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EXHIBIT 4.8
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GUARANTEE AGREEMENT
Between
BANCORPSOUTH, INC.
(as Guarantor)
and
BANKERS TRUST COMPANY
(as Trustee)
Dated as of
[September ], 1997
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CROSS-REFERENCE TABLE*
Section of Section of
Trust Indenture Act Guarantee Agreement
of 1939, as amended -------------------
-------------------
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)
--------
*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.
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TABLE OF CONTENTS
Page
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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
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Page
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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
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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 Xxx
Xxxxxxxxxxx Xxxxx, Xxxxxx, XX 00000, 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
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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.
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"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.
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"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.
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"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
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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
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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
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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
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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
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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.
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(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
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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,
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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
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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
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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
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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.
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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.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Secretary
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with a copy (which shall not constitute notice) to:
XXXXXX XXXXXXX XXXXXX & XXXXX, PLLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, 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.
Xxx Xxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Facsimile No.:
Attention: Xxxxx X. Xxxxxxx, Secretary
with a copy to:
BANKERS TRUST COMPANY
Four Albany Street - 4th Floor
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Trust and Agency Group
Corporate Market Services
(c) if given to the Guarantee Trustee:
BANKERS TRUST COMPANY
Four Albany Street - 4th Floor
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
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.
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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.
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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:
