printing or other production of all documents relating to
the offering.
(e) The Company will arrange for the qualifica tion of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality of the Securities
for purchase by institutional investors.
(f) The Company will not, until the first business day
following the Closing Date, without prior written consent of the
Representatives, offer, sell or contract to sell, or otherwise dispose
of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the
Securities).
(g) Each of the Company and the Trust confirm as of the date
hereof that it is in compliance with all provisions of Section 1 of
Laws of Florida, Chapter 92- 198, An Act Relating to Disclosure of
Doing Business with Cuba, and the Company further agrees that if it
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Securities and
Exchange Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if the
information reported in the Prospectus, if any, concerning the
Company's business with Cuba or with any person or affiliate located
in Cuba changes in any material way, the Company will provide the
Department notice of such business or change, as appropriate, in a
form acceptable to the Department.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
and the Trust contained herein as of the Execution Time and the Closing Date,
to the accuracy of the statements of the Company and the Trust made in any
certificates pursuant to the provisions hereof, to the performance by the
Company and the Trust of their obligations hereunder and to the following
additional conditions:
<PAGE> 12
12
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 PM New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company and the Trust shall have furnished to the
Representatives one or more opinions of Riley, Ford, Caldwell & Cork,
P.A., counsel to the Company, and of Waller Lansden Dortch & Davis, A
Professional Limited Liability Company, special counsel to the Company
and the Trust, dated the Closing Date, to the effect that:
(i) the Company is a validly existing corporation
in good standing under the laws of the State of Mississippi
and is duly registered as a bank holding company under the
Bank Holding Company Act of 1956, as amended, and has the
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; the Bank
is a validly existing Mississippi chartered commercial bank,
and continues to hold a valid certificate to do business as
such and has full power and authority to conduct its business
as such; each of the Company and the Bank holds all material
licenses, certificates and permits from governmental
authorities necessary for the conduct of its business as
described in the Prospectus; and other than the Bank, to the
knowledge of such counsel, there is no significant subsidiary
of the Company, as that term is defined in Rule 1-02(v) of
Regulation S-X;
(ii) The Bank is duly authorized, and the
Company is duly qualified as a foreign
<PAGE> 13
13
corporation, to do business and are in good standing in all
jurisdictions in which such authorization or qualification is
required and in which the failure to be so authorized or to
qualify, as the case may be, could reasonably be expected to,
in the aggregate, have any material adverse effect upon the
business, condition or properties of the Company and its
direct and indirect subsidiaries taken as a whole;
(iii) all the outstanding shares of capital stock of
the Bank have been duly and validly authorized and issued and
are fully paid and nonassessable and are owned by the Company
either directly or through wholly owned subsidiaries free and
clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iv) the Company's authorized equity capitalization
is as set forth in the Prospectus and the Securities, the
Debt Securities and the Common Securities conform to the
description thereof contained in the Prospectus; the holders
of the outstanding shares of capital stock of the Company are
not entitled to any preemptive or other rights to subscribe
for the Securities, the Debt Securities or the Common
Securities pursuant to Mississippi law or the Company's
charter, and to the knowledge of such counsel after due
inquiry, such counsel is not aware of the existence of such
rights pursuant to any agreement;
(v) to the knowledge of such counsel, after due
inquiry, (A) there is no pending or threatened action, suit
or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company,
the Trust or the Bank of a character required to be disclosed
in the Prospectus which is not so disclosed; and (B) there is
no franchise, contract or other document of a character
required to be described in the Prospectus, which is not so
described;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) the Registration Statement has become
effective under the Act; any required filing of
<PAGE> 14
14
the Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period
required by Rule 424(b); to the best knowledge of such coun
sel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and the
Registration Statement and the Prospectus (other than the
financial state ments and other financial and statistical
informa tion contained therein as to which such counsel need
express no opinion) comply as to form in all material
respects with the applicable requirements of the Act, the
Exchange Act and the Trust Inden ture Act and the respective
rules thereunder; and such counsel has no reason to believe
that at the Effective Date the Registration Statement con
tained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or
that the Prospectus includes any untrue statement of a
material fact or omits to state a material fact necessary to
make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(viii) the Indenture has been duly authorized,
executed and delivered, and constitutes a valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); the Debt Securities have been duly and
validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Trust, will constitute legal, valid
and binding obligations of the Company entitled to the
benefits of the Indenture;
(ix) the Guarantee has been duly authorized,
executed and delivered, and constitutes a valid and binding
instrument enforceable against the Company in accordance with
its terms (subject (a) as to the enforcement of remedies, as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to
or affecting rights of creditors generally or by general
principles of
<PAGE> 15
15
equity and (b) as to the effect of federal or
state law or public policy on the indemnification
provisions contained therein);
(x) Upon the Closing, all of the issued and
outstanding Common Securities will be owned directly by the
Company free and clear of any security interest, claims,
liens or encumbrances;
(xi) no consent, approval, authorization or order
of any court or governmental agency or body is required for
the consummation by the Company or the Trust of the
transactions contemplated by this Agreement, the
Declaration, the Indenture and the Guarantee, except such as
may be required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Securities by the Underwriters and such other approvals
(specified in such opinion) as have been obtained, and except
in connection with the registration of the Securities and the
Debt Securities;
(xii) neither the issue and sale of the Securities
or the Debt Securities, the execution and delivery of the
Declaration, the Indenture or the Guarantee, the consummation
of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation
of, or constitute a default under or violate (A) any of the
terms, conditions or provisions of the Articles of
Incorporation or by-laws of the Company, the Banks or the
Declaration, (B) to the knowledge of such counsel, after due
inquiry, any of the terms, conditions or provisions of any
material document, agreement or other instrument to which the
Company, the Banks, or the Trust is a party or by which any
of them or their property is bound, (C) any law or regulation
normally applicable to transactions of this type or, to the
knowledge of such counsel after due inquiry, any judgment,
order, decree or ruling applicable to the Company, the Bank
or the Trust of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction
over the Company, the Bank or the Trust;
(xiii) neither the Company nor the Trust is
an "investment company" within the meaning of the
<PAGE> 16
16
Investment Company Act, and after giving effect to the offer
and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, neither will
be an "investment company" as defined in the Investment
Company Act.
(xiv) the Securities, the Common Securities, the
Debt Securities and each of the Guarantee, the Indenture and
the Declaration conform in all material respects to the
descriptions thereof contained in the Prospectus; and
(xv) the statements of legal matters, documents or
proceedings, and legal conclusions, if any, set forth in the
Prospectus under the headings "Description of Capital
Securities", "Description of Junior Subordinated Debt
Securities", "Relationship Among the Capital Securities, the
Junior Subordinated Debt Securities and the Guarantee" and
"Description of the Guarantee" fairly present the information
called for and fairly summarize the matters referred to
therein.
In rendering such opinion, such counsel may rely, as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company, the Trust and public officials. With respect to
matters of Mississippi law, such counsel may rely on an opinion of Mississippi
counsel addressed to and for the benefit of such counsel.
All references in this Section 6(b) to the Prospectus shall
be deemed to include any amendment or supplement thereto at the Closing Date.
(c) The Company and the Trust shall have furnished to the
Representatives the opinion of Waller Lansden Dortch & Davis, A
Professional Limited Liability Company, special tax counsel to the
Company and the Trust, dated the Closing Date, to the effect
that:
(i) the Trust is and will be classified as a
grantor trust and not as a partnership or an
association taxable as a corporation;
<PAGE> 17
17
(ii) the Debt Securities will be classified
for United States federal income tax purposes as
indebtedness of the Company; and
(iii) although the statements set forth under the
heading "Certain United States Federal Income Tax
Consequences" in the Prospectus do not purport to discuss all
possible United States federal income tax consequences of the
purchase, ownership and disposition of the Securities, such
statements fairly and accurately summarize the United States
federal income tax consequences of the purchase, ownership
and disposition of the Securities in all material respects.
(d) The Company and the Trust shall have furnished to the
Representatives the opinion of Richards, Layton & Finger, P.A.,
special Delaware counsel to the Trust, dated the Closing Date, to the
effect that:
(i) the Trust has been duly created and is validly
existing in good standing as a business trust under the
Delaware Business Trust Act, and all filings required under
the laws of the State of Delaware with respect to the
creation and valid existence of the Trust as a business trust
have been made;
(ii) under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority to
own its property and conduct its business, all as described
in the Declaration;
(iii) This Agreement has been duly
executed and delivered by the Trust;
(iv) the Declaration constitutes a valid and
binding obligation of the Company and the trustees of
the Trust, and is enforceable against the Company and the
trustees of the Trust in accordance with its terms, subject
to Bankruptcy and Equity and Public Policy;
(v) under the Delaware Business Trust Act and the
Declaration, the Trust has the trust power and authority (i)
to execute and deliver, and to perform its obligations under,
this Agreement, and (ii) to issue and
<PAGE> 18
18
perform its obligations under the Securities
and the Common Securities;
(vi) under the Delaware Business Trust Act and the
Declaration, the execution and delivery by the Trust of this
Agreement, and the performance by the Trust of its
obligations hereunder, have been duly authorized by all
necessary trust action on the part of the Trust;
(vii) the Capital Securities have been duly
authorized by the Declaration and, when authenticated and
paid for, will be duly and validly issued and fully paid and
nonassessable undivided beneficial interests in the assets of
the Trust, entitled to the benefits of the Declaration; the
holders, as beneficial owners of the Trust, will 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;
provided, however, that the holders may be obligated,
pursuant to the Declaration, (A) to provide indemnity and/or
security in connection with and pay taxes or governmental
charges arising from transfers or exchanges of Securities
certificates and the issuance of replacement Securities
certificates, and (B) to provide security or indemnity in
connection with requests of or directions to the Property
Trustee to exercise its rights and powers under the
Declaration.
(viii) under the Delaware Business Trust Act and the
Declaration, the issuance of the Capital Securities and the
Common Securities is not subject to preemptive rights;
(ix) the Common Securities have been duly
authorized by the Declaration and, when authenticated and
paid for, will be duly and validly issued and fully
paid undivided beneficial interests in the assets of the
Trust, entitled to the benefits of the Declaration; and
(x) the (a) purchase of the Debt Securities by the
Trust and, (b) the distribution of the Debt Securities by the
Trust in the circumstances contemplated by the Declaration,
and (c) the performance by the Trust of this Agreement and
the consummation of the transactions contemplated
<PAGE> 19
19
hereunder, will not conflict with or result in a breach or
violation of any of the terms or provisions of the
certificate of the Trust or the Declaration or any statute,
order, rule or regulation of the State of Delaware or any
governmental agency or body of the State of Delaware having
jurisdiction over the Trust or any of its properties.
(e) Bankers Trust Company shall have furnished to the
Representatives the opinion of Seward & Kissell, special counsel to
Bankers Trust Company, dated the Closing Date, to the effect that:
(i) Bankers Trust Company has been duly
incorporated and is validly existing as a banking
corporation in good standing under the laws of the State of
New York;
(ii) no consent, approval, authorization or order of
any federal or New York State banking authority is required
for the consummation of the transactions contemplated by the
Declaration, the Indenture or the Guarantee by the Property
Trustee, the Indenture Trustee or the Guarantee Trustee,
respectively; and
(iii) neither the execution and delivery of the
Declaration, the Indenture or the Guarantee, the consummation
of any other of the transactions herein or therein
contemplated nor the fulfillment of the terms hereof or
thereof will conflict with, result in a breach or violation
of, or constitute a default under the charter or by-laws of
Bankers Trust Company.
(f) Bankers Trust (Delaware) shall have furnished to the
Representatives the opinion of Richards, Layton & Finger, P.A.,
special counsel to Bankers Trust (Delaware), dated the Closing Date,
to the effect that Bankers Trust (Delaware) has been duly incorporated
and is validly existing as a banking corporation in good standing
under the laws of the State of Delaware; and has full corporate power
and authority to act as trustee of a statutory business trust under
the laws of the State of Delaware.
(g) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with
<PAGE> 20
20
respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board and
Chief Executive Officer and the principal financial or accounting
officer of the Company, dated the Closing Date, to the effect that the
signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus and this
Agreement and that:
(i) the representations and warranties of the
Company and the Trust in this Agreement are true and correct
in all material respects on and as of the Closing Date with
the same effect as if made on the Closing Date and the
Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effective ness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threat ened; and
(iii) since the date of the most recent finan cial
statements included in the Prospectus (exclu sive of any
supplement thereto), there has been no material adverse
change in the condition (finan cial or other), earnings,
business or properties of the Company and its subsidiaries,
whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in
the Prospectus (exclusive of any supplement thereto).
(i) At the Execution Time and at the Closing Date, KPMG Peat
Marwick LLP shall have furnished to the Representatives a letter or
letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the
Representatives, in accordance with Statement on Auditing Standards
No. 72, Letters for Underwriters and Certain Other
<PAGE> 21
21
Requesting Parties, issued by the Auditing Standards Board of the
American Institute of Certified Public Accountants.
(j) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Prospectus (exclusive of
any supple ment thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph
(i) of this Section 6 or (ii) any change, or any development involving
a prospective change, in or affecting the business or properties of
the Company and its subsidiaries the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclu sive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(k) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
(l) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Repre sentatives may reasonably
request.
If any of the conditions specified in this Sec tion 6 shall
not have been fulfilled in all material re spects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Repre sentatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 6
shall be delivered at the office of Cravath,
<PAGE> 22
22
Swaine & Moore, counsel for the Underwriters, at Worldwide Plaza, 825 Eighth
Avenue, New York, New York, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of
the Securities provided for herein is not con summated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company or the Trust to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each Under writer, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any
reasonable legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein. This indemnity
agreement will be in
<PAGE> 23
23
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in [the last paragraph of the cover page and under the
heading "Underwriting"] in any Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
several Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus, and you, as the Representatives, confirm that such statements are
correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writ ing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party shall
be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemni fying party
shall not thereafter be responsible for the fees and expenses of any separate
counsel retained by the indem nified party or parties except as set forth
below); provid ed, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees,
<PAGE> 24
24
costs and expenses of such separate counsel if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants
in, or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnify ing party. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribu tion may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; provided, however, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securi ties) be responsible for any amount in
excess of the under writing discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavail able for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations.
<PAGE> 25
25
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the offering (before deduct ing expenses), and benefits received
by the Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of the
Prospectus. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or the Underwriters. The Company and the Underwrit ers agree that it
would not be just and equitable if contri bution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresenta tion. For
purposes of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters
shall fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter or Underwriters hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to take
up and pay for (in the respective proportions which the principal amount of
Securi ties set forth opposite their names in Schedule I hereto bears to the
aggregate liquidation amount of Securities set forth opposite the names of all
the remaining Underwriters) the Securities which the defaulting Underwriter or
Under writers agreed but failed to purchase; provided, however, that in the
event that the aggregate liquidation amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate liquidation amount of Securities set forth in Schedule I hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securi ties, this Agreement
will terminate without liability to any
<PAGE> 26
26
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representa tives, by notice given
to the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in securities
generally on the New York Stock Exchange shall have been suspended or limited
or minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by f federal, Mississippi or
Tennessee or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company and the Trust or their officers or trustees and of
the Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or the Company or the Trust or any of the officers, directors
or controlling persons referred to in Section 8 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 7 and 8
hereof shall survive the termination or cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, care of Salomon
Brothers Inc, at Seven World Trade Center, New York, New York, 10048; or, if
sent to the Company, will be mailed, delivered or tele-
<PAGE> 27
27
graphed and confirmed to it at One Mississippi Plaza, Tupelo, MS 38801,
Attention: Cathy S. Freeman, Secretary.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 8 hereof,
and no other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of laws thereof.
15. Counterparts. This instrument may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
<PAGE> 28
If the foregoing is in accordance with your under standing of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company, the Trust and the several Underwriters.
Very truly yours,
BANCORPSOUTH CAPITAL TRUST I
By:
-----------------------------
Name:
Title: Administrative Trustee
BANCORPSOUTH, INC.,
By:
-----------------------------
Name:
Title:
<PAGE> 29
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written:
Salomon Brothers Inc
Keefe, Bruyette & Woods, Inc.
By: SALOMON BROTHERS INC
By:
----------------------------
Name:
Title:
<PAGE> 30
SCHEDULE I
<TABLE>
<CAPTION>
Number of
Securities
Underwriters to be Purchased
------------ ---------------
<S> <C>
Salomon Brothers Inc..........................................................
Keefe, Bruyette & Woods, Inc. ................................................
---------------
Total....................................................................
===============
</TABLE>
<PAGE> 1
EXHIBIT 4.2
===============================================================================
BANCORPSOUTH, INC.
to
BANKERS TRUST COMPANY
Trustee
-------------------
JUNIOR SUBORDINATED INDENTURE
Dated as of September [ ], 1997
===============================================================================
<PAGE> 2
BANCORPSOUTH, INC.
Reconciliation and tie between the Trust Indenture Act of
1939 (including cross-references to provisions of Sections 310 to and including
317 which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as
amended by the Trust Reform Act of 1990, are a part of and govern the Indenture
whether or not physically contained therein) and the Junior Subordinated
Indenture, dated as of September , 1997.
<TABLE>
<CAPTION>
Indenture
Trust Indenture Act Section Section
- --------------------------- -------
<S> <C>
ss.310(a)(1), (2) and (5)..................................................... 6.09
ss.310(a)(3).................................................................. Not Applicable
ss.310(a)(4).................................................................. Not Applicable
ss.310(b)..................................................................... 6.08, 6.10
ss.310(c)..................................................................... Not Applicable
ss.311(a)..................................................................... 6.13
ss.311(b)..................................................................... 6.13
ss.312(a)..................................................................... 7.01, 7.02(a)
ss.312(b)..................................................................... 7.02(b)
ss.312(c)..................................................................... 7.02(c)
ss.313(a)..................................................................... 7.03(a)
ss.313(b)..................................................................... 7.03(b)
ss.313(c)..................................................................... 7.03(a), 7.03(b)
ss.313(d)..................................................................... 7.03(c)
ss.314(a)(1), (2) and (3)..................................................... 7.04
ss.314(a)(4).................................................................. 10.04
ss.314(b)..................................................................... Not Applicable
ss.314(c)(1).................................................................. 1.02
ss.314(c)(2).................................................................. 1.02
ss.314(c)(3).................................................................. Not Applicable
ss.314(d)..................................................................... Not Applicable
ss.314(e)..................................................................... 1.02
ss.314(f)..................................................................... Not Applicable
ss.315(a)..................................................................... 6.01(a)
ss.315(b)..................................................................... 6.02, 7.03(a)
ss.315(c)..................................................................... 6.01(b)
ss.315(d)..................................................................... 6.01(c)
ss.315(d)(1).................................................................. 6.01(c)(1)
ss.315(d)(2).................................................................. 6.01(c)(2)
ss.315(d)(3).................................................................. 6.01(c)(3)
ss.315(e)..................................................................... 5.14
ss.316(a)..................................................................... 1.01
ss.316(a)(1)(A)............................................................... 5.12
ss.316(a)(1)(B)............................................................... 5.13
ss.316(a)(2).................................................................. Not Applicable
ss.316(b)..................................................................... 5.08
ss.316(c)..................................................................... 1.04(f)
ss.317(a)(1).................................................................. 5.03
ss.317(a)(2).................................................................. 5.04
ss.317(b)..................................................................... 10.03
ss.318(a)..................................................................... 1.07
- ------------
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Junior Subordinated Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Definitions and Other Provisions of
General Application
SECTION 1.01. Definitions........................................ 1
SECTION 1.02. Compliance Certificate and
Opinions......................................... 13
SECTION 1.03. Forms of Documents Delivered to
Trustee.......................................... 14
SECTION 1.04. Acts of Holders.................................... 14
SECTION 1.05. Notices, Etc. to Trustee and Company............... 16
SECTION 1.06. Notice to Holders; Waiver.......................... 16
SECTION 1.07. Conflict with Trust Indenture Act.................. 16
SECTION 1.08. Effect of Headings and Table of
Contents......................................... 16
SECTION 1.09. Successors and Assigns............................. 17
SECTION 1.10. Separability Clause................................ 17
SECTION 1.11. Benefits of Indenture.............................. 17
SECTION 1.12. Governing Law...................................... 17
SECTION 1.13. Non-Business Days.................................. 17
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally.................................... 18
SECTION 2.02. Form of Face of Security........................... 18
SECTION 2.03. Form of Reverse of Security........................ 23
SECTION 2.04. Additional Provisions Required in
Global Security.................................. 28
SECTION 2.05. Form of Trustee's Certificate of
Authentication................................... 29
ARTICLE III
The Securities
SECTION 3.01. Title and Terms.................................... 29
SECTION 3.02. Denominations...................................... 32
SECTION 3.03. Execution, Authentication, Delivery
and Dating....................................... 32
SECTION 3.04. Temporary Securities............................... 34
SECTION 3.05. Global Securities.................................. 35
SECTION 3.06. Registration, Transfer and Exchange
Generally; Certain Transfers and
Exchanges........................................ 36
</TABLE>
<PAGE> 4
2
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities...................................... 39
SECTION 3.08. Payment of Interest; Interest Rights
Preserved....................................... 40
SECTION 3.09. Persons Deemed Owners............................. 42
SECTION 3.10. Cancelation....................................... 42
SECTION 3.11. Computation of Interest........................... 42
SECTION 3.12. Deferrals of Interest Payment
Dates........................................... 43
SECTION 3.13. Agreed Tax Treatment.............................. 44
SECTION 3.14. CUSIP Numbers..................................... 44
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of
Indenture........................................ 45
SECTION 4.02. Application of Trust Money......................... 46
ARTICLE V
Remedies
SECTION 5.01. Events of Default.................................. 46
SECTION 5.02. Acceleration of Maturity; Rescission
and Annulment.................................... 48
SECTION 5.03. Collection of Indebtedness and Suits
for Enforcement by Trustee....................... 51
SECTION 5.04. Trustee May File Proofs of Claim................... 52
SECTION 5.05. Trustee May Enforce Claim Without
Possession of Securities......................... 53
SECTION 5.06. Application of Money Collected..................... 53
SECTION 5.07. Limitation on Suits................................ 53
SECTION 5.08. Unconditional Right of Holders to
Receive Principal, Premium and
Interest......................................... 54
SECTION 5.09. Restoration of Rights and Remedies................. 55
SECTION 5.10. Rights and Remedies Cumulative..................... 55
SECTION 5.11. Delay or Omission Not Waiver....................... 56
SECTION 5.12. Control by Holders................................. 56
SECTION 5.13. Waiver of Past Defaults............................ 57
SECTION 5.14. Undertaking for Costs.............................. 57
SECTION 5.15. Waiver of Usury, Stay or Extension
Laws............................................. 58
</TABLE>
<PAGE> 5
3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and
Responsibilities................................. 58
SECTION 6.02. Notice of Defaults................................. 59
SECTION 6.03. Certain Rights of Trustee.......................... 60
SECTION 6.04. Not Responsible for Recitals or
Issuance of Securities........................... 61
SECTION 6.05. May Hold Securities................................ 61
SECTION 6.06. Money Held in Trust................................ 62
SECTION 6.07. Compensation and Reimbursement..................... 62
SECTION 6.08. Disqualification; Conflicting
Interests........................................ 63
SECTION 6.09. Corporate Trustee Required;
Eligibility...................................... 63
SECTION 6.10. Resignation and Removal; Appointment
of Successor..................................... 64
SECTION 6.11. Acceptance of Appointment by Successor............. 65
SECTION 6.12. Merger, Conversion, Consolidation or
Succession to Business........................... 67
SECTION 6.13. Preferential Collection of Claims
Against Company.................................. 67
SECTION 6.14. Appointment of Authenticating Agent................ 68
SECTION 6.15. Trustee's Rights and Obligations After
Qualification of Indenture....................... 69
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
SECTION 7.01. Company to Furnish Trustee Names and
Addresses of Holders............................. 70
SECTION 7.02. Preservation of Information,
Communications to Holders........................ 70
SECTION 7.03. Reports by Trustee................................. 71
SECTION 7.04. Reports by Company................................. 71
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, etc., Only on
Certain Terms.................................... 72
SECTION 8.02. Successor Corporation Substituted.................. 73
</TABLE>
<PAGE> 6
4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures without
Consent of Holders............................... 74
SECTION 9.02. Supplemental Indentures with Consent
of Holders....................................... 75
SECTION 9.03. Execution of Supplemental Indentures............... 77
SECTION 9.04. Effect of Supplemental Indentures.................. 77
SECTION 9.05. Conformity with Trust Indenture Act............... 77
SECTION 9.06. Reference in Securities to
Supplemental Indentures.......................... 77
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and
Interest......................................... 78
SECTION 10.02. Maintenance of Office or Agency.................... 78
SECTION 10.03. Money for Security Payments to be Held
in Trust......................................... 78
SECTION 10.04. Statement as to Compliance......................... 80
SECTION 10.05. Waiver of Certain Covenants........................ 80
SECTION 10.06. Payment of the Trust's Costs and
Expenses......................................... 81
SECTION 10.07. Additional Covenants............................... 81
SECTION 10.08. Information Returns................................ 83
ARTICLE XI
Redemption or Prepayment of Securities
SECTION 11.01. Applicability of This Article...................... 83
SECTION 11.02. Election to Redeem; Notice to Trustee.............. 83
SECTION 11.03. Selection of Securities to be Redeemed............. 84
SECTION 11.04. Notice of Redemption............................... 84
SECTION 11.05. Deposit of Redemption Price........................ 75
SECTION 11.06. Payment of Securities Called for
Redemption....................................... 86
SECTION 11.07. Company's Right of Redemption...................... 86
</TABLE>
ARTICLE XII
Intentionally omitted.
<PAGE> 7
5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE XIII
Sinking Funds
SECTION 13.01. Applicability of Article........................... 87
SECTION 13.02 Satisfaction of Sinking Fund Payments
with Securities.................................. 87
SECTION 13.03 Redemption of Securities for Sinking
Fund............................................. 88
ARTICLE XIV
Subordination of Securities
SECTION 14.01. Securities Subordinate to Senior Debt.............. 90
SECTION 14.02. Payment Over of Proceeds Upon
Dissolution, Etc................................. 90
SECTION 14.03. Prior Payment to Senior Debt Upon
Acceleration of Securities....................... 92
SECTION 14.04. No Payment When Senior Debt in Default............. 93
SECTION 14.05. Payment Permitted If No Default.................... 94
SECTION 14.06. Subrogation to Rights of Holders of
Senior Debt...................................... 94
SECTION 14.07. Provisions Solely to Define Relative
Rights........................................... 95
SECTION 14.08. Trustee to Effectuate Subordination................ 95
SECTION 14.09. No Waiver of Subordination Provisions.............. 95
SECTION 14.10. Notice to Trustee.................................. 96
SECTION 14.11. Reliance on Judicial Order or
Certificate of Liquidating Agent................. 96
SECTION 14.12. Trustee Not Fiduciary for Holders of
Senior Debt...................................... 96
SECTION 14.13. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's
Rights........................................... 97
SECTION 14.14. Article Applicable to Paying Agents................ 97
SECTION 14.15. Certain Conversions or Exchanges
Deemed Payments.................................. 97
</TABLE>
Exhibit A - Form of Restricted Securities Certificate
<PAGE> 8
JUNIOR SUBORDINATED INDENTURE, dated as of
September [ ], 1997, between BANCORPSOUTH, INC., a
bank holding company established under the laws of
Mississippi (hereinafter called the "Company") having
its principal office at One Mississippi Plaza,
Tupelo, Mississippi 38801, and BANKERS TRUST COMPANY,
a New York banking corporation, as Trustee
(hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
junior subordinated debt securities in series (hereinafter called the
"Securities") of substantially the tenor hereinafter provided, including,
without limitation, Securities issued to evidence loans made to the Company of
the proceeds from the issuance from time to time by one or more business trusts
(each a "BancorpSouth Capital Trust" and, collectively, the "BancorpSouth
Capital Trusts") of preferred trust interests in such BancorpSouth Capital
Trusts (the "Capital Securities") and common interests in such BancorpSouth
Capital Trusts (the "Common Securities" and, collectively with the Capital
Securities, the "Trust Securities"), and to provide the terms and conditions
upon which the Securities are to be authenticated, issued and delivered.
NOW THEREFORE, THIS INDENTURE WITNESSETH: For and in
consideration of the premises and the purchase of the Securities by the Holders
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) The terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular.
<PAGE> 9
2
(2) All other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein.
(3) All accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles which are generally accepted at the date or time of such
computation; provided, that when two or more principles are so generally
accepted, it shall mean that set of principles consistent with those in use by
the Company.
(4) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Securities of any series the payment of which has
not been made on the applicable Interest Payment Date and which shall accrue at
the rate per annum specified or determined as specified in any Officers'
Certificate delivered pursuant to Section 3.01 of the Indenture.
"Additional Sums" has the meaning specified in Section 10.06.
"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; provided, however, that an Affiliate
of the Company shall not be deemed to include any BancorpSouth Capital Trust to
which Securities have been issued. 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.
"Agent Member" means any member of, or participant in, the
Depositary.
<PAGE> 10
3
"Amended and Restated Declaration of Trust" for each series of
Securities has the meaning specified in the Officers' Certificate for such
series delivered pursuant to Section 3.01 of this Indenture.
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities of one or more series.
"BancorpSouth Guarantee" means the guarantee by the Company of
the distributions on the Trust Securities of a BancorpSouth Capital Trust to
the extent of the Guarantee Agreement.
"BancorpSouth Capital Trust" has the meaning specified in the
first recital of this Indenture.
"Board of Directors" means either the board of directors of
the Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of the Company 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 Trustee.
"Business Day" means any day other than (i) a Saturday or
Sunday, (ii) 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 (iii) a
day on which the Corporate Trust Office of the Trustee, or, with respect to the
Securities of a series issued to a BancorpSouth Capital Trust, the principal
office of the Property Trustee under the related Trust Agreement, is closed for
business.
"Capital Securities" has the meaning specified in the first
recital of this Indenture.
"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 under 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 on such date.
<PAGE> 11
4
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock" means the common stock, $2.50 par value, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, the
written request or order signed in the name of the Company by the Chairman,
Chief Executive Officer, President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary
of the Company, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office as of the date of this Indenture is located at [Four
Albany Street, New York, New York 10006, Attention: Corporate Trust and Agency
Group--Corporate Market Services].
"Corporation" includes a corporation, association, company,
joint-stock company or business trust.
"Declaration of Trust" for each series of Securities has the
meaning specified in the Officers' Certificate for such series delivered
pursuant to Section 3.01 of this Indenture.
"Debt" means (i) the principal of and premium, if any, and
unpaid interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of, such
indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts
and similar arrangements; provided, however, that Debt shall not include trade
accounts payable or accrued liabilities in the ordinary course of business.
<PAGE> 12
5
"Defaulted Interest" has the meaning specified in Section
3.08.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 3.01 with respect to such series (or any successor thereto (a
"Successor Depositary")).
"Discount Security" means any security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Dollar" means the currency of the United States of America
that, as at the time of payment, is legal tender for the payment of public and
private debts.
"DTC" means The Depository Trust Company.
"Event of Default", unless otherwise specified in the
supplemental indenture creating a series of Securities, has the meaning
specified in Article V.
"Extension Period" has the meaning specified in Section 3.12.
"Federal Reserve" means the Board of Governors of the Federal
Reserve System.
"Foreign Currency" means any currency issued by the government
of one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Global Security" means a Security in the form prescribed in
Section 2.04 evidencing all or part of a series of Securities, issued to the
Depositary of its nominee for such series, and registered in the name of such
Depositary or its nominee.
"Guarantee Agreement" for each series of Securities has the
meaning specified in the Officers' Certificate for such series delivered
pursuant to Section 3.01 of this Indenture.
"Holder" means a Person in whose name a Security is registered
in the Securities Register.
<PAGE> 13
6
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of each particular series of Securities established
as contemplated by Section 3.01.
"Interest Payment Date" means as to each series of Securities
the Stated Maturity of an installment of interest on such Securities.
"Interest Rate" means the rate of interest specified or
determined as specified in each Security as being the rate of interest payable
on such Security.
"Investment Company Event" means the receipt by the Company of
an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or regulation or a change
(including any announced prospective change) in interpretation or application of
law or regulation by any legislative body, court, governmental agency or
regulatory authority, there is more than an insubstantial risk that the
affected BancorpSouth Capital Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of original issuance of the Capital Securities of such
affected BancorpSouth Capital Trust.
"Junior Subordinated Payment" has the meaning specified in
Section 14.02.
"Lien" means any mortgage, pledge, lien, security interest or
other encumbrance.
"Liquidation Amount" has the meaning specified in Section 1.01
of the Trust Agreement.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether as the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940.
"Officers' Certificate" means a certificate signed by the
Chairman and Chief Executive Officer, President, or Vice President, and by the
Treasurer, an Associate
<PAGE> 14
7
Treasurer, an Assistant Treasurer, the Controller, the Chief Financial Officer,
the Secretary or any Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company.
"Optional Prepayment Price" shall have a meaning specified in
Section 2.03.
"Original Issue Date" means the date of issuance specified as
such in each Security.
"Other Debentures" means, with respect to any series of
Securities, all junior subordinated debt securities to be issued by the Company
pursuant to this Indenture, other than such series of Securities, with
substantially similar subordination terms, and which will be issued and sold
(if at all) to any BancorpSouth Capital Trust established by the Company (if
any), and will be unsecured and subordinate and junior in right of payment to
the extent and to the manner set forth in this Indenture to all Senior Debt of
the Company.
"Other Guarantees" means, with respect to any series of
Securities, all guarantees (if any) to be issued by the Company with respect to
Capital Securities (if any) to be issued by any BancorpSouth Capital Trust to
be established by the Company (if any), other than the guarantee related to
such series of Securities.
"Outstanding" means, when used in reference to any Securities,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent in trust for the Holders of such Securities; and
(iii) Securities in substitution for or in lieu of which other
Securities have been authenticated and delivered or which have been
paid pursuant to Section 3.07, unless proof satisfactory to the
Trustee is presented that any such Securities are held by Holders in
whose hands such Securities are valid, binding and legal obligations
of the Company;
<PAGE> 15
8
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer actually knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
Upon the written request of the Trustee, the Company shall furnish the Trustee
promptly an Officers' Certificate listing and identifying all Securities, if
any, known by the Company to be owned or held by or for the account of the
Company, or any other obligor on the Securities or any Affiliate of the Company
or such obligor, and, subject to the provisions of Section 6.01, the Trustee
shall be entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal of (or premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, Corporation, limited liability
company, partnership, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of (and premium, if any)
and interest on the Securities of such series are payable pursuant to Sections
3.01 and 3.08.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any security authenticated and delivered under Section 3.07 in lieu
of a lost, destroyed or stolen Security shall be deemed to
<PAGE> 16
9
evidence the same debt as the lost, destroyed or stolen Security.
"Proceeding" has the meaning specified in Section 14.02.
"Property Trustee" means, in respect of any BancorpSouth
Capital Trust, the commercial bank or trust company identified as the "Property
Trustee" in the related Trust Agreement, solely in its capacity as Property
Trustee of such BancorpSouth Capital Trust under each Trust Agreement and not
in its individual capacity, or its successor in interest in such capacity, or
any successor property trustee appointed as therein provided.
"Redemption Date", when used with respect to any Security of a
series to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date with respect to the Securities of a series means, unless otherwise
provided pursuant to Section 3.01 with respect to Securities of a series, the
date which is the Business Day next preceding such Interest Payment Date.
"Regulatory Authorities" means the Federal Reserve or any
other state or federal regulatory agency having jurisdiction over the Company.
"Regulatory Capital Event" means the Company shall have
received an opinion of independent bank regulatory counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in the laws (or any regulations
thereunder) of the United States or any rules, guidelines or policies of the
Federal Reserve or any successor thereto having regulatory authority over the
capital requirements for the Company, or (b) any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of original issuance of the Capital
Securities, the Capital Securities do not constitute , or within 90 days of the
date thereof, will not constitute, Tier 1 capital (or its then equivalent);
provided, however, that the distribution of the Securities in connection with
the liquidation of the Trust by the Company and the treatment thereafter of the
Securities as other than Tier 1 capital shall not in and of itself constitute a
Regulatory Capital Event unless such
<PAGE> 17
10
liquidation shall have occurred in connection with a Special Event.
"Remaining Life" has the meaning specified in Section 2.03.
"Responsible Officer", when used with respect to the Trustee
means any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, 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.
"Securities" or "Security" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933.
"Securities Certificate" means a certificate evidencing
ownership of Securities.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.06.
"Senior Debt" with respect to any series of Securities means
the principal of (and premium, if any) and interest, if any (including interest
accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not such claim for
post-petition interest is allowed in such proceeding), on Debt of the Company,
whether incurred on or prior to the date of this Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Securities or the Other Debentures;
provided, however, that Senior Debt shall not be deemed to include (a) any Debt
of the Company which, when incurred and without respect to any election under
Section 1111(b) of the U.S. Bankruptcy Code of 1978, as amended, was without
recourse to the Company; (b) any Debt of the Company to any of its
Subsidiaries; (c) Debt to any employee of the Company; (d) Debt which by its
terms is subordinated to trade accounts payable or accrued liabilities arising
in the ordinary course of business to the extent that payments made to the
<PAGE> 18
11
holders of such Debt by the Holders as a result of the subordination provisions
of this Indenture would be greater than such payments otherwise would have been
as a result of any obligation of such holders of such Debt to pay amounts over
to the obligees on such trade accounts payable or accrued liabilities arising
in the ordinary course of business as a result of the subordination provisions
to which such Debt is subject; and (e) any other debt securities issued
pursuant to this Indenture.
"Special Event" has the meaning specified in Section 11.07.
"Special Event Prepayment Price" has the meaning specified in
Section 2.03.
"Special Record Date" for the payment of any Defaulted
interest means a date fixed by the Trustee pursuant to Section 3.08.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the date
specified pursuant to the terms of such Security as the date on which the
principal of such Security or such installment of interest is due and payable,
in the case of such principal, as such date may be shortened or extended as
provided pursuant to the terms of such Security and this Indenture.
"Subsidiary" means a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For purposes of this definition, "voting stock" means
stock which ordinarily has voting power for the election of directors, whether
at all times or only so long as no senior class of stock has such voting power
by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.07 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Tax Event" means the receipt by the Company of an opinion of
independent counsel experienced in such matters
<PAGE> 19
12
to the effect that, as a result of any amendment to, or change (including any
announced proposed change) in, the laws or any regulations thereunder of the
United States or any political subdivision or taxing authority thereof or
therein, or as a result of any official administrative pronouncement or
judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or which proposed change, pronouncement or
decision is announced on or after the Original Issue Date of the applicable
series of Securities or of the applicable Capital Securities issued by the
affected BancorpSouth Capital Trust, there is more than an insubstantial risk
that (x) if the Securities are held by or on behalf of the affected
BancorpSouth Capital Trust (i) such BancorpSouth Capital Trust is, or will be
within 90 days of the date of such opinion of independent counsel, subject to
United States federal income tax with respect to income received or accrued on
such Securities or subject to more than de minimus amount of other taxes,
duties or other governmental charges as determined by such counsel, or (ii)
interest payable by the Company on such series of Securities is not, or within
90 days of the date of such opinion of independent counsel, will not be,
deductible by the Company, in whole or in part, for United States federal
income tax purposes or (y) with respect to Securities which are no longer held
by the affected BancorpSouth Capital Trust, any portion of interest payable by
Company on the Securities is not, or within 90 days of the date of such opinion
will not be, deductible by the Company for United States federal income tax
purposes.
"Trust Agreement" with respect to each series of Securities
means the Declaration of Trust with respect to such series, as amended by the
Amended and Restated Declaration of Trust with respect to such series.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder
and, if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Section Section 77aaa-77bbbb), as amended and as
<PAGE> 20
13
in effect on the date of this Indenture, except as provided in Sections 1.07
and 9.05.
"Trust Securities" has the meaning specified in the first
recital of this Indenture.
"Vice President", when used with respect to the Company, means
any duly appointed vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 1.02. Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel that all legal matters contained within such conditions precedent
(including covenants compliance with which constitute a condition precedent),
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided regarding conditions or covenants waived by the Holders
pursuant to Section 10.05) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
<PAGE> 21
14
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Forms of Documents Delivered to Trustee. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one Person, or that they be
so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representation with respect to matters upon which his certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions, or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given to or taken by Holders, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and, where
it is hereby expressly required, to the Company. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as
<PAGE> 22
15
the "Act" of the Holders 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 Indenture and (subject to Section
6.01) conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any 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 Person acting in other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the same,
may also be proved in any other manner which the Trustee deems sufficient and
in accordance with such reasonable rules as the Trustee may determine.
(d) The ownership of Securities shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
(f) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to take any
action under this Indenture by vote or consent. Except as otherwise provided
herein, such record date shall be the later of 30 days prior to the first
solicitation of such consent or vote or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 7.01 prior to such
solicitation. If a record date is fixed, those persons who were Holders at such
record date (or their duly designated proxies), and only those persons, shall
be entitled to take such action by vote or consent or to revoke any vote or
consent previously given, whether or not such persons continue to be Holders
after such record date, provided, however, that unless such vote or consent is
<PAGE> 23
16
obtained from the Holders (or their duly designated proxies) of the requisite
principal amount of Outstanding Securities prior to the date which is the 120th
day after such record date, any such vote or consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
SECTION 1.05. Notices, Etc. to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.01 hereof) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 1.06. Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.07. Conflict with Trust Indenture Act. If any
provision of this Indenture limits, qualifies or conflicts with the duties
imposed by any of Section 310 to
<PAGE> 24
17
317, inclusive, of the Trust Indenture Act through operation of Section 318(c)
thereof, such imposed duties shall control.
SECTION 1.08. Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10. Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture. Nothing in this
Indenture or in the Securities, express or implied, shall give to any Person,
other than the parties hereto, any Paying Agent and their successors and
assigns, the holders of Senior Debt and the Holders of the Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law. This Indenture and the
Securities shall be governed by and construed in accordance with the laws of
the State of New York, without regard to principles of conflicts of laws.
SECTION 1.13. Non-Business Days. In any case where any
Interest Payment Date, Redemption Date or Stated Maturity of any Security shall
not be a Business Day, then (notwithstanding any other provision of this
Indenture or the Securities) payment of interest or principal need not be made
on such date, but may be made on the next succeeding Business Day (and no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, until such next
succeeding Business Day) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity, as
the case may be.
<PAGE> 25
18
ARTICLE II
Security Forms
SECTION 2.01. Forms Generally. The Securities of each series
and the Trustee's certificate of authentication shall be in substantially the
forms set forth in this Article, or in such other form or forms as shall be
established by or pursuant to a Board Resolution or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with applicable tax laws or the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such securities,
as evidenced by their execution of the Securities. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 3.03
with respect to the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods, if required by any
securities exchange on which the Securities may be listed, on a steel engraved
border or steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Securities distributed to holders of book-entry Capital
Securities shall be distributed in the form of one or more Global Securities
registered in the name of a Depositary or its nominee, and deposited with the
Securities Registrar, as custodian for such Depositary, or held by such
Depositary for credit by the Depositary to the respective accounts of the
beneficial owners of the Securities represented thereby (or such other accounts
they may direct). Securities distributed to holders of Capital Securities
other than book-entry Capital Securities shall not be issued in the form of a
Global Security or any other form intended to facilitate book-entry trading in
beneficial interests in such Securities.
<PAGE> 26
19
SECTION 2.02. Form of Face of Security. The form of the
face of each Security shall contain the information set forth below, with
provisions being included and/or modified if applicable, in light of the
designations made in the related Officers' Certificate for that series.
BANCORPSOUTH, INC.
(Title of Security)
No. $
BANCORPSOUTH, INC., a corporation organized and existing under
the laws of Mississippi (hereinafter called the "Company", which term includes
any successor corporation under the Indenture hereinafter referred to), for
value received, hereby promises to pay to , or its registered
assigns, the principal sum of Dollars on (the "Stated
Maturity"). The Company further promises to pay interest on said principal sum
from , or from the most recent interest payment date (each such date, an
"Interest Payment Date") on which interest has been paid or duly provided for,
[monthly] [quarterly] [semi-annually] [annually] [if applicable,
insert--(subject to deferral as set forth herein)], in arrears on [insert
applicable Interest Payment Dates] of each year, commencing , , at the rate of
% per annum, until the principal hereof shall have become due and payable, [if
applicable, insert--plus Additional Interest, if any,] until the principal
hereof is paid or duly provided for or made available for payment [if
applicable, insert--and on any overdue principal and (without duplication and
to the extent that payment of such interest is enforceable under applicable
law) on any overdue installment of interest at the rate of % per annum,
compounded [monthly] [quarterly] [semi-annually] [annually] as Additional
Interest]. [The amount of interest payable for any period shall be computed on
the basis of twelve 30-day months and a 360-day year. The amount of interest
payable 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.] In the event that any
date on which interest is payable on this Security is not a Business Day, then
a payment of the interest payable on such date will be made on the next
succeeding day which is a Business Day (and without any interest or other
payment in respect of any such delay), [except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case] with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than (i) a Saturday or Sunday, (ii) a day on
which
<PAGE> 27
20
banking institutions in The City of New York are authorized or required
by law or executive order to remain closed or (iii) a day on which the
Corporate Trust Office of the Trustee or the Corporate Trust Office of the
Property Trustee under the Trust Agreement hereinafter referred to for
BancorpSouth Capital Trust is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities, as defined in the Indenture)
is registered at the close of business on the Regular Record Date for such
interest installment, which shall be the [insert definition of Regular Record
Dates]. In addition, if this Security is issued in certificated form, the
record dates for payment of interest shall be the first day of the last month
of each [monthly] [quarterly] [semi-annual] [annual] period. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
[If applicable, insert--So long as no Event of Default has
occurred and is continuing, the Company shall have the right at any time during
the term of this Security, from time to time, to defer payment of interest on
such Security for up to consecutive [monthly] [quarterly] [semi-annual]
[annual] interest payment periods with respect to each deferral period (each an
"Extension Period"), during which Extension Periods the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent permitted by
applicable law); provided, however, that no Extension Period may extend beyond
the Maturity of this Security. During any such Extension Period, the Company
will not (i) declare or pay any dividends or distributions on or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock or (ii) make any payment of principal of, interest or
premium, if any, on or repay,
<PAGE> 28
21
repurchase or redeem any debt securities of the Company (including Other
Debentures) that ranks pari passu with or junior in interest to this Security
or (iii) make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company (including
Other Guarantees) if such guarantee ranks pari passu with or junior in interest
to this Security (other than (a) dividends or distributions in Common Stock of
the Company, (b) any declaration of a dividend in connection with the
implementation of a shareholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the applicable BancorpSouth Guarantee, (d)
purchases or acquisitions of shares of the Company's Common Stock in connection
with the satisfaction by the Company of its obligations under any employee
benefit plan or other contractual obligation of the Company (other than a
contractual obligation ranking pari passu with or junior to these Securities),
(e) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one class or series of the Company's capital stock
for another class or series of the Company's capital stock, or (f) the purchase
of fractional interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged). Prior to the termination of any such Extension
Period, the Company may further extend such Extension Period, provided,
however, that such extension does not cause such Extension Period to exceed
consecutive [monthly] [quarterly] [semi-annual] [annual] interest payment
periods or extend beyond the Maturity of this Security. Upon the termination of
any such Extension Period and the payment of all accrued and unpaid interest
and any Additional Interest then due, the Company may elect to begin a new
Extension Period, subject to the above requirements. No interest shall be due
and payable during an Extension Period except at the end thereof. The Company
shall give the Holder of this Security and the Trustee notice of its election
to begin any Extension Period at least five Business Days prior to the Interest
Payment Date, [if applicable, insert--or, with respect to the Securities issued
to a BancorpSouth Capital Trust, prior to the earlier of (i) the date the
Distributions on the Capital Securities would have been payable except for the
election to begin or extend such Extension Period or (ii) the date the
Administrative Trustees are required to give notice to any automated quotation
system or to holders of such Capital Securities of the record date or the date
such Distributions are payable, but in any event not less than five Business
Days prior to such record date]. There is no limitation on
<PAGE> 29
22
the number of times the Company may elect to begin an Extension Period.
Payment of the principal of (and premium, if any) and interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the United States, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert--; provided, however, that at
the option of the Company payment of any interest may be made (except Securities
in Global form) (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register or (ii) by wire
transfer in immediately available funds at such place and to such account as may
be designated by the Person entitled thereto as specified in the Securities
Register].
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Debt, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
actions as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney- in-fact for any and all
such purposes. Each Holder hereof, by his acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Debt, whether now outstanding or hereinafter
incurred, and waives reliance by each such holder upon said provisions.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse
<PAGE> 30
23
hereof by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Date: BANCORPSOUTH, INC.,
[Seal]
by
-----------------------------
[Chairman and Chief
Executive Officer,
President or
Vice President]
Attest:
- -------------------------
[Secretary or Assistant
Secretary]
SECTION 2.03. Form of Reverse of Security. This Security is
one of a duly authorized issue of securities of the Company (herein called the
"Securities"), issued and to be issued in one or more series under a Junior
Subordinated Indenture, dated as of [September ], 1997, as supplemented by
an Officers' Certificate dated as of [ ], (herein called the "Indenture"),
between the Company and [Bankers Trust Company], as Trustee (herein called the
"Trustee", which term includes any successor Trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties
and immunities thereunder of the Trustee, the Company and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $ ].
All terms used in this Security that are defined in the
Indenture [if applicable, insert--and in the Amended and Restated Declaration
of Trust of [insert the applicable BancorpSouth Capital Trust ], dated as of
[September ], 1997, as amended (the "Amended and Restated Declaration of
Trust"), among BancorpSouth, Inc., as Depositor, and the Trustees named
therein,] shall have the meanings assigned to
<PAGE> 31
24
them in the Indenture or, to the extent not defined in the Indenture, the
Amended and Restated Declaration of Trust, as the case may be.
[If applicable, insert--On or after , the Company
may at any time, at its option, subject to the terms and conditions of Article
XI of the Indenture and subject to the Company having received prior approval
of the Regulatory Authorities if then required under applicable capital
guidelines of the Regulatory Authorities, redeem this Security in whole or in
part at any time or from time to time prior to maturity, at a redemption price
(the "Optional Prepayment Price") equal to the following prices, expressed in
percentages of the principal amount of the Securities together with accrued but
unpaid interest to but excluding the date fixed for redemption. If redeemed
during the 12-month period beginning :
<TABLE>
<CAPTION>
Redemption
Year Price
---- ----------
<S> <C>
[Insert year and
redemption prices]
</TABLE>
and at 100% on or after .]
[If applicable, insert-- If a Tax Event, a Regulatory Capital
Event or an Investment Company Event (each a "Special Event") shall occur and be
continuing, the Company may, at its option and subject to receipt of prior
approval of the Regulatory Authorities if then required under applicable capital
guidelines or policies of the Regulatory Authorities and subject to the
provisions of Article XI of the Indenture, prepay the Securities prior to
within 90 days after the occurrence of such Special Event, in whole (but not in
part), at a prepayment price (the "Special Event Prepayment Price") equal to
100% of the principal amount of such Securities. In the case of redemption on
or after following a Special Event, the Special Event Prepayment Price shall
equal the Optional Prepayment Price applicable to a redemption as described
above.
In the event of redemption of this Security in part only, a
new Security or Securities of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
<PAGE> 32
25
[If the Security is not a Discount Security,--If an Event of
Default with respect to Securities of this series shall occur and be
continuing, the principal of this Security may be declared due and payable in
the manner, with the effect and subject to the conditions provided in the
Indenture].
[If the Security is a Discount Security,--If an Event of
Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of this Security may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture. Such amount shall be equal to [-- insert formula for
determining the amount]. Upon payment (i) of the amount of principal so
declared due and payable and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of the principal of and interest, if any, on this Security shall
terminate.]
The Indenture permits, with certain exceptions as therein
provided, the Company and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company and of the Holders of the Securities, with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series to be affected by such supplemental
indenture. The Indenture also contains provisions permitting Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
[If the Security is not a Discount Security,--As provided in
and subject to the provisions of the Indenture, if an Event of Default with
respect to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities of this
series may declare the
<PAGE> 33
26
aggregate principal amount of all the Securities of this series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), provided, however, that, in the case of the Securities of
this series issued to a BancorpSouth Capital Trust, if upon an Event of
Default, the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of this series fails to declare the
principal of all the Securities of this series to be immediately due and
payable, the holders of at least 25% in aggregate Liquidation Amount of the
corresponding series of Capital Securities then outstanding shall have such
right by a notice in writing to the Company and the Trustee. The Holders of a
majority in aggregate principal amount of the Outstanding Securities of this
series may annul such declaration and waive the default by written notice to
the Property Trustee, the Company and the Trustee if the default (other than
the non-payment of the principal of these Securities which has become due
solely by such acceleration) 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 Trustee. Should the Holders of these
Securities fail to annul such declaration and waive such default, the holders
of a majority in aggregate Liquidation Amount of the Capital Securities shall
have such right. Upon any such declaration such specified amount of and the
accrued interest (including any Additional Interest) on all the Securities of
this series shall become immediately due and payable, provided that the payment
of principal and interest (including any Additional Interest) on such
Securities shall remain subordinated to the extent provided in Article XIV of
the Indenture.]
[If the Security is a Discount Security,--As provided in and
subject to the provisions of the Indenture, if an Event of Default with respect
to the Securities of this series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
than such portion of the principal amount as may be specified in the terms of
this series of all the Securities of this series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), provided that, in the case of the Securities of this series issued
to a BancorpSouth Capital Trust, if upon an Event of Default, the Trustee or
the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of this series fails to declare the principal of all the
Securities of this series to be immediately due and payable, the holders of at
least 25% in aggregate Liquidation Amount of the corresponding
<PAGE> 34
27
series of Capital Securities then outstanding shall have such right by a notice
in writing to the Company and the Trustee. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of this series may
annul such declaration and waive the default if the default (other than the
nonpayment of the principal of these Securities which has become due solely by
such acceleration) 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 Trustee. Should the Holders of these Securities fail to
annul such declaration and waive such default, the holders of a majority in
aggregate Liquidation Amount of the Capital Securities shall have such right.
Upon any such declaration of such principal amount and the accrued interest
(including any Additional Interest) on all the Securities of this series shall
become immediately due and payable, provided that the payment of principal and
interest (including any Additional Interest) on such Securities shall remain
subordinated to the extent provided in Article XIV of the Indenture.]
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Security at the times, place and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registrable in
the Securities Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company maintained pursuant to Section
10.02 of the Indenture duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Securities Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing
and thereupon one or more new Securities of this series, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees. No service charge shall be made for
any such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
shall treat the Person in whose name this Security is registered as the owner
<PAGE> 35
28
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Securities of this series are issuable only in registered
form without coupons in denominations of $ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of such series of a different
authorized denomination, as requested by the Holder surrendering the same.
The Company and, by its acceptance of this Security or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Security intend that such Security constitute
indebtedness and agree to treat such Security as indebtedness for all United
States federal, state and local tax purposes.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 2.04. Additional Provisions Required in Global
Security. Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 2.02 and 2.03, bear a legend in substantially
the following form:
"This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of The Depository
Trust Company (the "Depositary") or a nominee of the Depositary. This
Security is exchangeable for Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture and no transfer of this
Security (other than a transfer of this Security 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 limited circumstances.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York) to
BancorpSouth, Inc. or its agent for registration of transfer, exchange
or payment, and any Security issued is registered in the name of Cede
& Co. or such other name as requested by
<PAGE> 36
29
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."
SECTION 2.05. Form of Trustee's Certificate of
Authentication. This is one of the Securities referred to in the within
mentioned Indenture:
----------------------------------
as Trustee
By:
-------------------------------
Authorized Signatory
ARTICLE III
The Securities
SECTION 3.01. Title and Terms. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of a series:
(a) the title of the securities of such series, which shall
distinguish the Securities of the series from all other Securities;
(b) the limit, if any, upon the aggregate principal amount of
the Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.04,
3.06, 3.07, 9.06 or 11.06); provided, however, that the authorized
aggregate principal amount of such series may be increased above such
amount by a Board Resolution to such effect;
<PAGE> 37
30
(c) the Stated Maturity or Maturities on which the principal
of the Securities of such series is payable or the method of
determination thereof;
(d) the rate or rates, if any, at which the Securities of such
series shall bear interest, if any, the rate or rates and extent to
which Additional Interest, if any, shall be payable in respect of any
Securities of such series, the Interest Payment Dates on which such
interest shall be payable, the right, pursuant to Section 3.12 or as
otherwise set forth therein, of the Company to defer or extend an
Interest Payment Date, and the Regular Record Date for the interest
payable on any Interest Payment Date or the method by which any of the
foregoing shall be determined;
(e) the place or places where the principal of (and premium,
if any) and interest on the Securities of such series shall be
payable, the place or places where the Securities of such series may
be presented for registration of transfer or exchange, and the place
or places where notices and demands to or upon the Company in respect
of the Securities of such series may be made;
(f) the period or periods within or the date or date on which,
if any, the price or prices at which and the terms and conditions upon
which the Securities of
such series may be redeemed, in whole or in part, at the option of the
Company;
(g) the obligation or the right, if any, of the Company to
redeem, repay or purchase the Securities of such series pursuant to
any sinking fund, amortization or analogous provisions, or at the
option of a Holder thereof, and the period or periods within which,
the prices or prices at which, the currency or currencies (including
currency unit or units) in which and the other terms and conditions
upon which Securities of the series shall be redeemed, repaid or
purchased, in whole or in part, pursuant to such obligations;
(h) the denominations in which any Securities of such series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(i) if other than Dollars, the currency or currencies
(including currency unit or units) in which the principal of (and
premium, if any) and interest, if
<PAGE> 38
31
any, on the Securities of the series shall be payable, or in which the
Securities of the series shall be denominated and the manner of
determining the equivalent thereof in Dollars for purposes of the
definition of the term "Outstanding";
(j) the additions, modifications or deletions, if any, in the
Events of Default or covenants of the Company set forth herein with
respect to the Securities of such series;
(k) if other than the principal amount thereof, the portion of
the principal amount of Securities of such series that shall be
payable upon declaration of acceleration of the Maturity thereof;
(l) the additions or changes, if any, to this Indenture with
respect to the Securities of such series as shall be necessary to
permit or facilitate the issuance of the Securities of such series in
bearer form, registrable or not registrable as to principal, and with
or without interest coupons;
(m) any index or indices used to determine the amount of
payments of principal of and premium, if any, on the Securities of
such series or the manner in which such amounts will be determined;
(n) the issuance of a temporary Global Security representing
all of the Securities of such series and exchange of such temporary
Global Security for definitive Securities of such series;
(o) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Securities, which Depositary
shall be a clearing agency registered under the Securities Exchange
Act of 1934;
(p) the appointment of any Paying Agent or Agents for the
Securities of such series;
(q) the terms of any right to convert or exchange Securities
of such series into any other securities or property of the Company,
and the additions or changes, if any, to this Indenture with respect
to the Securities of such series to permit or facilitate such
conversion or exchange;
<PAGE> 39
32
(r) the transfer restrictions and legends required to be on
the Securities;
(s) the definitions of Amended and Restated Declaration of
Trust, Declaration of Trust and Guarantee Agreement for each series;
(t) the relative degree, if any, to which the Securities of
the series shall be senior to or be subordinated to other series of
Securities in right of payment, whether such other series of
Securities are Outstanding or not; and
(u) any other terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided
herein or in or pursuant to such Board Resolution and set forth in such
Officers' Certificate or in any such indenture supplemental hereto.
Unless otherwise provided with respect to the
Securities of any series, at the option of the Company, interest on the
Securities of any series that bears interest may be paid by (i) mailing a check
to the address of the person entitled thereto as such address shall appear in
the Securities Register or (ii) wire transfer in immediately available funds at
such place and to such account as may be designated by the person entitled
thereto as specified in the Securities Register.
SECTION 3.02. Denominations. The Securities of each series
shall be in registered form without coupons and shall be issuable in
denominations of $1,000 and any integral multiple thereof, unless otherwise
specified as contemplated by Section 3.01.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its President or one of its Vice Presidents and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and
<PAGE> 40
33
delivery of such Securities or did not hold such offices at the date of such
Securities. At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company
to the Trustee for authentication. Securities may be authenticated on original
issuance from time to time and delivered pursuant to such procedures acceptable
to the Trustee ("Procedures") as may be specified from time to time by Company
Order. Procedures may authorize authentication and delivery pursuant to oral
instructions of the Company or a duly authorized agent, which instructions
shall be promptly confirmed in writing.
Prior to the delivery of a Security in any such form to the
Trustee for authentication, the Company shall deliver to the Trustee the
following:
(a) a Company Order requesting the Trustee's authentication
and delivery of all or a portion of the Securities of such series, and
if less than all, setting forth procedures for such authentication;
(b) the Board Resolution by or pursuant to which such form of
Security has been approved, and the Board Resolution, if any, by or
pursuant to which the terms of the Securities of such series have been
approved, and, if pursuant to a Board Resolution, an Officers'
Certificate describing the action taken;
(c) an Officers' Certificate dated the date such certificate
is delivered to the Trustee, stating that all conditions precedent
provided for in this Indenture relating to the authentication and
delivery of Securities in such form and with such terms have been
complied with; and
(d) an Opinion of Counsel substantially to the effect that (i)
the form of such Securities has been duly authorized and approved in
conformity with the provisions of this Indenture; (ii) the terms of
such Securities have been duly authorized and determined in conformity
with the provisions of this Indenture, or, if such terms are to be
determined pursuant to Procedures, as defined above, when so
determined such terms shall have been duly authorized and determined
in conformity with the provisions of this Indenture; and (iii)
Securities in such form when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this
<PAGE> 41
34
Indenture within the authorization as to aggregate principal amount
established from time to time by the Board of Directors and sold in
the manner specified in such Opinion of Counsel, will be the legal,
valid and binding obligations of the Company entitled to the benefits
of this Indenture, subject to applicable bankruptcy, reorganization,
insolvency and similar laws generally affecting creditors' rights, to
general equitable principles and except as enforcement thereof may be
limited by (A) requirements that a claim with respect to any
Securities denominated other than in Dollars (or a Foreign Currency or
currency unit judgment in respect of such claim) be converted into
Dollars at a rate of exchange prevailing on a date determined pursuant
to applicable law or (B) governmental authority to limit, delay or
prohibit the making of payments in Foreign Currencies or
currency units or payments outside the United States, and subject to
such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities.
The Trustee shall be entitled to receive the documents
referred to in clauses (b) and (d) above only at or prior to the first request
of the Company to the Trustee to authenticate Securities of such series.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture, or be valid or obligatory for any purpose, unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 3.04. Temporary Securities. Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any denomination, substantially of the tenor of the definitive
Securities of such series in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
<PAGE> 42
35
If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at the office or agency of the Company
designated for that purpose without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations having the same Original Issue Date and Stated Maturity and
having the same terms as such temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.05. Global Securities. (a) Each Global Security
issued under this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof and
delivered to such Depositary or a nominee thereof or custodian therefor, and
each such Global Security shall constitute a single Security for all purposes
of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (a) such Depositary advises the Trustee in writing that
such Depositary is no longer willing or able to properly discharge its
responsibilities as Depositary with respect to such Global Security, and the
Company is unable to locate a qualified successor, (b) the Company executes and
delivers to the Trustee a Company Order stating that the Company elects to
terminate the book-entry system through the Depositary, (c) there shall have
occurred and be continuing an Event of Default or (d) pursuant to the following
sentence. All or any portion of a Global Security may be exchanged for a
Security that has a like aggregate principal amount and is not a Global
Security upon 20 days' prior request made by the Depositary or its Agent Member
to the Securities Registrar.
(c) If any Global Security is to be exchanged for other
Securities or cancelled in whole, it shall be surrendered by or on behalf of
the Depositary or its nominee
<PAGE> 43
36
to the Securities Registrar for exchange or cancelation as provided in this
Article III. If any Global Security is to be exchanged for other Securities or
cancelled in part, or if another Security is to be exchanged in whole or in
part for a beneficial interest in any Global Security, then either (i) such
Global Security shall be so surrendered for exchange or cancelation as provided
in this Article III or (ii) the principal amount thereof shall be reduced,
subject to Section 3.06(b)(iv), or increased by an amount equal to the portion
thereof to be so exchanged or cancelled, or equal to the principal amount of
such other Security to be so exchanged for a beneficial interest therein, as
the case may be, by means of an appropriate adjustment made on the records of
the Securities Registrar, whereupon the Trustee shall instruct the Depositary
or its authorized representative to make a corresponding adjustment to its
records. Upon any such surrender or adjustment of a Global Security by the
Depositary, accompanied by registration instructions, the Trustee shall,
subject to Section 3.05(b) and as otherwise provided in this Article III,
authenticate and deliver any Securities issuable in exchange for such Global
Security (or any portion thereof) in accordance with the instructions of the
Depositary. The Trustee shall not be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be fully protected in
relying on, such instructions.
(d) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under this Indenture and the Securities, and owners of beneficial interests in
a Global Security shall hold such interest pursuant to the rules and procedures
of the Depositary. Accordingly, any such owner's beneficial interests in a
Global Security shall be shown only on, and the transfer of such interest shall
be effected only through, records maintained by the Depositary or its nominee
or its Agent Members. Neither the Trustee nor the Securities Registrar shall
have any liability in respect of any transfers effected by the Depositary.
(e) The rights of the beneficial interests in a Global
Security shall be exercised only through the Depositary and shall be limited to
those established by law and agreements between such owners and the Depositary
and/or its Agent Members.
SECTION 3.06. Registration, Transfer and Exchange Generally;
Certain Transfers and Exchanges. (a) The Company shall cause to be kept at the
Corporate Trust Office of the Trustee a register in which, subject to such
reasonable regulations as it may prescribe, the Company
<PAGE> 44
37
shall provide for the registration of the Securities and of transfers of
Securities. Such register is herein sometimes referred to as the "Securities
Register". The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering the Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of the
same series of any authorized denominations, of a like aggregate principal
amount, of the same Original Issue Date and Stated Maturity and having the same
terms.
At the option of the Holder, Securities may be exchanged for
other Securities of the same series of any authorized denominations, of a like
aggregate principal amount, of the same Original Issue Date and Stated Maturity
and having the same terms, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the Company or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer
or exchange of Securities, but the Company 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 Securities.
Neither the Company nor the Trustee shall be required,
pursuant to the provisions of this Section, (a) to issue, transfer or exchange
any Security of any series
<PAGE> 45
during a period beginning at the opening of business 15 days before the day of
mailing of a notice of redemption of Securities pursuant to Article XI and
ending at the close of business on the day of mailing of notice of redemption
or (b) to transfer or exchange any Security so selected for redemption in whole
or in part, except, in the case of any Security to be redeemed in part, any
portion thereof not to be redeemed.
(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of the Indenture, transfers and exchanges of Securities and
beneficial interests in a Global Capital Security of the kinds specified in
this Section 3.06(b) shall be made only in accordance with this Section
3.06(b).
(i) Non-Global Security to Global Security. If the Holder
of a Security (other than a Global Security) wishes at any time to transfer all
or any portion of such Security to a Person who wishes to take delivery thereof
in the form of a beneficial interest in a Global Security, such transfer may be
effected only in accordance with the provisions of this clause (b)(i) and
subject to the rules and procedures of the Depositary. Upon receipt by the
Securities Registrar of (A) such Security as provided in Section 3.06(a) and
instructions satisfactory to the Securities Registrar directing that a
beneficial interest in the Global Security in a specified principal amount not
greater than the principal amount of such Security be credited to a specified
Agent Member's account and (B) a Securities Certificate duly executed by such
Holder or such Holder's attorney duly authorized in writing, then the Securities
Registrar shall cancel such Security (and issue a new Security in respect of the
untransferred portion thereof) as provided in Section 3.06(a) and increase the
aggregate principal amount of the Global Security by the specified principal
amount as provided in Section 3.05(c).
(ii) Non-Global Security to Non-Global Security. A Security
that is not a Global Security may be transferred, in whole or in part, to a
Person who takes delivery in the form of another Security that is not a Global
Security as provided in Section 3.06(a).
(iii) Exchanges between Global Security and Non-Global
Security. A beneficial interest in a Global Security may be exchanged for a
Security that is not a Global Security as provided in Section 3.05.
(iv) Limitations Relating to Principal Amount.
Notwithstanding any other provision of this Indenture
<PAGE> 46
39
and unless otherwise specified as permitted by Section 3.01, Securities or
portions thereof may be transferred or exchanged only in principal amounts of
not less than $1,000 and integral multiples of $1,000 in excess thereof. Any
transfer, exchange or other disposition of Securities in contravention of the
Section 3.06(b)(iv) shall be deemed to be void and of no legal effect
whatsoever, any such transferee shall be deemed not to be the Holder or owner
of any beneficial interest in such Securities for any purpose, including but
not limited to the receipt of interest payable on such Securities, and such
transferee shall be deemed to have no interest whatsoever in such Securities.
SECTION 3.07. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or the
Trustee to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Security of
the same issue and series of like tenor and principal amount, having the same
Original Issue Date and Stated Maturity and bearing the same Interest Rate as
such mutilated Security, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the
issuing Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same issue and series of like tenor and
principal amount, having the same Original Issue Date and Stated Maturity and
bearing the same Interest Rate as such destroyed, lost or stolen Security, and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
<PAGE> 47
40
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
Interest on any Security of any series which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date, shall be paid to the Person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest in respect of Securities of such series, except that, unless otherwise
provided in the Securities of such series, interest payable on the Stated
Maturity of a Security shall be paid to the Person to whom principal is paid.
The initial payment of interest on any Security of any series which is issued
between a Regular Record Date and the related Interest Payment Date shall be
payable as provided in such Security or in the Board Resolution pursuant to
Section 3.01 with respect to the related series of Securities.
Any interest on any Security which is payable, but is not
timely paid or duly provided for, on any Interest Payment Date for Securities
of such series (herein called "Defaulted Interest"), shall forthwith cease to
be payable to the registered Holder on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series in respect
of which interest is in default (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall
<PAGE> 48
41
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class, postage prepaid, to each Holder of a
Security of such series at the address of such Holder as it appears in the
Securities Register not less than 10 days prior to such Special Record Date.
The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a newspaper,
customarily published in the English language on each Business Day and of
general circulation in the Borough of Manhattan, The City of New York, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are registered on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of the series in respect of which
interest is in default may be listed and, upon such notice as may be required
by such exchange (or by the Trustee if the Securities are not listed), if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
<PAGE> 49
42
SECTION 3.09. Persons Deemed Owners. The Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name any Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and (subject to Section 3.08)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary. No
holder of any beneficial interest in any Global Security held on its behalf by
a Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company or the Trustee from giving effect to any
written certification, proxy, or other authorization furnished by a Depositary
or impair, as between the Depositary and such holders of beneficial interests,
the operation of customary practices governing the exercise of the rights of
the Depositary (or its nominee) as Holder of any Security.
SECTION 3.10. Cancellation. All Securities surrendered for
payment, redemption, transfer or exchange shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Securities
and Securities surrendered directly to the Trustee for any such purpose shall
be promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Securities shall be destroyed by the Trustee and the
Trustee shall deliver to the Company a certificate of such destruction.
SECTION 3.11. Computation of Interest. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series for any period shall be computed on
the basis of a 360-day year of twelve 30-day months and interest on the
Securities of each series 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.
<PAGE> 50
43
SECTION 3.12. Deferrals of Interest Payment Dates. If
specified as contemplated by Section 3.01 with respect to the Securities of a
particular series, provided that no Event of Default has occurred and is
continuing with respect to the Securities, the Company shall have the right, at
any time or from time to time during the term of such series, to defer the
payment of interest on such Securities for such period or periods as may be
specified as contemplated by Section 3.01 (each, an "Extension Period") during
which Extension Periods the Company shall have the right to make partial
payments of interest on any Interest Payment Date. No Extension Period shall
end on a date other than an Interest Payment Date. At the end of any such
Extension Period the Company shall pay all interest then accrued and unpaid on
the Securities (together with Additional Interest thereon, if any, at the rate
specified for the Securities of such series to the extent permitted by
applicable law), provided, however, that no Extension Period may extend beyond
the Stated Maturity of these Securities. During any such Extension Period, the
Company shall not (i) declare or pay dividends or distributions on, or redeem,
purchase, acquire or make a liquidation payment with respect to, any of the
Company's capital stock, or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company (including Other Debentures) that rank pari passu with or junior in
interest to the Securities of such series or (iii) make any guarantee payments
with respect to any guarantee by the Company of the debt securities of any
Subsidiary of the Company (including Other Guarantees) if such guarantee ranks
pari passu with or junior in interest to the Securities of such series (other
than (a) dividends or distributions in common stock of the Company, (b) any
declaration of a dividend in connection with the implementation of a
shareholders' rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(c) payments under the applicable BancorpSouth Guarantee, (d) purchases or
acquisitions of shares of the Company's Common Stock in connection with the
satisfaction by the Company of its obligations under any employee benefit plan
or other contractual obligation of the Company (other than a contractual
obligation ranking pari passu with or junior to these Securities, (e) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, or (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior
<PAGE> 51
44
to the termination of any such Extension Period, the Company may further extend
such Extension Period; provided, however, that no Extension Period shall exceed
the period or periods specified in such Securities or extend beyond the Stated
Maturity of such Securities. Upon termination of any Extension Period and upon
the payment of all accrued and unpaid interest and any Additional Interest then
due on any Interest Payment Date, and subject to the foregoing limitations, the
Company may elect to begin a new Extension Period. No interest shall be due and
payable during an Extension Period, except at the end thereof. The Company
shall give the Holders of the Securities of such series and the Trustee and the
Property Trustee notice of its election to begin any such Extension Period (or
an extension thereof) at least five Business Days prior to the Interest Payment
Date or, with respect to the Securities of a series issued to a BancorpSouth
Capital Trust, prior to the earlier of (i) the date the Distributions on the
Trust Securities of such BancorpSouth Capital Trust would have been payable
except for the election to begin or extend such Extension Period or (ii) the
date the Administrative Trustees of such BancorpSouth Capital Trust are
required to give notice to any automated quotation system or to holders of
Trust Securities of the record date or the date such Distributions are payable,
but in any event not less than five Business Days prior to such record date.
There is no limitation on the number of times that the Company may elect to
begin an Extension Period.
SECTION 3.13. Agreed Tax Treatment. Each Security issued
hereunder shall provide that the Company and, by its acceptance of a Security
or a beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Security intend that such Security constitute
indebtedness and agree to treat such Security as indebtedness for all United
States federal, state and local tax purposes.
SECTION 3.14. CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption or other related
material as a convenience to Holders; provided, however, that any such notice
or other related material may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption or other related material and that reliance may
be placed only on the other identification numbers printed on the Securities,
and any such redemption shall not be affected by any defect in or omission of
such numbers.
<PAGE> 52
45
ARTICLE IV
Satisfaction and Discharge
SECTION 4.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to (i) any surviving
rights of transfer, substitution and exchange of Securities, (ii) rights
hereunder of Holders to receive payments of principal of (and premium, if any)
and interest on the Securities and other rights, duties and obligations of the
Holders as beneficiaries hereof with respect to the amounts, if any, deposited
with the Trustee pursuant to this Article IV and (iii) the rights and
obligations of the Trustee hereunder), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.07 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year of the date of
deposit,
and the Company, in the case of Clause (B)(i) or (B)(ii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount in the currency or currencies in
which the Securities of such series are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest (including any Additional Interest) to the date
of such deposit (in the case of
<PAGE> 53
46
Securities which have become due and payable) or to the Stated
Maturity;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of clause
(1) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 10.03 shall survive.
SECTION 4.02. Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.03, all money deposited with the
Trustee pursuant to Section 4.01, shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for the payment of which such money or obligations have been
deposited with or received by the Trustee; provided, however, that such moneys
need not be segregated from other funds except to the extent required by law.
ARTICLE V
Remedies
SECTION 5.01. Events of Default. "Event of Default",
wherever used herein with respect to the Securities of any series, 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
<PAGE> 54
47
order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Security
of that series, including any Additional Interest in respect thereof,
when it becomes due and payable, and continuance of such default for a
period of 30 days (subject to the deferral of any due date in the case
of an Extension Period); or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when due, whether at its
Maturity, upon redemption, by declaration of acceleration or
otherwise; or
(3) default in the performance, or breach, in any material
respect, of any covenant or warranty of the Company in this Indenture
(other than a covenant or warranty a default in the performance of
which or the breach of which is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of
90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in aggregate outstanding principal amount of
the Securities of that series a written notice specifying such default
or breach and requiring it to be remedied; or
(4) the entry or a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company 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 the Company 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
(5) the institution by the Company 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
<PAGE> 55
48
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 other similar official) of the Company or of
any substantial part of its property, or the making by it of an
assignment for the benefit for 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 the Company in furtherance of any such action; or
(6) in respect of a series issued to a BancorpSouth Capital
Trust, the voluntary or involuntary dissolution, winding-up or
termination of a BancorpSouth Capital Trust, except in connection with
the distribution of the Securities to the holders of Trust Securities
in liquidation of such BancorpSouth Capital Trust, the redemption of
all the Trust Securities of a BancorpSouth Capital Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the
applicable Trust Agreement; or
(7) any other Event of Default with respect to Securities of
that series as may be specified in an Officers' Certificate or
supplemental indenture pursuant to Section 3.01 hereof.
SECTION 5.02. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Outstanding Securities of that series may declare the principal amount (or,
if the Securities of that series are Discount Securities, such portion of the
principal amount as may be specified in the terms of that series) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), provided,
however, that, in the case of the Securities of a series issued to a
BancorpSouth Capital Trust, if, upon an Event of Default, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities of that series fail to declare the principal of all the Securities
of that series to be immediately due and payable, the holders of at least 25%
in aggregate Liquidation Amount of the corresponding series of Capital
Securities then outstanding shall have such right by a notice in writing to the
Company and the Trustee. The Holders of a majority in aggregate principal
amount of the
<PAGE> 56
49
Outstanding Securities of these Securities may annul such declaration and waive
the default by written notice to the Property Trustee, the Company and the
Trustee if the default (other than the nonpayment of the principal of the
Securities of such a series which has become due solely by such acceleration)
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
Trustee. Should the Holders of the Securities of such a series fail to annul
such declaration and waive such default, the holders of a majority in aggregate
Liquidation Amount of the Capital Securities shall have such right. Upon any
such declaration such principal amount (or specified amount) of and the accrued
interest (including any Additional Interest) on all the Securities of such
series shall become immediately due and payable, provided, however, that the
payment of principal and interest (including any Additional Interest) on such
Securities shall remain subordinated to the extent provided in Article XIV.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue installments of interest (including
any Additional Interest) on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate borne by the Securities, and
(C) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of Securities of
that series which has
<PAGE> 57
50
become due solely by such acceleration, have been cured or waived as
provided in Section 5.13.
The Holders of a majority in aggregate outstanding principal
amount of the Securities of a series affected thereby may, on behalf of the
Holders of all the Securities of such series, waive any past default, except a
default in the payment of principal of (or premium, if any) 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 Trustee) or a default in respect of a covenant or
provision which under this Indenture cannot be modified or amended without the
consent of the Holder of each outstanding Security of such series and, in the
case of Securities of a series issued to a BancorpSouth Capital Trust, should
the holders of such Securities fail to annul such declaration and waive such
default, the holders of a majority in aggregate Liquidation Amount of the
related series of Capital Securities shall have such right. The Company is
required to file annually with the Trustee a certificate as to whether or not
the Company is in compliance with all the conditions and covenants applicable
to it under this Indenture.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring such
an acceleration, or rescission and annulment thereof, with respect to
Securities of a series all or part of which is represented by a Global
Security, a record date shall be established for determining Holders of
Outstanding Securities of such series entitled to join in such notice, which
record date shall be at the close of business on the day the 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,
however, 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 cancelled 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,
<PAGE> 58
51
that is identical to a written notice which has been cancelled 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 5.02.
SECTION 5.03. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest (including any Additional Interest) on any Security when such
interest becomes due and payable and such default continues for a
period of 30 days (subject to the deferral of any due date in the case
of an Extension Period), or
(2) default is made in the payment of the principal of (and
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal, including any sinking fund payment or
analogous obligations (and premium, if any) and interest (including any
Additional Interest); and, in addition thereto, all amounts owing to the
Trustee under Section 6.07 and Section 10.06.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
<PAGE> 59
52
SECTION 5.04. Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors,
(a) the Trustee (irrespective of whether the principal of the
Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment
of overdue principal (and premium, if any) or interest (including any
Additional Interest)) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Securities and to file such other papers or documents as may
be necessary or advisable and to take any and all actions as
are authorized under the Trust Indenture Act in order to have
the claims of the Holders and any predecessor to the Trustee
under Section 6.07 and of the Holders allowed in any such
judicial proceedings; and
(ii) in particular, the Trustee shall be authorized
to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.06; and
(b) 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 Trustee for distribution in accordance with Section 5.06, and
in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due
to it and any predecessor Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to
<PAGE> 60
53
authorize the Trustee to vote in respect of the claim of any Holder in any
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
SECTION 5.05. Trustee May Enforce Claim Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of all the amounts owing the Trustee and
any predecessor Trustee under Section 6.07, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. Application of Money Collected. Any money or
property collected or to be applied by the Trustee with respect to a series of
Securities pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or interest
(including any Additional Interest), upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
First: to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.07;
Second: to the payment of the amounts then due and unpaid
upon such series of Securities for principal (and premium, if any) and
interest (including any Additional Interest), in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts
due and payable on such series of Securities for principal (and
premium, if any) and interest (including any Additional Interest),
respectively; and
Third: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.07. Limitation on Suits. No Holder of any
Securities of any series shall have any right to institute any proceeding,
judicial or otherwise, with
<PAGE> 61
respect to this Indenture or for the appointment of a receiver, assignee,
trustee, liquidator, sequestrator (or other similar official) or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities of that series shall have made
written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60- day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Securities, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.08. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right which is absolute
and unconditional to receive payment of the principal of (and premium, if any)
and (subject to Section 3.08) interest (including any Additional Interest) on
such Security on the respective Stated Maturities expressed in such Security
and to institute suit for the enforcement of any such payment, and such right
shall not be impaired without the consent of such Holder. In the case of
Securities of a series issued to a BancorpSouth Capital Trust, any holder of
the
<PAGE> 62
55
corresponding series of Capital Securities shall have the right, upon the
occurrence of an Event of Default described in Section 5.01(1) or 5.01(2)
hereof, to institute a suit directly against the Company for enforcement of
payment to such Holder of principal of (and premium, if any) and (subject to
Section 3.08) interest (including any Additional Interest) on the Securities
having a principal amount equal to the aggregate Liquidation Amount of the
Capital Securities of the corresponding series held by such Holder.
Notwithstanding any payments made to a holder of Capital Securities by the
Company in connection with a suit directly against the Company, the Company
shall remain obligated to pay the principal of or interest on the Securities,
and the Company shall be subrogated to the rights of the holder of such Capital
Securities with respect to payments on the Capital Securities to the extent of
any payments made by the Company to such holder in any suit directly against
the Company.
The holders of the Capital Securities will not be able to
exercise directly any remedies, other than those set forth in this Section
5.08, available to the holders of the Securities unless there shall have been
an Event of Default under the Trust Agreement.
SECTION 5.09. Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every case the Company, the Trustee and the Holders
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as
otherwise provided in the last paragraph of Section 3.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
<PAGE> 63
56
SECTION 5.11. Delay or Omission Not Waiver. Except as
otherwise provided in the last paragraph of Section 3.07, no delay or omission
of the Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders as the case may be.
SECTION 5.12. Control by Holders. The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of
law or with this Indenture;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) subject to the provisions of Section 6.01, the Trustee
shall have the right to decline to follow such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing
the time, method or place of conducting any such proceeding or exercising any
such trust or power, with respect to Securities of a series all or part of
which is represented by a Global Security, a record date shall be established
for determining Holders of Outstanding Securities of such series entitled to
join in such notice, which record date shall be at the close of business on the
day the 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, however, that, unless the Holders of a majority in principal amount
of the Outstanding Securities of such
<PAGE> 64
57
series shall have joined in such notice prior to the day which is 90 days after
such record date, such notice shall automatically and without further action by
any Holder be cancelled 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 notice identical to a notice which has been
cancelled 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
5.12.
SECTION 5.13. Waiver of Past Defaults. The Holders of not
less than a majority in aggregate principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder and its consequences with respect
to such series except a default:
(1) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on any Security of such
series; or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment
<PAGE> 65
58
of the principal of (or premium, if any) or interest (including any Additional
Interest) on any Security on or after the respective Stated Maturities
expressed in such Security.
SECTION 5.15. Waiver of Usury, Stay or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
SECTION 6.01. Certain Duties and Responsibilities. (a)
Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
<PAGE> 66
59
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that:
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) the 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 Holders pursuant to Section 5.12 relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities
of such series.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be grounds for believing that repayment of
such funds or indemnity satisfactory to its against such risk or liability is
not assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.02. Notice of Defaults. Within 90 days after
actual knowledge by a Responsible Officer of the Trustee of the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit by mail to all Holders of Securities of such series, as their
names and addresses appear in the Securities Register, notice of such default
hereunder known to a Responsible Officer of the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on any Security of such series, the Trustee
shall be fully protected in withholding such notice if and so long as the board
of directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines
<PAGE> 67
60
that the withholding of such notice is in the interests of the Holders of
Securities of such series; and provided, further, however, that, in the case of
any default of the character specified in Section 5.01(3), no such notice to
Holders of Securities of such series shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee. Subject to the
provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Security or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed)
shall be entitled to receive and may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of 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;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs,
<PAGE> 68
61
expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the 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, direction,
consent, order, bond, indenture, Security or other paper or document,
but the Trustee in its discretion may make such inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Indenture;
(i) the Trustee shall not be charged with knowledge of any
Event of Default unless either (1) a Responsible Officer of the
Trustee shall have actual knowledge or (2) the Trustee shall have
received notice thereof in accordance with Section 1.05(1) hereof from
the Company or a Holder; and
(j) no permissive power or authority available to the Trustee
shall be construed as a duty.
SECTION 6.04. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or any offering or disclosure materials prepared
in connection therewith. The Trustee shall not be accountable for the use or
application by the Company of the Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities. The Trustee, any Paying
Agent, Securities Registrar or any other agent of
<PAGE> 69
62
the Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise
deal with the Company with the same rights it would have if it were not
Trustee, Paying Agent, Securities Registrar or such other agent.
SECTION 6.06. Money Held in Trust. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. Compensation and Reimbursement. The Company,
as borrower on the Securities, agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation a trustee of an express trust);
(2) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee, its officers, agents, directors
and employees for, and to hold them harmless against, any loss,
liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The obligations of the Company under this Section 6.07 shall
survive the termination of this Indenture or the earlier resignation or removal
of the Trustee.
<PAGE> 70
63
To secure the Company's payment obligations in this Section,
the Company and the Holders agree that the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee. Such
lien shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.01(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Code of 1978, as amended, or any successor
statute.
SECTION 6.08. Disqualification; Conflicting Interests. The
Trustee for the Securities of any series issued hereunder shall be subject to
the provisions of Section 310(b) of the Trust Indenture Act. Nothing herein
shall prevent the Trustee from filing with the Commission the application
referred to in the second-to-last paragraph of Section 301(b) of the Trust
Indenture Act.
SECTION 6.09. Corporate Trustee Required,
Eligibility. There shall at all times be a Trustee hereunder which
shall be:
(a) a corporation organized and doing business under the laws
of the United States of America or of any state, territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
state, territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to the supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000,
subject to supervision of examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section,
<PAGE> 71
64
the combined capital and surplus of such corporation 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 Trustee 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.
Neither the Company nor any Person directly or indirectly controlling,
controlled by or under common control with the Company shall serve as Trustee
for the Securities of any series issued hereunder.
SECTION 6.10. Resignation and Removal;
Appointment of Successor. (a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or
<PAGE> 72
65
control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, then, in any such
case, (i) the Company, acting pursuant to the authority of a Board
Resolution, may remove the Trustee, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a Successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee with respect to
the Securities of that or those series. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, subject to Section 5.14,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series as their names an
addresses appear in the Securities Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
SECTION 6.11. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a
<PAGE> 73
66
successor Trustee with respect to all Securities, every such successor Trustee
so appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an 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 all the rights, powers trusts and duties of the retiring Trustee;
but, on the request of the Company 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 shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of the successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an instrument or an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
Successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such instrument or supplemental indenture
shall constitute such Trustee co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee and upon
the execution and delivery of such instrument or supplemental indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such Successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts, and duties of the retiring Trustee with respect to the Securities of
that or
<PAGE> 74
67
those series to which the appointment of such Successor Trustee relates; but,
on request of the Company or any Successor Trustee, such retiring Trustee shall
duly assign, transfer and deliver to such Successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such Successor Trustee
relates.
(c) Upon request of any such Successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such Successor Trustee all rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No Successor Trustee shall accept its appointment unless
at the time of such acceptance such Successor Trustee shall be qualified and
eligible under this Article. In the event that the Trust Indenture Act applies
to this Indenture at the time that any Successor Trustee is appointed, such
Successor Trustee shall qualify under such Act.
SECTION 6.12. Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article (including qualification under the Trustee Indenture Act, if
applicable), without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated, and in case
any Securities shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any predecessor Trustee
or in the name of such Successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Securities or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13. Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions
<PAGE> 75
68
of the Trust Indenture Act regarding the collection of claims against the
Company (or any such other obligor).
SECTION 6.14. Appointment of Authenticating Agent. The
Trustee may appoint an authenticating agent or agents (each, an "Authenticating
Agent") with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Where reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, or of any state,
Territory or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section the combined capital
and surplus of such Authenticating Agent 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 an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent 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
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
<PAGE> 76
69
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provision of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of each series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alterative certificate of authentication in the following form:
This is one of the Securities referred to in the within
mentioned Indenture.
-----------------------------------
Agent Trustee
by
--------------------------------
As Authenticating Agent
by
--------------------------------
Authorized Signatory
SECTION 6.15. Trustee's Rights and Obligations After
Qualification of Indenture. Following the qualification of this Indenture
under the Trust Indenture
<PAGE> 77
70
Act, the Trustee shall have and be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Trustee is under no obligation
to exercise any of the powers vested in it by this Indenture at the request of
any holder of the Securities, unless offered indemnity to its satisfaction by
such holder against the costs, expenses and liabilities which might be incurred
thereby. The Trustee will not be required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties
if the Trustee reasonably believes that repayment or adequate indemnity is not
reasonably assured to it. Notwithstanding the foregoing, nothing in this
Section 6.15 shall be deemed to abrogate any of the rights, indemnities or
protections otherwise provided to the Trustee under this Indenture.
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
SECTION 7.01. Company to Furnish Trustee Names and Addresses
of Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after [September] 15
and [March] 15, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such
[September] 1 and [March] 1, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, excluding from any such list
names and addresses received by the Trustee in its capacity as
Securities Registrar.
SECTION 7.02. Preservation of Information, Communications to
Holders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Securities Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
<PAGE> 78
71
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided in
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act, at the
times and in the manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted no later than the last calendar
day in February of each calendar year dated as of December 31 of the prior
year, commencing with the last calendar day in February of the year following
the Original Issue Date.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each securities exchange
upon which the Securities are listed and also with the Commission. The Company
will notify the Trustee whenever the Securities are listed on any securities
exchange.
SECTION 7.04. Reports by Company. The Company shall file
with the Trustee and with the Commission, and transmit to Holders, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided in the Trust Indenture Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
shall be filed with the Trustee within 15 days after the same is required to be
filed with the Commission. Notwithstanding that the Company may not be required
to remain subject to the reporting requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Company shall continue to file with the
Commission and provide the Trustee with the annual reports and the information,
documents and other reports which are specified in
<PAGE> 79
72
Sections 13 and 15(d) of the Securities Exchange Act of 1934. The Company also
shall comply with the other provisions of Section 314(a) of the Trust Indenture
Act.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.01. Company May Consolidate, etc., Only on Certain
Terms. The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge with
or into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge with
or into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership, limited liability company or
trust organized and existing under the laws of the United States of
America or any State or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest
(including any Additional Interest) on all the Securities and the
performance of every covenant and every obligation of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time,
or both, would become an Event of Default, shall have occurred and be
continuing;
(3) in the case of the Securities of a series issued to a
BancorpSouth Capital Trust, such consolidation, merger, conveyance,
transfer or lease is permitted under the related Trust Agreement and
BancorpSouth Guarantee and does not give rise to any breach or
violation of the related Trust Agreement or BancorpSouth Guarantee;
and
<PAGE> 80
73
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with; and the Trustee, subject to Section 6.01, may
rely upon such Officers' Certificate and Opinion of Counsel as
conclusive evidence that such transaction complies with this Section
8.01.
SECTION 8.02. Successor Corporation Substituted. Upon any
consolidation or merger by the Company with or into any other Person, or any
conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.01, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein; and in the event of any such conveyance, transfer
or lease the Company shall be discharged from all obligations and covenants
under the Indenture and the Securities and may be dissolved and liquidated.
Such successor Person may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication
pursuant to such provisions and any Securities which such successor Person
thereafter shall cause to be signed and delivered to the Trustee on its behalf
for the purpose pursuant to such provisions. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form
<PAGE> 81
74
may be made in the Securities thereafter to be issued as may be appropriate.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Supplemental Indentures without Consent of
Holders. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory, to the
Trustee, for any of the following:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained;
(2) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company;
(3) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 or 3.01;
(4) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Company;
(5) to add any additional Events of Default;
(6) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision;
(7) to cure any ambiguity, to 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 Indenture; provided that such action
pursuant to this clause (7) shall not
<PAGE> 82
75
materially adversely affect the interest of the Holders of Securities
of any series or, in the case of the Securities of a series issued to
a BancorpSouth Capital Trust and for so long as any of the
corresponding series of Capital Securities shall remain outstanding,
the holders of such Capital Securities;
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 6.11(b); or
(9) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act.
SECTION 9.02. Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) except to the extent permitted by Section 3.12 or as
otherwise specified as contemplated by Section 3.01 with respect to
the extension of the interest payment period of the Securities of any
series, change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, any
Security, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or reduce the amount of principal of a Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 5.02, or change the place of
payment where, or the coin or currency in which, any Security or
interest thereon is payable, or impair the
<PAGE> 83
76
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the date fixed for redemption thereof);
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture;
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.05, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Security affected
thereby; or
(4) modify the provisions in Article XIII of this Indenture
with respect to the subordination of Outstanding Securities of any
series in a manner adverse to the Holders thereof;
provided that, in the case of the Securities of a series issued to a
BancorpSouth Capital Trust, so long as any of the corresponding series of
Capital Securities remains outstanding, no such amendment shall be made that
adversely affects the holders of such Capital Securities, and no termination of
this Indenture shall occur, and no waiver of any Event of Default or compliance
with any covenant under this Indenture shall be effective, without the prior
consent of the holders of at least a majority of the aggregate Liquidation
Amount of such Capital Securities then outstanding unless and until the
principal (and premium, if any) of the Securities of such series and all
accrued and, subject to Section 3.08, unpaid interest (including any Additional
Interest) thereon have been paid in full; and provided further, however, that
in the case of the Securities of a series issued to a BancorpSouth Capital
Trust, so long as any of the corresponding series of Capital Securities remain
outstanding, no amendment shall be made to Section 5.08 of this Indenture
without the prior consent of the holders of each Capital Security then
outstanding unless and until the principal (and premium, if any) of the
Securities of such series and all accrued and (subject to Section 3.08) unpaid
interest (including any Additional Interest) thereon have been paid in full.
<PAGE> 84
77
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. Execution of Supplemental Indentures. In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in conclusively relying
upon, an Officer's Certificate and an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture, and that all conditions precedent have been complied with. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise, or which may subject it to liability or be
contrary to applicable law.
SECTION 9.04. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act. Every
supplemental indenture executed shall conform to the requirements of the Trust
Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Company, to any such supplemental indenture may be prepared
<PAGE> 85
78
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
Covenants
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of securities
that it will duly and punctually pay the principal of (and premium, if any) and
interest on the Securities of that series in accordance with the terms of such
Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency. The Company
will maintain in each Place of Payment for any series, an office or agency
where Securities of that series may be presented or surrendered for payment and
an office or agency where Securities may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company initially appoints
the Trustee, acting through its Corporate Trust Office, as its agent for said
purposes. The Company will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Company
shall fail to maintain such office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in each Place of Payment for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such office or agency.
SECTION 10.03. Money for Security Payments to be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and
<PAGE> 86
79
premium, if any) or interest on any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to 10:00 a.m. New York City time on each due date of the principal
of or interest on any Securities, deposit with a Paying Agent a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal and premium (if any) or interest, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its failure so to
act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the Securities) in the making of
any payment of principal (and premium, if any) or interest;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(4) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent;
<PAGE> 87
80
and, upon such payment by the Company or any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on any Security and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request to
the Company, or (if then held by the Company) shall (unless otherwise required
by mandatory provision of applicable escheat or abandoned or unclaimed property
law) be discharged from such trust; and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of
general circulation in the Borough of Manhattan, the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.04. Statement as to Compliance. The Company shall
deliver to the Trustee, within 120 days after the end of such calendar year of
the Company commencing after the date hereof, an Officers' Certificate executed
by authorized officers at least one of whom shall be the principal executive,
financial or accounting officer of the Company covering the preceding calendar
year, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance, observance or fulfillment of or
compliance with any of the terms, provisions, covenants and conditions of this
Indenture, and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge. For the
purpose of this Section 10.04, compliance shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
SECTION 10.05. Waiver of Certain Covenants. The Company may
omit in any particular instance to comply with any covenant or condition
specified as contemplated by Section 3.01 with respect to the Securities of any
series,
<PAGE> 88
81
if before or after the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.06. Payment of the Trust's Costs and Expenses.
Since the BancorpSouth Capital Trusts are being formed solely to facilitate the
investment in the Securities, the Company, as borrower on the Securities,
hereby covenants to pay all debts and obligations (other than with respect to
the payment of principal, interest and premium, if any, on the Trust
Securities) and all costs and expenses of such Trusts (including, but not
limited to, all costs and expenses relating to the organization of such Trusts,
the fees and expenses of the Trustees and all costs and expenses relating to
the operation of such Trusts) and to pay any and all taxes, duties, assessments
or other governmental charges of whatever nature (other than United States
withholding taxes) imposed on such Trusts by the United States, or any other
taxing authority (such payments of amounts in connection with taxes being
herein referred to as "Additional Sums"), so that the net amounts received and
retained by such Trusts and their respective Property Trustees after paying
such expenses or Additional Sums will be equal to the amounts such Trusts and
Property Trustees would have received had no such costs, expenses or taxes,
duties, assessments or other governmental charges been incurred by or imposed
on such Trusts. The foregoing obligations of the Company are for the benefit
of, and shall be enforceable by, any person to whom such debts, obligations,
costs, expenses and taxes are owed (a "Creditor") whether or not such Creditor
has received notice thereof. Any such Creditor may enforce such obligations of
the Company hereunder directly against the Company, and the Company hereby
irrevocably waives any right or remedy to require that any such Creditor take
any action against any Trust or any other person before proceeding against the
Company. The Company also agrees hereby to execute such additional agreements
as may be necessary or desirable to give full effect to the foregoing.
SECTION 10.07. Additional Covenants. The Company covenants
and agrees with each Holder of Securities of a series issued to a BancorpSouth
Capital Trust that it will not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock, or (ii) make any
payment of principal, interest or premium, if any, on or
<PAGE> 89
82
repay, repurchase or redeem any debt securities of the Company (including Other
Debentures) that rank pari passu with or junior in interest to the Securities
of such series or (iii) make any guarantee payments with respect to any
guarantee by the Company of debt securities of any subsidiary of the Company
(including Other Guarantees) if such guarantee ranks pari passu with or junior
in interest to the Securities (other than (a) dividends or distributions in
Common Stock of the Company, (b) any declaration of a dividend in connection
with the implementation of a shareholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (c) payments under the BancorpSouth Guarantee,
(d) purchases or acquisitions of shares of the Company's Common Stock in
connection with the satisfaction by the Company of its obligations under any
employee benefit plan or other contractual obligation of the Company (other
than a contractual obligation ranking pari passu with or junior in interest to
these Securities), (e) as a result of a reclassification of the Company's
capital stock or the exchange or conversion of one class or series of the
Company's capital stock for another class or series of the Company's capital
stock, or (f) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged), if at such time (i) there
shall have occurred an Event of Default, (ii) the Company shall be in default
with respect to its payment of any obligations under the related BancorpSouth
Guarantee or (iii) the Company shall have given notice of its election to begin
an Extension Period as provided herein and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be
continuing.
The Company also covenants with each Holder of Securities of a
series issued to a BancorpSouth Capital Trust (i) to maintain directly 100%
ownership of the Common Securities of such BancorpSouth Capital Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (ii) not to
voluntarily terminate, windup or liquidate such BancorpSouth Capital Trust,
except in connection with (a) a distribution of the Securities of such series
to the holders of Capital Securities in liquidation of such BancorpSouth
Capital Trust, (b) redemption of all of the Trust Securities of a BancorpSouth
Capital Trust or (c) certain mergers, consolidations or amalgamations
<PAGE> 90
83
permitted by the related Trust Agreement and (iii) to use its reasonable
efforts, consistent with the terms and provisions of such Trust Agreement, to
cause such BancorpSouth Capital Trust to remain classified as a grantor trust
and not an association taxable as a corporation for United States Federal
income tax purposes.
SECTION 10.08. Information Returns. On or before December 15
of each year during which any Securities are outstanding, the Company shall
furnish to each Paying Agent such information as may be reasonably requested by
each Paying Agent in order that such Paying Agent may prepare the information
which it is required to report for such year on Internal Revenue Service Forms
1096 and 1099. Such information shall include the amount of original issue
discount, if any, includible in income for each $1,000 of principal amount at
Stated Maturity of outstanding Securities during such year.
ARTICLE XI
Redemption or Prepayment of Securities
SECTION 11.01. Applicability of This Article. Redemption of
Securities (whether by operation of a sinking fund or otherwise) as permitted
or required by any form of Security issued pursuant to this Indenture shall be
made in accordance with such form of Security and this Article; provided,
however, that if any provision of any such form of Security shall conflict with
any provision of this Article, the provision of such form of Security shall
govern. Except as otherwise set forth in the form of Security for such series,
each Security shall be subject to partial redemption only in the amount of
$1,000 or, in the case of the Securities of a series issued to a BancorpSouth
Capital Trust, $1,000, or integral multiples thereof.
SECTION 11.02. Election To Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of any Securities of any particular series and having the same
terms, the Company shall, not less than 45 nor more than 60 days prior to the
date fixed for redemption (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee and, in the case of Securities held by or on
behalf of a BancorpSouth Capital Trust, the Property Trustee of such date and
of the principal amount of Securities of that series to be redeemed. In the
case of any redemption of Securities prior to the expiration of any
<PAGE> 91
84
restriction on such redemption provided in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate and an Opinion
of Counsel evidencing compliance with such restriction. Any such notice given
to the Trustee hereunder shall include the information required by Section
11.04 hereof.
SECTION 11.03. Selection of Securities to be Redeemed. If
less than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security all as designated to the Trustee
by the Company), the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of a portion of the principal amount
of any Security shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Security. If less than all
the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for partial redemption and the principal amount thereof
to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed. If the Company shall so direct, Securities registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Securities selected for redemption.
SECTION 11.04. Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not later than the
thirtieth day, and not earlier than the sixtieth day, prior to the date fixed
for redemption, to each Holder of Securities to be redeemed, at the address of
such Holder as it appears in the Securities Register.
<PAGE> 92
85
With respect to Securities of each series to be redeemed, each
notice of redemption shall state:
(a) the Redemption Date fixed for Securities of such series;
(b) the redemption price at which Securities of such series
are to be redeemed;
(c) if less than all Outstanding Securities of such particular
series and having the same terms are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Securities to be redeemed;
(d) that on the date fixed for redemption, the redemption
price at which such Securities are to be redeemed will become due and
payable upon each such Security or portion thereof, and that interest
thereon, if any, shall cease to accrue on and after said date;
(e) the place or places where such Securities are to be
surrendered for payment of the redemption price at which such
Securities are to be redeemed;
(f) that the redemption is for a sinking fund, if such is the
case; and
(g) such other provisions as may be required in respect of the
terms of a particular series of Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or
any defect in the notice to the Holder of any Security designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security.
SECTION 11.05. Deposit of Redemption Price. Prior to 10:00
a.m. New York City time on the redemption date specified in the notice of
redemption given as provided in Section 11.04, the Company will deposit with
the Trustee or with one or more Paying Agents an amount of money sufficient to
redeem on the Redemption Date all the
<PAGE> 93
86
Securities so called for redemption at the applicable redemption price.
SECTION 11.06. Payment of Securities Called for Redemption.
If any notice of redemption has been given as provided in Section 11.04, the
Securities or portion of Securities with respect to which such notice has been
given shall become due and payable on the date and at the place or places
stated in such notice at the applicable redemption price. On presentation and
surrender of such Securities at a place of payment in said notice specified,
the said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of
that same series, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Security so presented and having the
same Original Issue Date, Stated Maturity and terms. If the Global Security is
so surrendered, such new Security will (subject to Section 3.06) also be a new
Global Security.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal of and premium, if any, on
such Security shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Security.
SECTION 11.07. Company's Right of Redemption. If specified
in accordance with Section 3.01 with respect to the Securities of a particular
series and in addition to any additional redemption rights that may be so
specified, on or after the tenth anniversary of the Original Issue Date, the
Company may at any time, at its option, subject to the terms and conditions of
this Article XI and subject to the Company having received prior approval of
the Regulatory Authorities if then required under applicable capital guidelines
of the Regulatory Authorities, redeem this Security in whole or in part at any
time or from time to time prior to Maturity, subject to the terms of the
Securities of a particular series.
If a Tax Event, a Regulatory Capital Event or an Investment
Company Event (each a "Special Event") shall occur and be continuing, the
Company may, at its option and subject to receipt of prior approval of the
Regulatory Authorities if then required under applicable capital
<PAGE> 94
87
guidelines or policies of the Regulatory Authorities and subject to the
provisions of this Article XI of the Indenture, prepay the Securities prior to
the tenth anniversary of the Original Issue Date within 90 days after the
occurrence of such Special Event, in whole (but not in part), at a prepayment
price (the "Special Event Prepayment Price") equal to 100% of the principal
amount of such Securities.
ARTICLE XII
Intentionally omitted.
ARTICLE XIII
Sinking Funds
SECTION 13.01. Applicability of Article. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of any series if a sinking fund is specified in accordance with
Section 3.01 as being applicable to such Securities.
The minimum amount of any sinking fund payment provided for by
the terms of any Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any sinking fund payment in excess of such minimum
amount which is permitted to be made by the terms of such Securities of any
series is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities of any series, the base amount of
any sinking fund payment may be subject to reduction as provided in Section
13.02. Each sinking fund payment shall be applied to the redemption (or
purchase by tender or otherwise) of Securities of any series as provided for by
the terms of such Securities.
SECTION 13.02. Satisfaction of Sinking Fund Payments with
Securities. In lieu of making all or any part of a mandatory sinking fund
payment with respect to any Securities of a series in cash, the Company may at
its option, at any time no more than 16 months and no less than 45 days prior
to the date on which such sinking fund payment is due, deliver to the Trustee
Securities of such series (together with the unmatured Coupons, if any,
appertaining thereto) theretofore purchased or otherwise acquired by the
Company, except Securities of such series that have been redeemed through the
application of mandatory or optional
<PAGE> 95
88
sinking fund payments pursuant to the terms of the Securities of such series,
accompanied by a Company Order instructing the Trustee to credit such
obligations and stating that the Securities of such series were originally
issued by the Company by way of bona fide sale or other negotiation for value;
provided that the Securities to be so credited have not been previously so
credited. The Securities to be so credited shall be received and credited for
such purpose by the Trustee at the redemption price for such Securities, as
specified in the Securities so to be redeemed, for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be
reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any series of
securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash in the currency in which the
Securities of such series are payable (except as provided pursuant to Section
3.01) and the portion thereof, if any, which is to be satisfied by delivering
and crediting Securities pursuant to Section 13.02 and will also deliver to the
Trustee any Securities to be so delivered. Such Certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the
succeeding sinking fund payment date. In the case of the failure of the
Company to deliver such Certificate (or, as required by this Indenture, the
Securities and coupons, if any, specified in such Certificate) by the due date
therefor, the sinking fund payment due on the succeeding sinking fund payment
date for such series shall be paid entirely in cash and shall be sufficient to
redeem the principal amount of the Securities of such series subject to a
mandatory sinking fund payment without the right to deliver or credit
securities as provided in Section 13.02 and without the right to make the
optional sinking fund payment with respect to such series at such time.
Any sinking fund payment or payments (mandatory or optional)
made in cash plus any unused balance of any preceding sinking fund payments
made with respect to the Securities of any particular series shall be applied
by the Trustee (or by the Company if the Company is acting as its own Paying
Agent) on the sinking fund payment date on which such payment is made (or, if
such payment is made before a sinking fund payment date, on the sinking fund
payment date
<PAGE> 96
89
immediately following the date of such payment) to the redemption of Securities
of such series at the redemption price specified in such Securities with
respect to the sinking fund. Any sinking fund moneys not so applied or
allocated by the Trustee (or by the Company if the Company is acting as its own
Paying Agent, segregated and held in trust as provided in Section 10.03) for
such series and together with such payment (or such amount so segregated) shall
be applied in accordance with the provisions of this Section 13.03. Any and all
sinking fund moneys with respect to the Securities of any particular series
held by the Trustee (or if the Company is acting as its own Paying Agent,
segregated and held in trust as provided in Section 10.03) on the last sinking
fund payment date with respect to Securities of such series and not held for
the payment or redemption of particular Securities of such series shall be
applied by the Trustee (or by the Company if the Company is acting as its own
Paying Agent), together with other moneys, if necessary, to be deposited (or
segregated) sufficient for the purpose, to the payment of the principal of the
Securities of such series at Maturity. The Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 11.03 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
11.04. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Section 11.06. On or
before each sinking fund payment date, the Company shall pay to the Trustee
(or, if the Company is acting as its own Paying Agent, the Company shall
segregate and hold in trust as provided in Section 10.03) in cash a sum in the
currency in which Securities of such series are payable (except as provided
pursuant to Section 3.01) equal to the principal, premium, if any, and any
interest accrued to the redemption date for Securities or portions thereof to
be redeemed on such sinking fund payment date pursuant to this Section 13.03.
Neither the Trustee nor the Company shall redeem any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities of such series by operation of the sinking fund for
such series during the continuance of a default in payment of interest, if any,
on any Securities of such series or of any Event of Default (other than an
Event of Default occurring as a consequence of this paragraph) with respect to
the Securities of such series, except that if the notice of redemption shall
have been provided in accordance with the provisions hereof, the Trustee (or
the Company if the Company is then acting as its own Paying Agent) shall redeem
such Securities if cash
<PAGE> 97
90
sufficient for that purpose shall be deposited with the Trustee (or segregated
by the Company) for that purpose in accordance with the terms of this Article
XIII. Except as aforesaid, any moneys in the sinking fund for such series at
the time when any such default or Event of Default shall occur and any moneys
thereafter paid into such sinking fund shall, during the continuance of such
default or Event of Default, be held as security for the payment of the
Securities and coupons, if any, of such series; provided, however, that in case
such default or Event of Default shall have been cured or waived herein, such
moneys shall thereafter be applied on the next sinking fund payment date for
the Securities of such series on which such moneys may be applied pursuant to
the provisions of this Section 13.03.
ARTICLE XIV
Subordination of Securities
SECTION 14.01. Securities Subordinate to Senior Debt. The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on each and
all of the Securities are hereby expressly made subordinate and junior in right
of payment to the prior payment in full of all amounts then due and payable in
respect of all Senior Debt.
SECTION 14.02. Payment Over of Proceeds Upon Dissolution,
etc. In the event of (a) any receivership, xinsolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, its creditors or its property, (b)
any proceeding for the liquidation, dissolution, or other winding up of the
Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (c) any assignment by the Company for the benefit of
creditors or (d) any other marshaling of the assets of the Company (each such
event, if any, herein sometimes referred to as a "Proceeding"), then the
holders of Senior Debt shall be entitled to receive payment in full of
principal of (and premium, if any) and interest, if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or securities
(including any
<PAGE> 98
91
payment or distribution which may be payable or deliverable by reason of the
payment of any other Debt of the Company (including any series of the
Securities) subordinated to the payment of the Securities, such payment or
distribution being hereinafter referred to as a "Junior Subordinated Payment"),
on account of principal of (or premium, if any) or interest (including any
Additional Interest) on the Securities or on account of the purchase or other
acquisition of Securities by the Company or any Subsidiary and to that end the
holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, including any Junior Subordinated Payment,
which may be payable or deliverable in respect of the Securities in any such
Proceeding; provided, however, that holders of Senior Debt shall not be
entitled to receive payment of any such amounts to the extent that such holders
would be required by the subordination provisions of such Senior Debt to pay
such amounts over to the obligees on trade accounts payable or other
liabilities arising in the ordinary course of business.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan or reorganization or readjustment which securities are subordinated
in right of payment to all then outstanding Senior Debt to substantially the
same
<PAGE> 99
92
extent as the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
SECTION 14.03. Prior Payment to Senior Debt Upon Acceleration
of Securities. In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of the Senior
Debt outstanding at the time such Securities so become due and payable shall
first be entitled to receive payment in full of all amounts due on or in
respect of such Senior Debt (including any amounts due upon acceleration), or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities will be entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or securities
(including any Junior Subordinated Payment) by the Company on account of the
principal of (or premium, if any) or interest (including any Additional
Interest) on the Securities or on account of the purchase or other acquisition
of Securities by the Company or any Subsidiary; provided, however, that nothing
in this Section shall prevent the satisfaction of any sinking fund payment in
accordance with this Indenture or as otherwise specified as contemplated by
Section 3.01 for the Securities of any series by delivering and crediting
pursuant to Section 13.02 or as otherwise specified as contemplated by Section
3.01 for the Securities of any series Securities which have been acquired (upon
redemption or otherwise) prior to such declaration of acceleration; provided
further, however, that holders of Senior Debt shall not be entitled to receive
payment of any such amounts to the extent that such holders would be required
by the subordination provisions of such Senior Debt to pay such amounts over to
the obligees on trade accounts payable or other liabilities arising in the
ordinary course of business.
<PAGE> 100
93
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be, such Holder, then and in such
event such payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 14.02 would be applicable.
SECTION 14.04. No Payment When Senior Debt in Default. (a)
In the event and during the continuation of any default by the Company in the
payment of principal of (or premium, if any) or interest, if any, on any Senior
Debt, or in the event that any event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment or such event of default, then no direct or indirect payment or
distribution of any kind or character, whether in cash, property or securities
(including any Junior Subordinated Payment), by set-off or otherwise, shall be
made or agreed to be made by the Company on account of principal of (or
premium, if any) or interest (including any Additional Interest), if any, on
the Securities or on account of any redemption, repayment, retirement, purchase
or other acquisition of any Securities by the Company or any Subsidiary;
provided, however, that nothing in this Section shall prevent the satisfaction
of any sinking fund payment in accordance with this Indenture or as otherwise
specified as contemplated by Section 3.01 for the Securities of any series by
delivering and crediting pursuant to Section 13.02 or as otherwise specified as
contemplated by Section 3.01 for the Securities of any series which have been
acquired (upon redemption or otherwise) prior to such default in payment or
event of default.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to a Responsible
Officer of the Trustee or, as the case may be,
<PAGE> 101
94
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 14.02 would be applicable.
SECTION 14.05. Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 14.02 or under the conditions
described in Sections 14.03 and 14.04, from making payments at any time of
principal of (and premium, if any) or interest (including any Additional
Interest) on the Securities, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of
(and premium, if any) or interest (including any Additional Interest) on the
Securities or the retention of such payment by the Holders, if, at the time of
such payment by the Company or application by the Trustee, as the case may be,
it did not have knowledge that such payment or application, as the case may be,
would have been prohibited by the provisions of this Article.
SECTION 14.06. Subrogation to Rights of Holders of Senior
Debt. Subject to the payment of all Senior Debt to the extent required under
Sections 14.02 and 14.03 of this Indenture, or the provision for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, the Holders of the Securities shall be subrogated to
the extent of the payments or distributions made to the holders of such Senior
Debt pursuant to the provisions of this Article (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to Senior Debt of the Company to substantially the same extent as
the Securities are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Securities shall be paid in full. For purposes of such
subrogation or assignment, no payments or distributions to the holders of the
Senior Debt of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article, and no payments over pursuant to the provisions of this Article to
<PAGE> 102
95
the holders of Senior Debt by Holders of the Securities or the Trustee, shall,
as among the Company, its creditors other than holders of Senior Debt, and the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt.
SECTION 14.07. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as between the Company and the Holders of the Securities, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
(including any Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 14.08. Trustee to Effectuate Subordination. Each
Holder of a Security by his or her acceptance thereof authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 14.09. No Waiver of Subordination Provisions. No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
<PAGE> 103
96
SECTION 14.10. Notice to Trustee. The Company shall give
prompt written notice to the Trustee of any fact known to the Company which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Debt or from any trustee, agent or representative therefor (whether or not the
facts contained in such notice are true); provided, however, that if the
Trustee shall not have received the notice provided for in this Section at
least two Business Days prior to the date upon which by the terms hereof any
monies may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including any
Additional Interest) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
SECTION 14.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
VI, and the Holders of the Securities shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 14.12. Trustee Not Fiduciary for Holders of Senior
Debt. The Trustee, in its capacity as trustee under this Indenture, shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not
be liable to any such holders if it shall in good faith mistakenly pay over or
distribute to Holders of Securities
<PAGE> 104
97
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
SECTION 14.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and nothing in this Indenture shall deprive the
Trustee of any of its rights as such holder.
SECTION 14.14. Article Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 14.15. Certain Conversions or Exchanges Deemed
Payment. For purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion or exchange of Securities shall not be deemed
to constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on Securities
or on account of the purchase or other acquisition of Securities, and (b) the
payment, issuance or delivery of cash, property or securities (other than
junior securities) upon conversion or exchange of a Security shall be deemed to
constitute payment on account of the principal of such Security. For the
purposes of this Section, the term "junior securities" means (i) shares of any
stock of any class of the Company and (ii) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article.
<PAGE> 105
This instrument may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first written above.
BANCORPSOUTH, INC.,
by
-----------------------------
Name:
Title:
<PAGE> 106
BANKERS TRUST COMPANY, as Trustee,
by
-----------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.3
CERTIFICATE OF TRUST
OF
BANCORPSOUTH CAPITAL TRUST I
THIS Certificate of Trust of BancorpSouth Capital Trust I (the
"Trust"), dated August 22, 1997, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. ss.3801, et seq.).
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 is Bankers Trust (Delaware); E. A. Delle
Donne Corporate Center, Montgomery Building, 1011 Centre Road, Wilmington,
Delaware 19805-1266.
3 Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
has executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWAREE), as trustee
By: /s/ M. Lisa Wilkins
---------------------------
Name: M. Lisa Wilkins
-------------------------
Title Assistant Secretary
-------------------------
/s/ Aubrey B. Patterson
------------------------------
AUBREY B. PATTERSON
/s/ L. Nash Allen, Jr.
------------------------------
L. NASH ALLEN, JR.
<PAGE> 1
EXHIBIT 4.4
DECLARATION OF TRUST
OF
BANCORPSOUTH CAPITAL TRUST I
THIS DECLARATION OF TRUST is made as of August 22, 1997 (this
"Declaration of Trust"), by and among BancorpSouth, Inc., a Mississippi
corporation, as Depositor (the "Depositor"), Bankers Trust (Delaware), a
Delaware banking corporation, as trustee (the "Delaware Trustee"), and Aubrey B.
Patterson, and L. Nash Allen, Jr., as trustees (the "Administrative Trustees";
and together with the Delaware Trustee, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby shall be known as "BancorpSouth Capital
Trust I" (the "Trust"), in which name the Trustees or the Depositor, to the
extent provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801, et seq,. (the "Business Trust Act"), and
that this document constitute the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate of
trust with the Delaware Secretary of State in such form as the Trustees may
approve.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust satisfactory to each such party and substantially
in the form to be included as an exhibit to the Registration Statement on Form
S-3 (the "1933 Act Registration Statement") referred to below, or in such other
form as the Trustees and the Depositor may approve, to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Capital Securities and Common Securities referred to therein. Prior to the
execution and delivery of such amended and restated Declaration of Trust, the
Trustees shall not have any duties or obligations hereunder or with respect of
the trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
<PAGE> 2
4. The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, and the Administrative Trustees, as
trustees of the Trust, acting singly or jointly, (i) to file with the Securities
and Exchange Commission (the "Commission) and to execute in the case of the 1933
Act Registration Statement and 1934 Act Registration Statement (as herein
defined), on behalf of the Trust, (a) the 1933 Act Registration Statement
including pre-effective or post-effective amendments to such Registration
Statement, relating to the registration under the Securities Act of 1933, as
amended (the " 1933 Act"), of the Capital Securities of the Trust, (b) any
preliminary prospectus or prospectus supplement thereto relating to the Capital
Securities required to be filed pursuant to Rule 424 under the 1933 Act, and (c)
a Registration Statement on Form 8-A or other appropriate form (the " 1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Capital Securities of
the Trust under Section 12(b) of the Securities Exchange Act of 1934, as
amended; (ii) to file with the New York Stock Exchange or other exchange, and
execute on behalf of the Trust a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be necessary
or desirable to cause the Capital Securities to be listed on the New York Stock
Exchange or such other exchange or quotation system; (iii) to file and execute
on behalf of the Trust such applications, reports, surety bonds, irrevocable
consents, appointments of attorney for service of process and other papers and
documents as shall be necessary or desirable to register the Capital Securities
under the securities or "Blue Sky" laws of such jurisdictions as the Depositor,
on behalf of the Trust, may deem necessary or desirable; and (iv) to execute,
deliver and perform on behalf of the Trust an underwriting agreement with the
Depositor and the underwriter or underwriters of the Capital Securities of the
Trust. In the event that any filing referred to in clauses (i)-(iii) above is
required by the rules and regulations of the Commission, the New York Stock
Exchange or other exchange or quotation system, or state securities or Blue Sky
laws to be executed on behalf of the Trust by a trustee, the Administrative
Trustees, in their capacities as trustees of the Trust, are hereby authorized
and directed to join in any such filing and to execute on behalf of the Trust
any and all of the foregoing, it being understood that the Administrative
Trustees, in their capacities as trustees of the Trust, shall not be required to
join in any such filing or execute on behalf of the Trust any such document
unless required by the rules and regulations of the Commission, the New York
Stock Exchange or other exchange, or state securities or Blue Sky laws. In
connection with all of the foregoing, the Trustees, solely in their capacities
as trustees of the Trust, and the Depositor hereby constitute and appoint Aubrey
B. Patterson as the Depositor's true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution for the Depositor or in the
Depositor's name, place and stead, in any and all capacities, to sign any and
all amendments (including all pre-effective and post-effective amendments) to
the 1933 Act Registration Statement and the 1934 Act Registration Statement and
to file the same, with all exhibits thereto, and any other documents in
connection therewith, with the Commission, granting unto said attorney-in-fact
and agent full power and
<PAGE> 3
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as the
Depositor might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his respective substitute or substitutes,
shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6 The number of Trustees of the Trust initially shall be three and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of Trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (with regard to conflict of
laws principles).
[SIGNATURE PAGE FOLLOWS]
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be duly executed as of the day and year first above written.
BANCORPSOUTH, INC., as Depositor
By: /s/ Aubrey B. Patterson
-----------------------------------
Name: Aubrey B. Patterson
---------------------------------
Title: Chairman and Chief Executive
Officer
---------------------------------
BANKERS TRUST (DELAWARE), as Delaware
Trustee of the Trust
By: /s/ M. Lisa Wilkins
-----------------------------------
Name: M. Lisa Wilkins
---------------------------------
Title: Assistant Secretary
---------------------------------
/s/ Aubrey B. Patterson
---------------------------------------
AUBREY B. PATTERSON, as trustee of the
Trust
/s/ L. Nash Allen, Jr.
--------------------------------------
L. NASH ALLEN, JR., as trustee of the
Trust
<PAGE> 1
EXHIBIT 4.5
===============================================================================
AMENDED AND RESTATED
DECLARATION OF TRUST
among
BANCORPSOUTH, INC., as Depositor,
BANKERS TRUST COMPANY,
as Property Trustee,
BANKERS TRUST (DELAWARE),
as Delaware Trustee,
and
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
Dated as of September [ ], 1997
BANCORPSOUTH CAPITAL TRUST I
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Defined Terms
-------------
SECTION 1.01. Definitions....................................... 2
ARTICLE II
Continuation of the Trust
-------------------------
SECTION 2.01. Name.............................................. 13
SECTION 2.02. Office of the Delaware Trustee;
Principal Place of Business..................... 13
SECTION 2.03. Initial Contribution of Trust Property;
Organizational Expenses......................... 14
SECTION 2.04. Issuance of the Capital Securities................ 14
SECTION 2.05. Issuance of the Common Securities;
Subscription and Purchase of Junior
Subordinated Debt Securities.................... 14
SECTION 2.06. Declaration of Trust.............................. 15
SECTION 2.07. Authorization to Enter into Certain
Transactions.................................... 15
SECTION 2.08. Assets of Trust................................... 20
SECTION 2.09. Title to Trust Property........................... 20
ARTICLE III
Payment Account
SECTION 3.01. Payment Account................................... 21
ARTICLE IV
Distributions; Redemption
SECTION 4.01. Distributions..................................... 21
SECTION 4.02. Redemption........................................ 22
SECTION 4.03. Subordination of Common
Securities...................................... 25
SECTION 4.04. Payment Procedures................................ 26
SECTION 4.05. Tax Returns and Reports........................... 26
SECTION 4.06. Payment of Taxes, Duties, etc. of the
Trust........................................... 27
</TABLE>
<PAGE> 3
Contents, p.2
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 4.07. Payments under Indenture.......................... 27
ARTICLE V
Trust Securities Certificates
-----------------------------
SECTION 5.01. Initial Ownership................................. 27
SECTION 5.02. Trust Securities Certificates..................... 27
SECTION 5.03. Execution and Delivery of Trust
Securities Certificates......................... 28
SECTION 5.04. Global Capital Security........................... 28
SECTION 5.05. Registration of Transfer and Exchange
Generally; Certain Transfers and
Exchanges; Capital Securities
Certificates.................................... 30
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen
Trust Securities Certificates................... 32
SECTION 5.07. Persons Deemed Securityholders.................... 32
SECTION 5.08. Access to List of Securityholders'
Names and Addresses............................. 33
SECTION 5.09. Maintenance of Office or Agency;
Transfer Agent.................................. 33
SECTION 5.10. Appointment of Paying Agent....................... 33
SECTION 5.11. Ownership of Common Securities by
Depositor....................................... 34
SECTION 5.12. Notices to Clearing Agency........................ 34
SECTION 5.13. Rights of Securityholders......................... 35
ARTICLE VI
Acts of Securityholders; Meetings; Voting
-----------------------------------------
SECTION 6.01. Limitations on Capital Securityholders'
Voting Rights................................... 38
SECTION 6.02. Notice of Meetings................................ 39
SECTION 6.03. Meetings of Securityholders....................... 39
SECTION 6.04. Voting Rights..................................... 40
SECTION 6.05. Proxies, etc...................................... 40
SECTION 6.06. Securityholder Action by Written
Consent......................................... 40
SECTION 6.07. Record Date for Voting and Other
Purposes........................................ 40
SECTION 6.08. Acts of Securityholders........................... 41
SECTION 6.09. Inspection of Records............................. 42
</TABLE>
<PAGE> 4
Contents, p. 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE VII
Representations and Warranties
------------------------------
SECTION 7.01. Representations and Warranties of the
Property Trustee and the Delaware
Trustee......................................... 42
SECTION 7.02. Representations and Warranties of
Depositor....................................... 44
ARTICLE VIII
The Trustees
------------
SECTION 8.01. Certain Duties and Responsibilities............... 44
SECTION 8.02. Events of Default Notices; Deferral of
Interest Payment Notices........................ 46
SECTION 8.03. Certain Rights of Property Trustee................ 47
SECTION 8.04. Not Responsible for Recitals...................... 50
SECTION 8.05. May Hold Securities............................... 50
SECTION 8.06. Compensation, Indemnity, Fees..................... 51
SECTION 8.07. Corporate Property Trustee Required;
Eligibility of Trustees......................... 52
SECTION 8.08. Conflicting Interests............................. 53
SECTION 8.09. Co-Trustees and Separate Trustee.................. 53
SECTION 8.10. Resignation and Removal; Appointment of
Successor....................................... 55
SECTION 8.11. Acceptance of Appointment by
Successor....................................... 57
SECTION 8.12. Merger, Conversion, Consolidation or
Succession to Business.......................... 58
SECTION 8.13. Preferential Collection of Claims
Against Depositor or Trust...................... 59
SECTION 8.14. Reports by Property Trustee....................... 60
SECTION 8.15. Reports to the Property Trustee................... 60
SECTION 8.16. Evidence of Compliance with Conditions
Precedent....................................... 60
SECTION 8.17. Number of Trustees................................ 61
SECTION 8.18. Delegation of Power............................... 61
</TABLE>
<PAGE> 5
Contents, p. 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE IX
Dissolution, Liquidation and Merger
-----------------------------------
SECTION 9.01. Dissolution Upon Expiration Date;
Termination Upon Special Event.................. 62
SECTION 9.02. Early Termination................................. 62
SECTION 9.03. Termination....................................... 62
SECTION 9.04. Liquidation....................................... 63
SECTION 9.05. Mergers, Consolidations, Amalgamations
or Replacements of the Trust.................... 65
ARTICLE X
Miscellaneous Provisions
------------------------
SECTION 10.01. Limitation of Rights of
Securityholders................................. 66
SECTION 10.02. Liability of the Depositor........................ 67
SECTION 10.03. Amendment......................................... 67
SECTION 10.04. Separability...................................... 69
SECTION 10.05. Governing Law..................................... 69
SECTION 10.06. Payments Due on Non-Business Day.................. 69
SECTION 10.07. Successors........................................ 69
SECTION 10.08. Headings.......................................... 69
SECTION 10.09. Reports, Notices and Demands...................... 69
SECTION 10.10. Agreement Not to Petition......................... 70
SECTION 10.11. Trust Indenture Act; Conflict with
Trust Indenture Act............................. 71
SECTION 10.12. Acceptance of Terms of Declaration of
Trust, Guarantee and
Indenture....................................... 72
</TABLE>
<PAGE> 6
AMENDED AND RESTATED DECLARATION OF TRUST,
dated as of September [ ], 1997, among (i)
BANCORPSOUTH, INC., a Mississippi corporation
(including any successors or assigns, the
"Depositor"), (ii) BANKERS TRUST COMPANY, 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) BANKERS
TRUST (Delaware), a Delaware banking corporation, as
Delaware trustee (the "Delaware Trustee"), (iv)
Aubrey B. Patterson, an individual, and L. Nash
Allen, 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 Delaware Trustee and the
Administrative Trustees have heretofore 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 "Original
Declaration of Trust"), and by the execution and filing by the Delaware 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
August 22, 1997 (the "Certificate of Trust"); and attached as Exhibit A; and
WHEREAS the Depositor, the Delaware Trustee and the
Administrative Trustees desire to amend and restate the Original Declaration of
Trust 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 [ ]% Capital Securities (the
"Capital Securities") by the Trust pursuant to the Underwriting Agreement,
<PAGE> 7
2
(iii) the acquisition by the Trust from the Depositor of all of
the right, title and interest in the Junior Subordinated Debt Securities and
(iv) the appointment of the Property Trustee;
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 Declaration of Trust in its
entirety and agrees as follows:
ARTICLE I
Defined Terms
SECTION 1.01. Definitions. For all purposes of
this Declaration of Trust, 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 Declaration of Trust;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Declaration of Trust as a whole
and not to any particular Article, Section or other subdivision; and
(e) all references to the date the Capital Securities were
originally issued shall refer to the date the Initial Capital
Securities were originally issued.
"Act" has the meaning specified in Section 6.08.
"Administrative Trustee" means each of Aubrey B.
Patterson and L. Nash Allen, Jr., solely in such Person's
<PAGE> 8
3
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 Capital Security or beneficial interest
therein, the rules and procedures of the depositary for such Capital 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 Declaration of Trust.
"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
(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
<PAGE> 9
4
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 Securities" means each of the initial Capital
Securities to be issued on the date hereof each representing an undivided
beneficial interest in the assets of the Trust, having a Liquidation Amount of
$1,000 per Capital Security and having the rights provided therefor in this
Declaration of Trust, including the right to receive Distributions and a
Liquidation Distribution as provided herein.
"Capital Securities Certificate" means a certificate
evidencing ownership of Capital Securities, substantially in the form attached
as Exhibit B.
"Capital Securityholder" means a Person in whose name a
Capital Security or Capital 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.
"Certificate of Trust" has the meaning specified in the
preamble to this Declaration of Trust.
<PAGE> 10
5
"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, each
representing an undivided beneficial interest in the assets of the Trust,
having a Liquidation Amount of $1,000 and having the rights provided therefor
in this Declaration of Trust, 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 Declaration of Trust is located at Four Albany Street, New York, New York
10006; Attention of Corporate Trust and Agency Group--Corporate Market
Services.
"Debenture Event of Default" means an "Event of Default" as
defined in the Indenture.
"Debenture Trustee" means Bankers Trust Company, a New York
banking corporation and any successor trustee appointed and accepted pursuant
to the Indenture.
"Declaration of Trust" means this Amended and Restated
Declaration of Trust, as the same may be modified, amended or supplemented in
accordance with the applicable
<PAGE> 11
6
provisions hereof, including all exhibits hereto, including, for all purposes
of this Amended and Restated Declaration of Trust, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Amended and
Restated Declaration of Trust and any modification, amendment or supplement of
either, respectively.
"Definitive Capital Securities Certificate" means Capital
Securities Certificates issued in certificated, fully registered form.
"Delaware Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss.ss. 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 Declaration of Trust 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
Declaration of Trust.
"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
<PAGE> 12
7
(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, or any covenant or warranty of the Trustees in this
Declaration of Trust (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 Capital 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 Capital Securities" means a beneficial interest in
the Capital Securities, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 5.04.
"Global Capital Securities Certificate" means a certificate
evidencing ownership of Global Capital Securities, substantially in the form
attached as Exhibit B.
"Guarantee" means the Guarantee Agreement executed and
delivered by the Depositor and Bankers Trust Company, as trustee,
contemporaneously with the execution and delivery of this Declaration of Trust,
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
<PAGE> 13
8
meaning of the Delaware Business Trust Act; provided, however, that in
determining whether the Holders of the requisite amount of Capital Securities
have voted on any matter provided for in this Declaration of Trust, then for
the purpose of any such determination, so long as Definitive Capital 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 September [ ],
1997, 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.
"Junior Subordinated Debt Securities" means the aggregate
principal amount of the Depositor's [ ]% Junior Subordinated Debt Securities
due [September , 2027], 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
<PAGE> 14
9
whom such Junior Subordinated Debt Securities are distributed.
"Liquidation Amount" means the stated amount of
$1,000 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
Declaration of Trust 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;
(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, the Property Trustee or the Depositor, but not an
employee of any
<PAGE> 15
10
thereof, and which opinion shall be reasonably acceptable to the Property
Trustee.
"Original Declaration of Trust" has the meaning specified in
the preamble to this Declaration of Trust.
"Outstanding", with respect to Capital Securities, means, as
of the date of determination, all Capital Securities theretofore executed and
delivered under this Declaration of Trust, except:
(a) Capital Securities theretofore canceled by the Property
Trustee or delivered to the Property Trustee for cancellation;
(b) Capital 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 Capital Securities; provided that if such Capital Securities are
to be redeemed, notice of such redemption has been duly given pursuant
to this Declaration of Trust; and
(c) Capital Securities which have been paid or in exchange
for or in lieu of which other Capital 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 Capital Securities
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Capital 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 Capital 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 Capital Securities are owned by the Depositor, one
or more of the Trustees and/or any such Affiliate. Capital 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 Capital Securities and that the pledgee is not the Depositor or
any Affiliate of the Depositor.
<PAGE> 16
11
"Owner" means each Person who is the beneficial owner of a
Global Capital 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 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.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Declaration of
Trust 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
Declaration of Trust, 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
state or federal regulatory authority having jurisdiction over the Depositor.
<PAGE> 17
12
"Regulatory Capital Event" has the meaning specified in
Section 1.01 of the Indenture.
"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 managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary 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 Declaration of Trust, 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.
"Securities Act" means the Securities Act of 1933.
"Secretary of State" has the meaning specified in the
first recital to this Declaration of Trust.
"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 Capital Securities have voted on any matter provided
for in this Declaration of Trust, then for the purpose of any such
determination, so long as Definitive Capital 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 Regulatory Capital 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.
<PAGE> 18
13
"Transfer Agent" means the Bank as set forth in the preamble
to this Declaration of Trust.
"Trust" means BancorpSouth Capital Trust I.
"Trust Indenture Act" has the meaning specified in Section
1.01 of the Indenture.
"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 Capital Securities Certificates.
"Trust Security" means any one of the Common Securities or
the Capital Securities.
"Trustees" means, collectively, the Property Trustee, the
Delaware Trustee and the Administrative Trustees.
"Underwriters" means, Salomon Brothers Inc and Keefe,
Bruyette & Woods, Inc. and the several underwriters named in Schedule I to the
Underwriting Agreement.
"Underwriting Agreement" means the Underwriting Agreement,
dated as of [September , 1997], 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 sue 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
Bankers Trust (Delaware), E.A. Delle Donne Corporate Center, Montgomery
Building, 1011 Centre Road, Suite 200, Wilmington, DE 19805- 1266, Attention:
Corporate Trust Administration, or such
<PAGE> 19
14
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., One Mississippi
Plaza, Tupelo, MS 38801; Attention: Cathy S.
Freeman, 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 Capital Securities. The Capital
Securities to be issued will be limited to $75 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 Declaration of Trust, and the
Underwriters executed and delivered the Underwriting Agreement.
Contemporaneously with the execution and delivery of this Declaration of Trust,
an Administrative Trustee, on behalf of the Trust, shall ased 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 Declaration of Trust, 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
<PAGE> 20
15
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. Declaration of Trust. 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 Capital 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 Declaration of Trust. 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 Declaration of Trust, 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
<PAGE> 21
16
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 Capital
Securities under the Securities Act and under state
securities or blue sky laws, and the qualification of this
Declaration of Trust as a trust indenture under the Trust
Indenture Act;
(D) assisting in the listing, if any, of the Capital
Securities upon such securities exchange or exchanges as
shall be determined by the Depositor and the registration of
the Capital 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 Declaration of Trust;
(F) the appointment of a Paying Agent, Transfer
Agent and Securities Registrar in accordance with this
Declaration of Trust;
(G) registering transfer of the Trust Securities in
accordance with this Declaration of Trust;
(H) to the extent provided in this Declaration of
Trust, the winding up of the affairs 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;
<PAGE> 22
17
(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 Declaration of Trust; 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 effect to the terms of this
Declaration of Trust 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 Declaration of Trust;
(G) the distribution of the Trust Property in
accordance with the terms of this Declaration of
Trust;
<PAGE> 23
18
(H) to the extent provided in this Declaration of
Trust, 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 the Property Trustee
may from time to time determine is necessary or advisable to
give effect to the terms of this Declaration of Trust 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 Declaration of Trust 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 Declaration of
Trust, (ii) sell, assign, transfer, exchange, mortgage, pledge, set-off or
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 Declaration of Trust 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 Declaration of Trust or by the terms of the Trust
Securities), (x) issue any securities or other evidences of beneficial
ownership of, or beneficial
<PAGE> 24
19
interest in, the Trust other than the Trust Securities, or (xi) other than as
provided in this Declaration of Trust 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 Declaration of Trust 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
<PAGE> 25
20
order to comply with the applicable laws of any such
states;
(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 Declaration of Trust, 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
Declaration of Trust.
<PAGE> 26
21
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 Declaration of Trust. 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 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
is 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
<PAGE> 27
22
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 [September ] and
[March ].
SECTION 4.02. Redemption. (a) On each Junior Subordinated
Debt Securities Redemption Date and on the Stated Maturity of the Junior
Subordinated Debt Securities,
<PAGE> 28
23
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,
<PAGE> 29
24
subject to Section 4.02(c), the Property Trustee will, so long as the Capital
Securities are in book-entry-only form, irrevocably deposit with the Clearing
Agency for the Capital 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 Capital 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 Capital 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
Capital 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, 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
<PAGE> 30
25
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 $1,000 or an integral multiple of $1,000
in excess thereof) of the Liquidation Amount of Trust Securities of a
denomination larger than $1,000. 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 Declaration
of Trust, 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 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 Capital Securities for
all Distribution Dates occurring on or prior thereto, or, in the
<PAGE> 31
26
case of payment of the applicable Redemption Price the full amount of such
Redemption Price on all outstanding Capital 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 on, or the
Redemption Price of, Capital 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 Declaration of Trust until the effect of all such Events
of Default with respect to the Capital Securities have been cured, waived or
otherwise eliminated. Until all such Events of Default under this Declaration
of Trust with respect to the Capital Securities have been so cured, waived or
otherwise eliminated, the Property Trustee shall act solely on behalf of the
Holders of the Capital Securities and not on behalf of the Holder of the Common
Securities, and only the Holders of the Capital Securities will have the right
to direct the Property Trustee to act on their behalf.
SECTION 4.04. Payment Procedures. In the event Definitive
Capital Securities Certificates are issued, payments of Distributions in
respect of the Capital 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 Capital 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
<PAGE> 32
27
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.
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 Capital
Securities Certificates shall be issued only in minimum denominations of $1,000
Liquidation Amount (which is equivalent to One Capital Security) and integral
multiples of $1,000 in excess thereof, and the Common Securities Certificates
shall be issued in denominations of $1,000 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 Declaration of Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the delivery of such Trust Securities
<PAGE> 33
28
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 Capital Securities
shall be issued in the form of a Global Capital 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 Capital 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.
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 Capital Security. (a) The Global Capital
Security issued under this Declaration of Trust shall be registered in the name
of Cede & Co. as nominee of the Clearing Agency and delivered to its custodian
therefor, and such Global Capital Security shall constitute a single Capital
Security for all purposes of this Declaration of Trust.
(b) Notwithstanding any other provision in this Declaration
of Trust, the Global Capital Security may not be exchanged in whole or in part
for Capital Securities registered, and no transfer of the Global Capital
Security
<PAGE> 34
29
in whole or in part may be registered, in the name of any Person other than the
Clearing Agency for such Global Capital 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 Capital
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 Capital Security may be exchanged by or on
behalf of DTC for certificated Capital 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 Capital Security, shall be considered the Holder of the
Capital Securities represented by the Global Capital Security for all purposes
under this Declaration of Trust and the Capital Securities, and owners of
beneficial interests in the Global Capital 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 Capital Securities
represented by the Global Capital Security registered in their names, shall not
receive nor be entitled to receive physical delivery of any such Capital
Securities in definitive form and shall not be considered the Holders thereof
under this Declaration of Trust. Accordingly, any such owner's beneficial
interest in the Global Capital 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
Declaration of Trust relating to the Global Capital Securities (including the
payment of the Liquidation Amount of and Distributions on the Global Capital
Securities and the giving of instructions or directions to Owners of Global
Capital Securities) as the sole Holder of Global Capital Securities and shall
have no obligations to the Owners thereof. Neither 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 Capital Security shall be exercised only through the Clearing Agency and
shall be limited to those
<PAGE> 35
30
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 Capital 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 Capital Securities are credited on such record date.
SECTION 5.05. Registration of Transfer and Exchange
Generally; Certain Transfers and Exchanges; Capital 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 Capital Securities Certificates and Common Securities Certificates
and transfers and exchanges of Capital Securities Certificates and Common
Securities Certificates in which the registrar and transfer agent with respect
to the Capital Securities (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Capital 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 Capital 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 Capital
Securities and transfers of Capital 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 Capital
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 Capital Securities of any authorized denominations
of like tenor and aggregate liquidation amount and bearing such restrictive
legends as may be required by this Declaration of Trust.
At the option of the Holder, Capital Securities may be
exchanged for other Capital Securities of any authorized denominations, of like
tenor and aggregate Liquidation Amount and bearing such restrictive legends as
<PAGE> 36
31
may be required by this Declaration of Trust, upon surrender of the Capital
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 Capital Securities that the Holder
making the exchange is entitled to receive.
All Capital Securities issued upon any transfer or exchange
of Capital Securities shall be the valid obligations of the Trust, entitled to
the same benefits under this Declaration of Trust as the Capital Securities
surrendered upon such transfer or exchange.
Every Capital 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 Capital 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 Capital 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 Capital Security during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Capital
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 Capital Security so selected for redemption in
whole or in part, except, in the case of any such Capital Security to be
redeemed in part, any portion thereof not to be redeemed.
The Capital Securities will be issued, and may be
transferred, only in blocks having a Liquidation Amount of not less than $1,000
and integral multiples thereof.
(b) Certain Transfers and Exchanges. Subject to Section
5.04(c), but notwithstanding any other provision of this Declaration of Trust,
transfers and exchanges of Capital Securities and beneficial interests in a
Global Capital Security shall be made only in accordance with this Section
5.05(b) and Section 5.04(c).
<PAGE> 37
32
(i) Non-Global Security to Non-Global Security. A Capital
Security that is not a Global Capital Security may be transferred, in
whole or in part, to a Person who takes delivery in the form of
another Capital Security that is not a Global Security as provided in
Section 5.05(a).
(ii) Exchanges Between Global Capital Security and Non-Global
Capital Security. A beneficial interest in the Global Capital Security
may be exchanged for a Capital Security that is not a Global Capital
Security as provided in Section 5.04.
(iii) Limitations Relating to Liquidation Amount.
Notwithstanding any other provision of this Declaration of Trust and
unless otherwise specified as permitted by this Declaration of Trust,
Capital Securities or portions thereof may be transferred or exchanged
only in Liquidation Amounts of not less than $1,000.
SECTION 5.06. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates. Provided Definitive Capital 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 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
<PAGE> 38
33
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 Capital 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 Bankers Trust Company,
Four Albany Street, New York, NY 10006, Attention: Corporate Trust and Agency
Group - Corporate Market Services, 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 Declaration of Trust 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
<PAGE> 39
34
Agent shall be 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 Declaration of Trust 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 DECLARATION OF
TRUST".
SECTION 5.12. Notices to Clearing Agency. To the extent that
a notice or other communication to the Owners is required under this
Declaration of Trust, for so long as Capital 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
<PAGE> 40
35
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 Declaration of Trust. 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.
(b) For so long as any Capital 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 Capital 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
<PAGE> 41
36
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 Capital Securities representing a
majority in aggregate Liquidation Amount of all the Outstanding Capital
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).
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
Capital Securities may, on behalf of the Holders of all the Capital 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
<PAGE> 42
37
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 Capital Securities all or part of which is represented by Global Capital
Securities, a record date shall be established for determining Holders of
Outstanding Capital 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 Capital Securities remain Outstanding,
to the fullest extent permitted by law and subject to the terms of this
Declaration of Trust 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 Capital
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 Capital 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 Capital
<PAGE> 43
38
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 Capital Securityholder's Voting
Rights. (a) Except as provided in this Declaration of Trust and in the
Indenture and as otherwise required by law, no Holder of Capital Securities
shall have any right to vote or in any manner 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
Capital 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 Capital
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 Capital Securities. The
Trustees shall not revoke any action previously authorized or approved by a
vote of the Holders of Capital Securities, except by a subsequent vote of the
<PAGE> 44
39
Holders of Capital Securities. The Property Trustee shall notify all Holders of
the Capital 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 Capital 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 Declaration of Trust
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 Declaration of Trust or otherwise, or (ii) the dissolution,
winding-up or termination of the Trust, other than pursuant to the terms of
this Declaration of Trust, 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.
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.
<PAGE> 45
40
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
Declaration of Trust requires a greater number of affirmative votes.
SECTION 6.04. Voting Rights. Securityholders shall be
entitled to one vote for each $1,000 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 Declaration of Trust) 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
<PAGE> 46
41
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
Declaration of Trust, or for the purpose of any other 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 Declaration of Trust 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 Declaration of Trust 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
<PAGE> 47
42
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.
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
<PAGE> 48
43
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 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
<PAGE> 49
44
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
Declaration of Trust, and the Securityholders will be, as of each such date,
entitled to the benefits of this Declaration of Trust.
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
Declaration of Trust 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
Declaration of Trust becomes qualified under the Trust Indenture Act upon the
<PAGE> 50
45
effectiveness of a registration statement pursuant to the Registration
Agreement. Notwithstanding the foregoing, no provisions of this Declaration of
Trust 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, if they shall
have reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not reasonably assured to
it. Whether or not herein expressly so provided, every provision of this
Declaration of Trust 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 Declaration of Trust 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 wilful 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 Declaration of Trust. The provisions of this Declaration of
Trust, 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 Declaration of Trust or, in the
case of the Property Trustee, in the Trust Indenture Act, if applicable.
(c) No provision of this Declaration of Trust shall be
construed to relieve the Property Trustee from
<PAGE> 51
46
liability for its own negligent action, its own negligent failure to act, or
its own wilful 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 Declaration of Trust;
(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 Declaration of Trust 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
with the Depositor; and money held by the Property Trustee need not be
segregated from other funds held by it except in 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 Declaration of Trust
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
<PAGE> 52
47
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 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 Declaration of
Trust the Property Trustee is required to decide between alternative
courses of action or (ii) in construing any of the provisions of this
Declaration of Trust 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
Declaration of Trust, then, except as to any matter as to which the
Securityholders are entitled to vote under the terms of this
Declaration of Trust, 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
<PAGE> 53
48
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 with this Declaration of
Trust as it shall deem advisable and in the best interests of the
Securityholders, in which event the Property Trustee shall have no
liability except for its own bad faith, negligence or wilful
misconduct;
(c) any direction or act of the Depositor or the
Administrative Trustee contemplated by this Declaration of Trust shall
be sufficiently evidenced by an Officers' Certificate;
(d) whenever in the administration of this Declaration of
Trust, 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; (which Officers' Certificate
will be evidence only for purposes of determining entitlement to
indemnification of the Property Trustee from the Depositor but not
with respect to any liability to Securityholders);
(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 Declaration of Trust from any court of
competent jurisdiction;
<PAGE> 54
49
(g) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
of Trust at the request or direction of any of the Securityholders
pursuant to this Declaration of Trust, 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;
(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;
(j) whenever in the administration of this Declaration of
Trust 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
Declaration of Trust, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration of Trust;
<PAGE> 55
50
(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 Declaration of Trust 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.
<PAGE> 56
51
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:
(a) to pay to the Trustees from time to time reasonable
compensation for all services rendered by them hereunder (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 Declaration of Trust (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or wilful 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 Declaration of Trust, except that no
Indemnified Person shall be entitled to be indemnified in respect of
any loss, damage or claim incurred by such Indemnified Person by
reason of negligence or wilful 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
<PAGE> 57
52
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 Declaration of Trust 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 Declaration of Trust 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 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
<PAGE> 58
53
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 Declaration of Trust 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 Declaration of Trust.
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 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
<PAGE> 59
54
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
<PAGE> 60
55
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.
(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
<PAGE> 61
56
Holders of a majority in Liquidation Amount of the Outstanding Capital
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 Capital Securityholders, by Act of the Capital Securityholders of a
majority in Liquidation Amount of the Capital 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 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 Capital 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
<PAGE> 62
57
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
Declaration of Trust, 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 Declaration of Trust 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
<PAGE> 63
58
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 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.
<PAGE> 64
59
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,
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.
<PAGE> 65
60
SECTION 8.14. Reports by Property Trustee. Upon
qualification of this Declaration of Trust 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 1998, 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 Declaration of Trust 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 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 Declaration of
Trust 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
<PAGE> 66
61
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 Declaration of Trust.
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 Declaration of Trust, as
set forth herein.
<PAGE> 67
62
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 [August [ ], 2037] (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 Security
holders;
(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
<PAGE> 68
63
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 liquidation 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 Declaration of Trust.
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 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
<PAGE> 69
64
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 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
<PAGE> 70
65
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 Capital 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 Capital 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 Capital 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. Upon such liquidation 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.
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 Capital 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 Capital
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 Capital Securities are then listed
<PAGE> 71
66
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, 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. 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 Declaration of Trust nor annul, dissolve or
terminate the Trust, nor entitle the
<PAGE> 72
67
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 Declaration of Trust 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 Declaration of Trust,
which shall not be inconsistent with the other provisions of this Declaration
of Trust; or (ii) to modify, eliminate or add to any provisions of this
Declaration of Trust 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
Securityholder, and any such amendments of this Declaration of Trust shall
become effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.02(c) hereof, any
provision of this Declaration of Trust 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.
<PAGE> 73
68
(c) In addition to and notwithstanding any other provision in
this Declaration of Trust, without the consent of each affected Securityholder
(such consent being obtained in accordance with Section 6.03 or 6.08 hereof),
this Declaration of Trust 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 10.02 may not be amended.
(d) Notwithstanding any other provisions of this Declaration
of Trust, no Trustee shall enter into or consent to any amendment to this
Declaration of Trust 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 Declaration of Trust to
the contrary, without the consent of the Depositor this Declaration of Trust
may not be amended in a manner which imposes any additional obligation on the
Depositor.
(f) Notwithstanding any other provision of this Declaration
of Trust, no amendment to this Declaration of Trust 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 Declaration of
Trust 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 Declaration of Trust
which affects its own rights, duties or immunities under this Declaration of
Trust 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 Declaration of Trust is in compliance with this Declaration of Trust.
<PAGE> 74
69
(i) The Property Trustee shall provide to the Depositor
copies of any amendments to this Declaration of Trust 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
Declaration of Trust 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 Declaration of Trust and
the rights and obligations of each of the Securityholders, the Trust and the
Trustees with respect to this Declaration of Trust 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 Declaration of Trust 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 Declaration
of Trust.
SECTION 10.09. Reports, Notices and Demands. Any report,
notice, demand or other communication which by any provision of this
Declaration of Trust is required or permitted to be given or served to or upon
any Securityholder or the Depositor may be given or served in
<PAGE> 75
70
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 Capital Securityholder, to such Capital 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., One Mississippi Plaza, Tupelo, Mississippi 38801, Attention: Cathy S.
Freeman, Secretary, facsimile no.:[ ], with a copy (which shall not constitute
notice) to Waller Lansden Dortch & Davis PLLC, 511 Union Street, Suite 2100,
Nashville, Tennessee 37219, Attention: Ralph W. Davis, facsimile no.: (615)
244-6804. Any notice to Capital 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.
Any notice, demand or other communication which by any
provision of this Declaration of Trust 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 Bankers Trust Company, Four Albany Street, 4th Floor, New York, NY
10006, Attention: Corporate Trust and Agency Group - Corporate Market Services;
(b) with respect to the Delaware Trustee to Bankers Trust (Delaware), E.A.
Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road, Suite 200,
Wilmington, Delaware 19805-1266, 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
<PAGE> 76
71
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 10.09 shall
survive the termination of this Declaration of Trust.
SECTION 10.11. Trust Indenture Act; Conflict with Trust
Indenture Act. (a) This Declaration of Trust is subject to the provisions of
the Trust Indenture Act that are required to be part of this Declaration of
Trust 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
Declaration of Trust by any of the provisions of the Trust Indenture Act, such
required provision shall control. If any provision of this Declaration of Trust
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
Declaration of Trust as so modified or excluded, as the case may be.
(d) The application of the Trust Indenture Act to this
Declaration of Trust shall not affect the nature of the Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
<PAGE> 77
72
SECTION 10.12. Acceptance of Terms of Declaration of Trust,
Guarantee 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 DECLARATION OF TRUST 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 DECLARATION OF TRUST SHALL BE BINDING, OPERATIVE AND
EFFECTIVE AS BETWEEN THE TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.
BANCORPSOUTH, INC., Depositor
by
-----------------------------------
Name:
Title:
<PAGE> 78
BANKERS TRUST COMPANY, as
Property Trustee
by
--------------------------------
Name:
Title:
<PAGE> 79
BANKERS TRUST (DELAWARE), as
Delaware Trustee and not in
its individual capacity
by
--------------------------------------
Name:
Title:
<PAGE> 80
-------------------------------------
Aubrey B. Patterson,
as Administrative Trustee
-------------------------------------
L. Nash Allen, Jr.
as Administrative Trustee
<PAGE> 81
EXHIBIT A
CERTIFICATE OF TRUST OF
BANCORPSOUTH CAPITAL TRUST I
THIS CERTIFICATE OF TRUST of BancorpSouth Capital Trust I (the "Trust"), dated
as of August 22, 1997, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section 3801 et seq.).
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 is Bankers Trust (Delaware), E.A.
Delle Donne Corporate Center, Montgomery Building, 1011 Centre Road,
Wilmington, Delaware 19805-1266.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of
the Trust, have executed this Certificate of Trust as of the date first written
above.
BANKERS TRUST (DELAWARE),
as trustee
by /s/ M. Lisa Wilkins
--------------------------------
Name: M. Lisa Wilkins
Title: Assitant Secretary
/s/ Aubry B. Patterson
------------------------------------
Aubrey B. Patterson, not in
his individual capacity but
solely as trustee of the Trust
/s/ L. Nash Allen, Jr.
-------------------------------
L. Nash Allen, Jr., not in his
individual capacity but solely
as trustee of the Trust
<PAGE> 82
EXHIBIT B
IF THE CAPITAL SECURITIES CERTIFICATE IS TO BE A GLOBAL
SECURITIES CERTIFICATE, INSERT--[This Capital Securities Certificate is a
Global Capital Securities Certificate within the meaning of the Declaration of
Trust hereinafter referred to and is registered in the name of The Depository
Trust Company (the "Depositary") or a nominee of the Depositary. This Capital
Securities Certificate is exchangeable for Capital Securities Certificates
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Declaration of Trust and no
transfer of this Capital Securities Certificate (other than a transfer of this
Capital 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 Declaration of Trust.
Unless this Capital 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 Capital 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 Capital Securities are issued, any may be transferred,
only in blocks having a Liquidation Amount of not less than $1,000 and integral
multiples thereof.
<PAGE> 83
2
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER CAPITAL SECURITIES
CUSIP NO. [ ]
CERTIFICATE EVIDENCING CAPITAL SECURITIES
OF
BANCORPSOUTH CAPITAL TRUST I
[ ]% CAPITAL TRUST PASS-THROUGH SECURITIES (R) (TRUPS)(R)
(LIQUIDATION AMOUNT $1,000 PER CAPITAL 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 _________ ( ) Capital
Securities of the Trust representing an undivided beneficial interest in the
assets of Trust and has designated BancorpSouth Capital Trust I [ ]% Capital
Trust Pass-through Securities(R) (Liquidation Amount $1,000 per Capital
Security) (the "Capital Securities"). The Capital 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 Declaration of Trust (as
defined below). The designations, rights, privileges, restrictions, preferences
and other terms and provisions of the Capital Securities are set forth in, and
this certificate and the Capital Securities presented hereby are issued and
shall in all respects be subject to the terms and provisions of, the Amended
and Restated Declaration of Trust of the Trust dated as of September [ ], 1997
as the same may be amended from time to time (the "Declaration of Trust") among
BancorpSouth, Inc., as Depositor, Bankers Trust Company, as Property Trustee,
Bankers Trust (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
Capital 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 Bankers Trust Company, as Guarantee Trustee, dated as of
September [ ], 1997, (the "Guarantee"), to the extent provided therein. The
Trust will furnish a copy of the Declaration of Trust and the Guarantee to the
Holder without
<PAGE> 84
3
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
Declaration of Trust. The Declaration of Trust and this Capital 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
Declaration of Trust and is entitled to benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this Certificate this [ ] day of September, 1997.
BANCORPSOUTH CAPITAL TRUST I
by
----------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
---------------------------------
Authorized Signatory
<PAGE> 85
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
this Capital 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 Capital 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 Capital 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 17Ad-15.
<PAGE> 86
EXHIBIT C
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT AS PROVIDED IN THE DECLARATION OF TRUST
LIQUIDATION AMOUNT OF
CERTIFICATE NUMBER COMMON SECURITIES
Certificate Evidencing Common Securities
of
BancorpSouth Capital Trust I
[ ]% Common Securities
(Liquidation Amount $1,000 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 beneficial interests of the Trust
and designated the [ ]% Common Securities (Liquidation Amount $1,000 per Common
Security) (the "Common Securities"). Except as provided in Section 5.11 of the
Declaration of Trust (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 Amended and Restated Declaration of Trust
of the Trust dated as of September [ ], 1997, as the same may be amended from
time to time (the "Declaration of Trust") among BancorpSouth, Inc., as
Depositor, Bankers Trust Company, as Property Trustee, Bankers Trust
(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 Declaration of Trust
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 Declaration of Trust. The Declaration of Trust 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.
<PAGE> 87
2
Upon receipt of this certificate, the Holder is bound by the
Declaration of Trust and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this [ ] day of September, 1997.
BANCORPSOUTH CAPITAL TRUST I
by
-------------------------------
Name:
Title: Administrative
Trustee
COUNTERSIGNED AND REGISTERED:
BANKERS TRUST COMPANY, as
Property Trustee
by
------------------------------
Authorized Signatory
<PAGE> 1
EXHIBIT 4.8
===============================================================================
GUARANTEE AGREEMENT
Between
BANCORPSOUTH, INC.
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
[September ], 1997
================================================================================
<PAGE> 2
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of Section of
Trust Indenture Act Guarantee Agreement
of 1939, as amended -------------------
- -------------------
<S> <C>
310(a) ................................................ 4.01(a)
310(b) ................................................ 4.01(c), 2.08
310(c) ................................................ Inapplicable
311(a) ................................................ 2.02(b)
311(b) ................................................ 2.02(b)
311(c) ................................................ Inapplicable
312(a) ................................................ 2.02(a)
312(b) ................................................ 2.02(b)
313(a) ................................................ 2.03
313(b) ................................................ 2.03
313(c) ................................................ 2.03
313(d) ................................................ 2.03
314(a) ................................................ 2.04
314(b) ................................................ Inapplicable
314(c) ................................................ 2.05
314(d) ................................................ Inapplicable
314(e) ................................................ 1.01, 2.05, 3.02
314(f) ................................................ 2.01, 3.02
315(a) ................................................ 3.01(d)
315(b) ................................................ 2.07
315(c) ................................................ 3.01(c)
315(d) ................................................ 3.01(d)
316(a) ................................................ 1.01, 2.06, 5.04
316(b) ................................................ 5.03, 5.04
316(c) ................................................ 8.02
317(a) ................................................ Inapplicable
317(b) ................................................ Inapplicable
318(a) ................................................ 2.01(b)
</TABLE>
- --------
*This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Definitions
SECTION 1.01. Definitions......................................... 2
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application.................... 5
SECTION 2.02. List of Holders..................................... 5
SECTION 2.03. Reports by the Guarantee Trustee.................... 5
SECTION 2.04. Periodic Reports to Guarantee Trustee............... 6
SECTION 2.05. Evidence of Compliance with Conditions Precedent.... 6
SECTION 2.06. Events of Default; Waiver........................... 6
SECTION 2.07. Event of Default; Notice............................ 6
SECTION 2.08. Conflicting Interests............................... 7
ARTICLE III
Powers, Duties and Rights of the Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee.......... 7
SECTION 3.02. Certain Rights of Guarantee Trustee................. 9
SECTION 3.03. Indemnity........................................... 11
SECTION 3.04. Expenses............................................ 11
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Guarantee Trustee; Eligibility...................... 11
SECTION 4.02. Appointment, Removal and Resignation of
the Guarantee Trustee............................. 12
</TABLE>
<PAGE> 4
2
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE V
Guarantee
SECTION 5.01. Guarantee........................................... 13
SECTION 5.02. Waiver of Notice and Demand......................... 13
SECTION 5.03. Obligations Not Affected............................ 13
SECTION 5.04. Rights of Holders................................... 14
SECTION 5.05. Guarantee of Payment................................ 15
SECTION 5.06. Event of Default.................................... 15
SECTION 5.07. Subrogation......................................... 15
SECTION 5.08. Independent Obligations............................. 15
ARTICLE VI
Covenants and Subordination
SECTION 6.01. Subordination....................................... 16
SECTION 6.02. Pari Passu Guarantees............................... 16
ARTICLE VII
Termination
SECTION 7.01. Termination.......................................... 16
ARTICLE VIII
Miscellaneous
SECTION 8.01. Successors and Assigns............................... 17
SECTION 8.02. Amendments........................................... 17
SECTION 8.03. Notices.............................................. 17
SECTION 8.04. Benefit.............................................. 19
SECTION 8.05. Interpretation....................................... 19
SECTION 8.06. Governing Law........................................ 19
</TABLE>
<PAGE> 5
GUARANTEE AGREEMENT, dated as of September [ ],
1997, executed and delivered by BANCORPSOUTH, INC., a Mississippi corporation
and bank holding company (the "Guarantor") having its principal office at One
Mississippi Plaza, Tupelo, MS 38802, and BANKERS TRUST COMPANY, a New York
banking corporation, as trustee (the "Guarantee Trustee"), for the benefit of
the Holders (as defined herein) from time to time of the Trust Securities (as
defined herein) of BANCORPSOUTH CAPITAL TRUST I, a Delaware statutory business
trust (the "Issuer").
WHEREAS pursuant to an Amended and Restated Declaration of
Trust (the "Declaration of Trust"), dated as of September [ ] 1997, among the
Trustees named therein, the Guarantor, as Depositor, and the Holders from time
to time of undivided beneficial ownership interests in the assets of the
Issuer, the Issuer is issuing $75,000,000 aggregate liquidation amount of its [
]% Capital Securities, liquidation amount $1,000 per Security (the "Capital
Securities") and $[ ] of aggregate liquidation amount of Common Securities,
liquidation amount $1,000 per security (the "Common Securities" and
collectively with the Capital Securities, the "Trust Securities") representing
undivided beneficial ownership interests in the assets of the Issuer and having
the terms set forth in the Declaration of Trust;
WHEREAS the Trust Securities will be issued by the Issuer and
the proceeds thereof will be used by the Issuer to purchase the Junior
Subordinated Debt Securities due [September [ ], 2027] (as defined in the
Declaration of Trust) (the "Junior Subordinated Debt Securities") of the
Guarantor, which will be held by Bankers Trust Company, as Property Trustee
under the Declaration of Trust, as trust assets; and
WHEREAS as incentive for the Holders to purchase Trust
Securities the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the purchase by each
Holder, which purchase the Guarantor hereby agrees shall benefit the Guarantor,
the Guarantor executes and
<PAGE> 6
2
delivers this Guarantee Agreement for the benefit of the Holders from time to
time of the Trust Securities.
ARTICLE I
Definitions
SECTION 1.01. Definitions. As used in this Guarantee
Agreement, the terms set forth below shall, unless the context otherwise
requires, have the following meanings. Capitalized or otherwise defined terms
used but not otherwise defined herein shall have the meanings assigned to such
terms in the Declaration of Trust as in effect on the date hereof.
"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; provided, however, that an Affiliate
of the Guarantor shall not be deemed to include the Issuer. 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.
"Capital Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Common Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
"Debt" shall have the meaning specified in the Indenture.
"Declaration of Trust" shall have the meaning specified in
the first recital of this Guarantee Agreement.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payments, the Guarantor shall have received notice of default and shall not
have cured such default within 60 days after receipt of such notice; provided,
further, that no Event of Default shall occur unless an Event of Default (as
defined in the Indenture or the Declaration of Trust) shall have occurred and
be continuing.
<PAGE> 7
3
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Trust Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions required to be paid on the Trust Securities, to the extent
the Issuer shall have funds on hand available therefor at such time, (ii) the
redemption price, including all accrued and unpaid Distributions to the date of
redemption (the "Redemption Price"), with respect to the Trust Securities
called for redemption by the Issuer to the extent the Issuer shall have funds
on hand available therefor at such time, and (iii) upon a voluntary or
involuntary termination, winding-up or liquidation of the Issuer, unless Junior
Subordinated Debt Securities are distributed to the Holders or all of the
Capital Securities are redeemed, the lesser of (a) the aggregate of the
liquidation amount of $1,000 per Trust Security plus accrued and unpaid
Distributions to the date of payment to the extent the Issuer shall have funds
on hand available to make such payment at such time and (b) the amount of
assets of the Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation Distribution").
"Guarantee Trustee" means Bankers Trust Company, until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee Agreement and thereafter
means each such Successor Guarantee Trustee.
"Guarantor" shall have the meaning specified in the first
recital of this Guarantee Agreement.
"Holder" means a person in whose name a Trust Security or
Trust Securities is registered on the books and records of the Issuer;
provided, however, that in determining whether the holders of the requisite
percentage of Trust Securities have given any request, notice, consent or
waiver hereunder, "Holder" shall not include the Guarantor, the Guarantee
Trustee, or any Affiliate of the Guarantor or the Guarantee Trustee.
"Indenture" means the Junior Subordinated Indenture dated as
of September [ ], 1997, as supplemented and amended between the Guarantor and
Bankers Trust Company, as trustee, relating to the issuance of the Junior
Subordinated Debt Securities.
"Issuer" shall have the meaning specified in the first
recital of this Guarantee Agreement.
<PAGE> 8
4
"List of Holders" has the meaning specified in Section
2.02(a).
"Majority in Liquidation Amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by the Holder(s), voting
separately as a class, of more than 50% of the aggregate Liquidation Amount of
all then Outstanding Capital Securities.
"Officers' Certificate" means, with respect to any Person, 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 such
Person, and delivered to the Guarantee Trustee. Any Officers' Certificate
delivered with respect to compliance with a condition or covenant provided for
in this Guarantee 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;
(c) statement that each 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
officer, such condition or covenant has been complied with.
"Responsible Officer" when used with respect to the Guarantee
Trustee means any officer assigned to the Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Guarantee 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.
<PAGE> 9
5
"Senior Debt" shall have the meaning specified in the
Indenture.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"Trust Securities" shall have the meaning specified in the
first recital of this Guarantee Agreement.
ARTICLE II
Trust Indenture Act
SECTION 2.01. Trust Indenture Act; Application. (a) This
Guarantee Agreement will be qualified under the Trust Indenture Act.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.02. List of Holders. (a) The Guarantor shall
furnish or cause to be furnished to the Guarantee Trustee (i) semiannually, not
more than 15 days after [insert date one month prior to record date] and
[insert date one month prior to record date] of each year, a list, in such form
as the Guarantee Trustee may reasonably require, of the names and addresses of
the Holders ("List of Holders") as of a date not more than 15 days prior to the
delivery thereof, and (ii) at such other times as the Guarantee Trustee may
request in writing, within 30 days after the receipt by the Guarantor of any
such request, a List of Holders as of a date not more than 15 days prior to the
time such list is furnished, in each case to the extent such information is in
the possession or control of the Guarantor and is not identical to a previously
supplied list of Holders or has not otherwise been received by the Guarantee
Trustee in its capacity as such. The Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 311(a), Section 311(b) and Section 312(b) of the Trust Indenture
Act.
SECTION 2.03. Reports by the Guarantee Trustee. Not later
than the last calendar day in February of each calendar year, commencing with
the last calendar day in
<PAGE> 10
6
February 1998, the Guarantee Trustee shall provide to the Holders such
reports dated as of December 31 of the prior year, if any, as are required by
Section 313 of the Trust Indenture Act in the form and in the manner provided
by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall also
comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. Periodic Reports to the Guarantee Trustee. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information, if any, as
required by Section 314 of the Trust Indenture Act and the compliance
certificate required by Section 314 of the Trust Indenture Act, in the form, in
the manner and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.05. Evidence of Compliance with Conditions
Precedent. The Guarantor shall provide to the Guarantee Trustee such evidence
of compliance with such conditions precedent, if any, provided for in this
Guarantee 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 any officer pursuant to Section 314(c)(1) may be given in the form of
an Officers' Certificate.
SECTION 2.06. Events of Default; Waiver. The Holders of a
Majority in Liquidation Amount of the Securities may, by vote, on behalf of the
Holders, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Guarantee Agreement, but no such waiver shall extend to any subsequent
or other default or Event of Default or impair any right consequent therefrom.
SECTION 2.07. Event of Default; Notice. (a) The Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default,
transmit by mail, first class postage prepaid, to the Holders, notices of all
Events of Default known to the Guarantee Trustee, unless such Events of Default
have been cured before the giving of such notice; provided, that, except in the
case of a default in the payment of a Guarantee Payment, the Guarantee Trustee
shall be protected in withholding such notice if and so long as the Board of
Directors of the Guarantor, the executive committee or a trust committee of
directors and/or a Responsible Officer of the Guarantee Trustee in good faith
<PAGE> 11
7
determines that the withholding of such notice is in the interests of the
Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default unless a Responsible Officer charged with the
administration of the Declaration of Trust shall have received written notice
of such Event of Default.
SECTION 2.08. Conflicting Interests. The Declaration of Trust
shall be deemed to be specifically described in this Guarantee Agreement for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
ARTICLE III
Powers, Duties and Rights of the
Guarantee Trustee
SECTION 3.01. Powers and Duties of the Guarantee Trustee. (a)
This Guarantee Agreement shall be held by the Guarantee Trustee for the benefit
of the Holders, and the Guarantee Trustee shall not transfer this Guarantee
Agreement to any Person except a Holder exercising his or her rights pursuant
to Section 5.04(iv) or to a Successor Guarantee Trustee on acceptance by such
Successor Guarantee Trustee of its appointment to act as Successor Guarantee
Trustee. The right, title and interest of the Guarantee Trustee shall
automatically vest in any Successor Guarantee Trustee, upon acceptance by such
Successor Guarantee Trustee of its appointment hereunder, and such vesting and
cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing,
the Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of
the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee Agreement, and no implied covenants shall be read into
this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.06), the Guarantee Trustee shall exercise such of the rights and powers
vested in it by this Guarantee Agreement, and use the
<PAGE> 12
8
same degree of care and skill in its exercise thereof, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own wilful misconduct, except
that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that
may have occurred:
(A) the duties and obligations of the Guarantee Trustee
shall be determined solely by the express provisions of this
Guarantee Agreement, and the Guarantee Trustee shall not be
liable except for the performance of such duties and obligations
as are specifically set forth in this Guarantee Agreement; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Guarantee Trustee and conforming to the
requirements of this Guarantee Agreement; but in the case of any
such certificates or opinions that by any provision hereof or of
the Trust Indenture Act are specifically required to be
furnished to the Guarantee Trustee, the Guarantee Trustee shall
be under a duty to examine the same to determine whether or not
they conform to the requirements of this Guarantee Agreement;
(ii) the Guarantee Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer of
the Guarantee Trustee, unless it shall be proved that the
Guarantee Trustee was negligent in ascertaining the pertinent
facts upon which such judgment was made;
(iii) the Guarantee 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 Securities
relating to the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee, or
exercising any
<PAGE> 13
9
trust or power conferred upon the Guarantee Trustee under this
Guarantee Agreement; and
(iv) no provision of this Guarantee Agreement shall require
the Guarantee Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of any of its duties or in the exercise of any of its rights or
powers if the Guarantee Trustee shall have reasonable grounds
for believing that the repayment of such funds or liability is
not assured to it under the terms of this Guarantee Agreement or
indemnity satisfactory to it against such risk or liability is
not reasonably assured to it.
SECTION 3.02. Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.01:
(i) The Guarantee Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
reasonably believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Guarantee Agreement shall be sufficiently evidenced by an
Officers' Certificate unless otherwise prescribed herein.
(iii) Whenever, in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it desirable that a
matter be proved or established before taking, suffering or
omitting to take any action hereunder, the Guarantee 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 from the Guarantee Trustee, shall be
promptly delivered by the Guarantor.
(iv) The Guarantee Trustee may consult with legal counsel,
and the advice or written opinion of such legal counsel with
respect to legal matters shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion. Such legal
counsel may be legal counsel to the Guarantor or any of its
Affiliates
<PAGE> 14
10
and may be one of its employees. The Guarantee Trustee shall
have the right at any time to seek instructions concerning the
administration of this Guarantee Agreement from any court of
competent jurisdiction.
(v) The Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Guarantee Agreement at the request or direction of any Holder,
unless such Holder shall have provided to the Guarantee Trustee
such security and indemnity reasonably satisfactory to it,
against the costs, expenses (including attorneys' fees and
expenses) and liabilities that might be incurred by it in
complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee
Trustee; provided, that nothing contained in this Section
3.02(a)(v) shall be taken to relieve the Guarantee Trustee, upon
the occurrence of an Event of Default, of its obligation to
exercise the rights and powers vested in it by this Guarantee
Agreement.
(vi) The Guarantee 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, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document,
but the Guarantee Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as
it may see fit.
(vii) The Guarantee Trustee may execute any of the trusts
or powers hereunder or perform any duties hereunder either
directly or by or through its agents or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed
with due care by it hereunder.
(viii) Whenever in the administration of this Guarantee
Agreement the Guarantee Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Guarantee
Trustee (A) may request instructions from the Holders, (B) may
refrain from enforcing such remedy or right or taking such other
action until such instructions are received and (C) shall be
fully protected in acting in accordance with such instructions.
<PAGE> 15
11
(b) No provision of this Guarantee Agreement shall be deemed
to impose any duty or obligation on the Guarantee 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 Guarantee
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 Guarantee Trustee
shall be construed to be a duty to act in accordance with such power and
authority.
SECTION 3.03. Indemnity. The Guarantor agrees to indemnify
the Guarantee Trustee and its directors, officers, agents and employees for,
and to hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Guarantee Trustee or its
directors, officers, employees or agents, arising out of or in connection with
the acceptance or administration of this Guarantee Agreement, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Guarantee Trustee will not claim or exact any lien or charge on
any Guarantee Payments as a result of any amount due to it under this Guarantee
Agreement. This indemnity shall survive the termination of this Guarantee
Agreement or the resignation or removal of the Guarantee Trustee.
SECTION 3.04. Expenses. The Guarantor, as obligor on the
Junior Subordinated Debt Securities, shall from time to time reimburse the
Guarantee Trustee for its reasonable expenses and costs incurred in connection
with the performance of its duties hereunder.
ARTICLE IV
Guarantee Trustee
SECTION 4.01. Guarantee Trustee; Eligibility. (a) There
shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000, and shall be a corporation
meeting the requirements of Section 310(c) of the Trust
Indenture Act. If such
<PAGE> 16
12
corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the supervising or
examining authority, then, for the purposes of this Section and
to the extent permitted by the Trust Indenture Act, the combined
capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent
report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section
4.02(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 4.02. Appointment, Removal and Resignation of the
Guarantee Trustee. (a) Subject to Section 4.02(b), in the absence of the
existence of an Event of Default, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed until a
Successor Guarantee Trustee has been appointed and has accepted such
appointment by written instrument executed by such Successor Guarantee Trustee
and delivered to the Guarantor.
(c) The Guarantee Trustee appointed hereunder shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed
by such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Guarantee Trustee may petition, at the expense of the Guarantor, any
court of competent jurisdiction for appointment of a Successor Guarantee
Trustee. Such court may thereupon,
<PAGE> 17
13
after prescribing such notice, if any, as it may deem proper, appoint a
Successor Guarantee Trustee.
ARTICLE V
Guarantee
SECTION 5.01. Guarantee. The Guarantor irrevocably and
unconditionally agrees to pay in full to the Holders the Guarantee Payments
(without duplication of amounts theretofore paid by or on behalf of the
Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders. The Guarantor shall give prompt written notice to the
Guarantee Trustee in the event it makes any direct payment hereunder.
SECTION 5.02. Waiver of Notice and Demand. The Guarantor
hereby waives notice of acceptance of the Guarantee Agreement and of any
liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Guarantee Trustee, Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 5.03. Obligations Not Affected. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee
Agreement shall in no way be affected or impaired by reason of the happening
from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition
relating to the Trust Securities to be performed or observed by
the Issuer;
(b) the extension of time for the payment by the Issuer of
all or any portion of the Distributions (other than any
extension of time for payment of Distributions that results from
the extension of any interest payment period on the Junior
Subordinated Debt Securities as so provided in the Indenture),
Redemption Price, Liquidation Distribution or any other sums
payable under the terms of the Trust Securities or the
<PAGE> 18
14
extension of time for the performance of any other obligation
under, arising out of, or in connection with, the Trust
Securities;
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Trust Securities, or any action on
the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets
of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Trust Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a
guarantor, it being the intent of this Section 5.03 that the
obligations of the Guarantor hereunder shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice
to, or obtain the consent of, the Guarantor with respect to the happening of
any of the foregoing.
SECTION 5.04. Rights of Holders. The Guarantor expressly
acknowledges that: (i) this Guarantee Agreement will be deposited with the
Guarantee Trustee to be held for the benefit of the Holders; (ii) the Guarantee
Trustee has the right to enforce this Guarantee Agreement on behalf of the
Holders; (iii) the Holders of a Majority in Liquidation Amount of the
Securities have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Guarantee Trustee in respect of
this Guarantee Agreement or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee Agreement; and (iv) any Holder may
institute a legal proceeding directly against the Guarantor to enforce its
rights under this Guarantee Agreement, without first
<PAGE> 19
15
instituting a legal proceeding against the Issuer or any other Person.
SECTION 5.05. Guarantee of Payment. This Guarantee Agreement
creates a guarantee of payment and not of collection. This Guarantee Agreement
will not be discharged except by payment of the Guarantee Payments in full
(without duplication of amounts theretofore paid by the Issuer) or upon
distribution of Junior Subordinated Debt Securities to Holders as provided in
the Declaration of Trust.
SECTION 5.06. Event of Default. If an Event of Default under
the Declaration of Trust has occurred and is continuing, no Guarantee Payments
with respect to the Common Securities or any guarantee payment under any Other
Guarantees (as defined in the Indenture) with respect to Common Securities of
any other BancorpSouth Capital Trust (as defined in the Indenture), if any,
shall be made until the Holders of Capital Securities shall be paid in full the
Guarantee Payments to which they are entitled under this Guarantee Agreement.
Subordination of Guarantee Payments on the Common Securities following such an
Event of Default under the Declaration of Trust shall be analogous to the
subordination of the Common Securities provided for in Section 4.03 of the
Declaration of Trust.
SECTION 5.07. Subrogation. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in respect of any
amounts paid to the Holders by the Guarantor under this Guarantee Agreement and
shall have the right to waive payment by the Issuer pursuant to Section 5.01;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any rights
which it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee
Agreement, if at the time of any such payment, any amounts are due and unpaid
under this Guarantee Agreement. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount
in trust for the Holders and to pay over such amount to the Holders.
SECTION 5.08. Independent Obligations. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Trust Securities and that the Guarantor shall
be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee Agreement notwithstanding the
occurrence of any event referred to in
<PAGE> 20
16
subsections (a) through (g), inclusive, of Section 5.03 hereof.
ARTICLE VI
Covenants and Subordination
SECTION 6.01. Subordination. This Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all Senior Debt of the Guarantor, to the same
extent and in the same manner that the Junior Subordinated Debt Securities are
subordinated to Senior Debt pursuant to the Indenture, it being understood that
the terms of Article XIV of the Indenture shall apply to the obligations of the
Guarantor under this Guarantee Agreement as if (x) such Article XIV were set
forth herein in full and (y) such obligations were substituted for the term
"Securities" appearing in such Article XIV.
SECTION 6.02. Pari Passu Guarantees. This Guarantee Agreement
shall rank pari passu with any similar guarantee agreements issued by the
Guarantor on behalf of the holders of trust securities issued by a trust
created by the Guarantor similar to BancorpSouth Capital Trust I.
ARTICLE VII
Termination
SECTION 7.01. Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon (i) full payment of the
Redemption Price of all Trust Securities, (ii) the distribution of Junior
Subordinated Debt Securities to the Holders in exchange for all of the Trust
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration of Trust upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must repay any sums
paid with respect to Trust Securities or this Guarantee Agreement.
<PAGE> 21
17
ARTICLE VIII
Miscellaneous
SECTION 8.01. Successors and Assigns. All guarantees and
agreements contained in this Guarantee Agreement shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor and shall
inure to the benefit of the Holders then outstanding. Except in connection with
a consolidation, merger or sale involving the Guarantor that is permitted under
Article VIII of the Indenture and pursuant to which the assignee agrees in
writing to perform the Guarantor's obligations hereunder, the Guarantor shall
not assign its obligations hereunder.
SECTION 8.02. Amendments. Except with respect to any changes
which do not adversely affect the rights of the Holders in any material respect
(in which case no consent of the Holders will be required), this Guarantee
Agreement may only be amended with the prior approval of the Holders of not
less than a Majority in Liquidation Amount of the Securities. The provisions of
Article VI of the Declaration of Trust concerning meetings of the Holders shall
apply to the giving of such approval. SECTION 8.03. Notices. Any notice,
request or other communication required or permitted to be given hereunder
shall be in writing, duty signed by the party giving such notice, and
delivered, telecopied (confirmed by delivery of the original) or mailed by
first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address, facsimile number or to the attention of such
other Person as the Guarantor may give notice to the Holders:
BANCORPSOUTH, INC.
One Mississippi Plaza
Tupelo, MS 38801
Facsimile No.: (601) 680-2568
Attention: Cathy S. Freeman, Secretary
<PAGE> 22
18
with a copy (which shall not constitute notice) to:
WALLER LANSDEN DORTCH & DAVIS, PLLC
511 Union Street, Suite 2100
Nashville, TN 37219
Facsimile No.: (615) 244-6804
Attention: Ralph W. Davis, Esq.
(b) if given to the Issuer, in care of the Guarantee Trustee,
at the Issuer's (and the Guarantee Trustee's) address
set forth below or such other address, facsimile number
or to the attention of such other person as the
Guarantee Trustee on behalf of the Issuer may give
notice to the Holders:
BANCORPSOUTH CAPITAL TRUST I
c/o BANCORPSOUTH, INC.
One Mississippi Plaza
Tupelo, MS 38801
Facsimile No.:
Attention: Cathy S. Freeman, Secretary
with a copy to:
BANKERS TRUST COMPANY
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(c) if given to the Guarantee Trustee:
BANKERS TRUST COMPANY
Four Albany Street - 4th Floor
New York, NY 10006
Facsimile No.: (212) 250-6961
Attention: Corporate Trust and Agency Group
Corporate Market Services
(d) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices hereunder shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid, except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
<PAGE> 23
19
SECTION 8.04. Benefit. This Guarantee Agreement is solely for
the benefit of the Holders and is not separately transferable from the Trust
Securities.
SECTION 8.05. Interpretation. In this Guarantee Agreement,
unless the context otherwise requires:
(a) capitalized terms used in this Guarantee Agreement but not
defined in the preamble hereto have the respective meanings assigned
to them in Section 1.01;
(b) a term defined anywhere in this Guarantee Agreement has the
same meaning throughout;
(c) all references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise
defined in this Guarantee Agreement or unless the context otherwise
requires;
(f) a reference to the singular includes the plural and vice
versa; and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 8.06 Governing Law. THIS GUARANTEE AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
<PAGE> 24
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same
instrument.
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
BANCORPSOUTH, INC.
by
--------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as
Guarantee Trustee,
by
--------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 5.1
WALLER LANSDEN DORTCH & DAVIS
A PROFESSIONAL LIMITED LIABILITY COMPANY
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
FACSIMILES (615) 244-6380 809 SOUTH MAIN STREET
(615) 244-6804 P.O. BOX 1035
(615) 244-5686 COLUMBIA, TN 38402-1035
(615) 388-6031
August 26, 1997
Board of Directors
BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38801
Ladies and Gentlemen:
We are acting as special counsel to BancorpSouth, Inc., a Mississippi
corporation (the "Company"), and BancorpSouth Capital Trust I, a Delaware
statutory business trust (the "Trust"), in connection with the registration
under the Securities Act of 1933, as amended (the "Securities Act"), of up to
$75,000,000 aggregate liquidation amount of the Trust's Capital Trust
Pass-through Securities, Series A (the "Capital Securities"), the Company's
Junior Subordinated Debt Securities, which may be distributed upon liquidation
of the Trust (the "Debentures"), and a Guarantee by the Company with respect to
the Capital Securities (the "Guarantee"), pursuant to a Registration Statement
on Form S-3 (the "Registration Statement"), as filed by the Company and the
Trust under the Securities Act with the Securities and Exchange Commission.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Certificate of Trust of the Trust filed with the Secretary
of State of the State of Delaware on August 22, 1997; (iii) the Declaration of
Trust, dated August 22, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Administrative Trustees named therein; (iv) the form of Amended and Restated
Declaration of Trust of the Trust (the "Declaration"), among Bankers Trust
(Delaware), as Delaware trustee, and the Administrative Trustees named therein
(in the form filed as an exhibit to the Registration Statement); (v) the form
of the Capital Securities certificate (in the form filed as an exhibit to the
Registration Statement); (vi) the form of the Junior Subordinated Indenture
(the "Indenture") between the Company and Bankers Trust Company, as Indenture
Trustee (in the form filed as an exhibit to the Registration Statement); (vii)
the form of security for the Debentures (in the form filed as an exhibit to the
Registration Statement); and (viii) the form of Guarantee Agreement between the
Company and Bankers trust Company, as Guarantee Trustee (in the form filed as
an exhibit to the Registration Statement). We have also examined originals or
copies, certified or otherwise
<PAGE> 2
Board of Directors
BancorpSouth, Inc.
August 26, 1997
Page 2
identified to our satisfaction, of such other documents, certificates and
records as we have deemed necessary or appropriate as a basis for the opinions
set forth herein.
In our examination, we have assumed the genuineness of all signatures
(other than those on behalf of the Company), the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such copies. We
have also assumed that the documents of which we have only examined a form will
be executed and delivered by the Company in the form so examined. In making our
examination of documents executed, or to be executed, by parties other than the
Company, we have also assumed that such parties had, or will have (with respect
to documents to be executed), the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on such
parties. As to any facts material to the opinions expressed herein which we did
not independently establish or verify, we have relied upon oral or written
statements and representations of the Company and its officers and other
representatives, and have assumed that such matters remain true and correct
through the date hereof.
Members of this Firm are admitted to practice in the State of
Tennessee and certain members of this Firm are admitted to practice in the
State of New York. We express no opinion as to the laws of any jurisdiction
other than the laws of the State of Tennessee and the State of New York, and
the federal laws of the United States of America to the extent specifically
referred to herein.
Based upon and subject to the foregoing, and subject to the
limitations, qualifications, exceptions and assumptions set forth herein, we
are of the opinion that:
1. The Junior Subordinated Debt Securities have been duly
authorized for issuance by the Company, and when (i) the Declaration and the
Indenture are duly executed and have been qualified under the Trust Indenture
Act of 1939, as amended, and (ii) the Debentures are duly executed,
authenticated and issued in accordance with the Indenture and delivered and
issued as contemplated by the Registration Statement, the Debentures will
constitute valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors' rights generally
<PAGE> 3
Board of Directors
BancorpSouth, Inc.
August 26, 1997
Page 3
and (ii) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
2. The Guarantee has been duly authorized by the Company, and
when (i) the Declaration and the Indenture are duly executed and have been
qualified under the Trust Indenture Act of 1939, as amended, and (ii) the
Guarantee is duly executed and delivered by the Company and issued as
contemplated by the Registration Statement, the Guarantee will constitute a
valid, legal and binding agreement of the Company in favor of the holders of
Capital Securities, enforceable against the Company in accordance with its
terms, except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the prospectus forming a part of the Registration
Statement.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS, PLLC
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger]
August 25, 1997
BancorpSouth Capital Trust I
c/o BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38801
Re: BancorpSouth Capital Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for BancorpSouth, Inc., a
Mississippi corporation (the "Company"), and BancorpSouth Capital Trust I, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our examination
of documents has been limited to the examination of originals or copies of the
following:
(a) The Certificate of Trust of the Trust, dated as of August 22, 1997
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on August 22, 1997;
(b) The Declaration of Trust of the Trust, dated as of August 22, 1997,
among the Company, as Depositor, and the trustees of the Trust named therein;
<PAGE> 2
(c) The Registration Statement (the "Registration Statement") on Form S-3,
including a preliminary prospectus (the "Prospectus"), relating to the __%
Capital Trust Pass-through Securities of the Trust representing preferred
undivided beneficial interests in the assets of the Trust (each, a "Capital
Security" and collectively, the "Capital Securities"), as proposed to be filed
by the Company and the Trust as set forth therein with the Securities and
Exchange Commission on or about August 25, 1997;
(d) A form of Amended and Restated Declaration of Trust of the Trust, to
be entered into among the Company, as Depositor, the trustees of the Trust
named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, B and C thereto)
(the "Declaration"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 25, 1997,
obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are used
as defined in the Declaration.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular,
we have not reviewed any document (other than the documents listed in
paragraphs (a) through (e) above) that is referred to in or incorporated by
reference into the documents reviewed by us. We have assumed that there exists
no provision in any document that we have not reviewed that is inconsistent
with the opinions stated herein. We have conducted no independent factual
investigation of our own but rather have relied solely upon the foregoing
documents, the statements and information set forth therein and the additional
matters recited or assumed herein, all of which we have assumed to be true,
complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the Declaration and
the Certificate are in full force and effect and have not been amended, (ii)
except to the extent provided in paragraph 1 below, the due creation or due
organization or due formation, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, organization or formation, (iii) the legal
capacity of natural persons who are parties to the documents examined by us,
(iv) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (v) the due authorization, execution and delivery by all parties
thereto of all documents examined by us, (vi) the receipt by each Person to
whom a Capital Security is to be issued by the Trust (collectively, the
"Capital Security Holders") of an interest in the Capital Securities
Certificate for such Capital Security and the payment for the interest in the
Capital Security acquired by
<PAGE> 3
it, in accordance with the Declaration and the Registration Statement, and
(vii) that the Capital Securities are issued and sold in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
This opinion is limited to the laws of the State of Delaware (excluding
the securities laws of the State of Delaware), and we have not considered and
express no opinion on the laws of any other jurisdiction, including federal
laws and rules and regulations relating thereto. Our opinions are rendered only
with respect to Delaware laws and rules, regulations and orders thereunder that
are currently in effect.
Based upon the foregoing, and upon our examination of such questions of
law and statutes of the State of Delaware as we have considered necessary or
appropriate, and subject to the assumptions, qualifications, limitations and
exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Capital Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Capital Security Holders, as beneficial owners of the Trust, will
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. We note that the Capital Security
Holders may be obligated to make payments as set forth in the Declaration
We consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In addition, we hereby
consent to the use of our name under the heading "Legal Matters" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7
of the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder. Except as stated above, without
our prior written consent, this opinion may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours
/s/ Richards, Layton & Finger
<PAGE> 1
EXHIBIT 8.1
WALLER LANSDEN DORTCH & DAVIS
A Professional Limited Liability Company
NASHVILLE CITY CENTER
511 UNION STREET, SUITE 2100
POST OFFICE BOX 198966
NASHVILLE, TENNESSEE 37219-8966
Facsimiles (615) 244-6380 809 SOUTH MAIN STREET
(615) 244-6804 P. O. BOX 1035
(615) 244-5686 Columbia, TN 38402-1035
(615) 388-6031
August 26, 1997
Re: BANCORPSOUTH, INC.
BANCORPSOUTH CAPITAL TRUST I
ONE MISSISSIPPI PLAZA
TUPELO, MISSISSIPPI 38801
Ladies and Gentlemen:
We have acted as special tax counsel to BancorpSouth, Inc., a
Mississippi corporation (the "Company"), and BancorpSouth Capital Trust I, a
Delaware statutory business trust (the "Trust"), in connection with the
registration under the Securities Act of 1933, as amended (the "Securities Act
of 1933, as amended (the "Securities Act") of up to $75,000,000 of the Trust's
Capital Trust Pass-through Securities, Series A (the "Capital Securities"), and
the Company's Junior Subordinated Debt Securities (the "Debt Securities") and
the Guarantee of the Company with respect to the Capital Securities (the
"Guarantee," and together with the Capital Securities and the Debt Securities,
the "Securities"), pursuant to a Registration Statement on Form S-3 (the
"Registration Statement"), as filed by the Company and the Trust under the
Securities Act with the Securities and Exchange Commission. In connection with
such registration, you have requested our opinion that the Trust is classified
as a grantor trust under the Internal Revenue Code of 1986, as amended (the
"Code"), that the Debt Securities will be classified for United States federal
income tax purposes as indebtedness of the Company, and that the statements set
forth under the caption "Certain United States Federal Income Tax Consequences"
in the Prospectus constituting a part of the Registration Statement (the
"Prospectus") fairly and accurately summarize the United States federal income
tax consequences of the purchase, ownership and disposition of the Securities
in all material respects. All capitalized terms in this opinion which are
defined in the Registration Statement shall have the same respective meanings
as set forth in the Registration Statement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement; (ii) the Certificate of Trust of the Trust filed with the Secretary
of State of the State of Delaware on August 22, 1997; (iii) the Declaration of
Trust, dated August 22, 1997, among the Company, Bankers Trust Company, as
Property Trustee, Bankers Trust (Delaware), as Delaware Trustee, and the
Administrative
<PAGE> 2
BancorpSouth, Inc.
BancorpSouth Capital Trust I
August 26, 1997
Page 2
Trustees named therein; (iv) the form of Amended and Restated Declaration of
Trust of the Trust (the "Declaration"), among Bankers Trust (Delaware), as
Delaware trustee, and the Administrative Trustees named therein (in the form
filed as an exhibit to the Registration Statement); (v) the form of the Capital
Securities certificate (in the form filed as an exhibit to the Registration
Statement); (vi) the form of the Junior Subordinated Indenture (the
"Indenture") between the Company and Bankers Trust Company, as Indenture
Trustee (in the form filed as an exhibit to the Registration Statement); (vii)
the form of security for the Debentures (in the form filed as an exhibit to the
Registration Statement); and (viii) the form of Guarantee Agreement between the
Company and Bankers Trust Company, as Guarantee Trustee (in the form filed as
an exhibit to the Registration Statement). We have also examined originals or
copies, certified or otherwise identified to our satisfaction, of such other
documents, certificates and records, and made such investigations of fact and
law, as we have deemed necessary or appropriate as a basis for the opinions set
forth therein.
In our examination, we have assumed the genuineness of all signatures
(other than those on behalf of the Company), the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us as certified
or photostatic copies and the authenticity of the originals of such copies. We
have also assumed that the documents of which we have only examined a form will
be executed and delivered by he Company in the form so examined. In making
our examination of documents executed, or to be executed, by parties other than
the Company, we have also assumed that such parties had, or will have (with
respect to documents to be executed), the power, corporate or other, to enter
into and perform all obligations thereunder and have also assumed the due
authorization by all requisite action, corporate or other, and execution and
delivery by such parties of such documents and the validity and binding effect
thereof on such parties. As to any facts material to the opinions expressed
herein which we did not independently establish or verify, we have relied upon
oral or written statements and representations of the Company and its officers
and other representatives, and have assumed that such matters remain true and
correct through the date hereof.
Members of this firm are admitted to practice in the State of Tennessee
and certain members of this Firm are admitted to practice in the State of New
York. We express no opinion as to the laws of any jurisdiction other than the
laws of the State of Tennessee and the State of New York, and the federal laws
of the United States of America to the extent specifically referred to herein.
On the basis of and in reliance of the foregoing and subject to the
limitations, qualifications, exceptions and assumptions set forth herein, we
are of the opinion that, under current law, including relevant statutes,
regulations and judicial and administrative precedent (which law is subject to
change on a retroactive basis):
<PAGE> 3
BancorpSouth, Inc.
BancorpSouth Capital Trust I
August 26, 1997
Page 3
(a) the Trust is and will be classified as a grantor
trust and not as a partnership or an association taxable as a
corporation;
(b) the Debt Securities will be classified for United
States federal income tax purposes as indebtedness of the Company; and
(c) although the statements set forth under the caption
"Certain United States Federal Income Tax Consequences" in the
Prospectus do not purport to discuss all possible United States
federal income tax consequences of the purchase, ownership and
disposition of the Securities, such statements fairly and accurately
summarize the United States federal income tax consequences of the
purchase, ownership and disposition of the Securities in all material
respects.
The Trust's classification and taxation as a grantor trust depends
upon the Trust's continued compliance with, and operation under, the terms of
the Declaration (in the form filed as an exhibit to the Registration Statement).
This Firm will not review the Trust's compliance with these requirements on a
continuing basis. Accordingly, no assurance can be given that the Trust will
continue to satisfy the requirements under the Code for classification and
taxation as a grantor trust.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
caption "Legal Matters" in the Prospectus.
Very truly yours,
/s/ WALLER LANSDEN DORTCH & DAVIS,
A PROFESSIONAL LIMITED LIABILITY COMPANY
<PAGE> 1
EXHIBIT 12.1
BancorpSouth, Inc.
Calculation of ratio of earnings to fixed charges
<TABLE>
<CAPTION>
Six Months Ended
EXCLUDING INTEREST ON DEPOSITS June 30 Years Ended December 31
------------------ ----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
Earnings: -------- ------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Pretax income $ 35,518 $31,404 $ 64,883 $ 51,254 $ 43,560 $ 39,722 $ 31,922
Fixed charges 2,504 3,982 7,912 7,413 5,865 4,070 4,687
-------- ------- -------- -------- -------- -------- --------
Total $ 38,022 $35,386 $ 72,795 $ 58,667 $ 49,425 $ 43,792 $ 36,609
Fixed charges:
Interest, fed funds $ 839 $ 1,046 $ 1,954 $ 2,084 $ 1,338 $ 982 $ 999
Interest, other 1,665 2,852 5,805 5,208 4,421 2,982 3,582
Amortization of debt expense -- 84 153 121 106 106 106
-------- ------- -------- -------- -------- -------- --------
Total $ 2,504 $ 3,982 $ 7,912 $ 7,413 $ 5,865 $ 4,070 $ 4,687
Ratio of earnings to fixed charges
excluding interest on deposits 15.18 8.89 9.20 7.91 8.43 10.76 7.81
-------- ------- -------- -------- -------- -------- --------
Six Months Ended
INCLUDING INTEREST ON DEPOSITS June 30 Years Ended December 31
------------------ ----------------------------------------------------
1997 1996 1996 1995 1994 1993 1992
Earnings: ------------------ ----------------------------------------------------
Pretax income $ 35,518 $31,404 $ 64,883 $ 51,254 $ 43,560 $ 39,722 $ 31,922
Fixed charges 69,249 61,567 126,658 114,578 85,135 78,821 92,249
-------- ------- -------- -------- -------- -------- --------
Total $104,767 $92,971 $191,541 $165,832 $128,695 $118,543 $124,171
Fixed charges:
Interest on deposits $ 66,745 $57,585 $118,746 $107,165 $ 79,270 $ 74,751 $ 87,562
Interest, fed funds 839 1,046 1,954 2,084 1,338 982 999
Interest, other 1,665 2,852 5,805 5,208 4,421 2,982 3,582
Amortization of debt expense -- 84 153 121 106 106 106
-------- ------- -------- -------- -------- -------- --------
Total $ 69,249 $61,567 $126,658 $114,578 $ 85,135 $ 78,821 $ 92,249
Ratio of earnings to fixed charges
including interest on deposits 1.51 1.51 1.51 1.45 1.51 1.50 1.35
-------- ------- -------- -------- -------- -------- --------
</TABLE>
<PAGE> 1
EXHIBIT 23.1
ACCOUNTANT'S CONSENT
The Board of Directors
BancorpSouth, Inc.:
We consent to incorporation by reference in the registration statement on
Form S-3 of BancorpSouth, Inc. and BancorpSouth Capital Trust I of our report
dated January 24, 1997 on the consolidated balance sheets of BancorpSouth, Inc.
and subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of income, shareholders' equity, and cash flows for each of the years
in the three-year period ended December 31, 1996, which report appears in the
Annual Report of BancorpSouth, Inc. for the year ended December 31, 1996 and to
the reference to our firm under the heading "Experts" in the Prospectus.
KPMG Peat Marwick LLP
Memphis, Tennessee
August 25, 1997
<PAGE> 1
Exhibit 23.4
August 25, 1997
Board of Directors
BancorpSouth, Inc.
One Mississippi Plaza
Tupelo, Mississippi 38801
Ladies and Gentlemen:
We hereby consent to the reference to us under the caption "Legal
Matters" in the prospectus forming a part of the Registration Statement on Form
S-3 in connection with the registration under the Securities Act of 1933, as
amended, of up to $75,000,000 aggregate liquidation amount of the % Capital
Trust Pass-through Securities, Series A (the Capital Securities"), of
BancorpSouth Capital Trust I, a Delaware statutory business trust (the
"Trust"), the % Junior Subordinated Debt Securities of BancorpSouth, Inc., a
Mississippi corporation (the "Company"), and a Guarantee by the Company with
respect to the Capital Securities and the Trust's Common Securities.
Very Truly Yours,
/s/ Riley, Ford, Caldwell & Cork, P.A.
<PAGE> 1
EXHIBIT 25.1
- -----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF
1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)
------------
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification
no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
<TABLE>
<S> <C>
BANCORPSOUTH, INC. BANCORPSOUTH CAPITAL TRUST I
(Exact name of Registrant as specified in its charter) (Exact name of Registrant as specified in its charter)
MISSISSIPPI 64-0659571 DELAWARE APPLIED FOR
(State or other jurisdiction of (I.R.S. employer (State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.) incorporation or organization) Identification no.)
ONE MISSISSIPPI PLAZA ONE MISSISSIPPI PLAZA
TUPELO, MISSISSIPPI 38801 TUPELO, MISSISSIPPI 38801
(Address, including zip code (Address, including zip code of
of principal executive offices) principal executive offices)
__% CAPITAL SECURITIES, SERIES A OF BANCORPSOUTH CAPITAL TRUST I
__% JUNIOR SUBORDINATED DEBT SECURITIES OF BANCORPSOUTH, INC.
BANCORPSOUTH, INC. GUARANTEE WITH RESPECT TO CAPITAL SECURITIES AND COMMON SECURITIES
(Title of the securities)
</TABLE>
<PAGE> 2
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to
which it is subject.
NAME ADDRESS
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - (a) Restated Organization Certificate of Bankers
Trust Company dated August 7, 1990 - Incorporated
herein by reference to Exhibit 1 filed with Form
T-1 Statement, Registration No. 33-65171;
(b) Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June
21, 1995 - Incorporated herein by reference to
Exhibit 1 filed with Form T-1 Statement,
Registration No. 33-65171;
(c) Certificate of Amendment of the
Organization Certificate of Bankers Trust
Company dated March 20, 1996 - Incorporated
herein by reference to Exhibit 1 filed with Form
T-1 Statement, Registration No. 333-25843;
and
(d) Certificate of Amendment of the Organization
Certificate of Bankers Trust Company dated June
19, 1997.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise
corporate trust powers - Incorporated herein by
reference to Exhibit 2 filed with Form T-1
Statement, Registration No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as
amended on February 18, 1997 - Incorporated
herein by reference to Exhibit 4 filed with
Form T-1 Statement, Registration No. 333-24509-01.
-2-
<PAGE> 3
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
EXHIBIT 7 - The latest report of condition of Trust Company
dated as of March 31, 1997 - Incorporated herein
by reference to Exhibit 7 with Form T-1 Statement,
Registration No. 333-25843.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE> 4
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in The City of New York, and State of New York,
on the 11th day of August, 1997.
BANKERS TRUST COMPANY
By: Jason Krasilovsky
-----------------
Jason Krasilovsky
Assistant Treasurer
-4-
<PAGE> 5
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER
SECTION 8005 OF THE BANKING LAW," dated June 19, 1997, providing for an
increase in authorized capital stock from $1,601,666,670 consisting of
100,166,667 shares with a par value of $10 each designated as Common Stock and
600 shares with a par value of $1,000,000 each designated as Series Preferred
Stock to $2,001,666,670 consisting of 100,166,667 shares with a par value of
$10 each designated as Common Stock and 1,000 shares with a par value of
$1,000,000 each designated as Series Preferred Stock.
WITNESS, my hand and official seal of the Banking Department at the City
of New York,
this 27TH day of June in the Year of our Lord one
thousand nine hundred and NINETY-SEVEN.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE> 6
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby
certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended to
increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock
in conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital
stock shall be divided, the par value of the shares and the capital stock
outstanding, which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into One
Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 600 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars ($1,000,000)
each designated as Series Preferred Stock."
<PAGE> 7
5. The foregoing amendment of the organization certificate was authorized
by unanimous written consent signed by the holder of all outstanding shares
entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 19th
day of June, 1997.
James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
----------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an Assistant
Secretary of Bankers Trust Company, the corporation described in the foregoing
certificate; that she has read the foregoing certificate and knows the contents
thereof, and that the statements herein contained are true.
Lea Lahtinen
----------------------------
Lea Lahtinen
Sworn to before me this 19th
day of June, 1997.
Sandra L. West
----------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
