FISCAL AND PAYING AGENCY AGREEMENT Between TRUSTMARK NATIONAL BANK Issuer and THE BANK OF NEW YORK TRUST COMPANY, N.A. Fiscal and Paying Agent Dated as of December 13, 2006 5.673% Subordinated Notes Due December 15, 2016
Between
TRUSTMARK
NATIONAL BANK
Issuer
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.
Fiscal
and Paying Agent
______________
Dated
as
of December 13, 2006
______________
5.673%
Subordinated Notes Due December 15, 2016
______________
TABLE
OF
CONTENTS
______________
|
|
|
|
Page
|
|
ARTICLE
I
|
|||
|
APPOINTMENT
|
|||
| Section 1.1. | Appointment of Fiscal and Paying Agent |
1
|
|
|
ARTICLE
II
|
|||
|
THE
SUBORDINATED NOTES
|
|||
| Section 2.1. | Form of Subordinated Notes |
1
|
|
| Section 2.2. | Certifications of Authorized Representatives of the Bank |
2
|
|
| Section 2.3. | Completion, Authentication and Delivery |
2
|
|
| Section 2.4. | Denominations; Issuance of Certificated Securities |
3
|
|
| Section 2.5. | Proceeds of the Sale of Subordinated Notes |
4
|
|
| Section 2.6. | Security Register; Registration of Transfer and Exchange |
4
|
|
| Section 2.7. | Persons Deemed Owners |
5
|
|
| Section 2.8. | Cancellation of Unissued Global Subordinated Notes |
5
|
|
| Section 2.9. | Mutilated, Stolen or Destroyed Subordinated Notes |
5
|
|
| Section 2.10. | Redemption |
5
|
|
|
ARTICLE
III
|
|||
|
THE
FISCAL AND PAYING
AGENT
|
|||
| Section 3.1. | Payment of Subordinated Notes |
5
|
|
| Section 3.2. | Information Regarding Amounts Payable |
6
|
|
| Section 3.3. | Deposit of Funds |
6
|
|
| Section 3.4. | Disposition of Funds Held for Payment of Subordinated Notes |
6
|
|
| Section 3.5. | Additional Responsibilities |
7
|
|
| Section 3.6. | Miscellaneous |
7
|
|
|
|
|||
|
ARTICLE
IV
|
|||
|
LIABILITY
AND INDEMNIFICATION
|
|||
| Section 4.1. | Liability |
8
|
|
| Section 4.2. | Indemnification |
8
|
|
i
|
ARTICLE
V
|
|||
|
RESIGNATION
OR REMOVAL
OF
FISCAL AND PAYING AGENT
|
|||
| Section 5.1. | Resignation or Removal |
9
|
|
| Section 5.2. | Successor Fiscal and Paying Agent |
9
|
|
| Section 5.3. | Successor by Merger, Etc. |
9
|
|
|
ARTICLE
VI
|
|||
|
MISCELLANEOUS
|
|||
| Section 6.1. | Compensation of the Fiscal and Paying Agent |
10
|
|
| Section 6.2. | Reliance on Opinions of Counsel or Officer’s Certificate |
10
|
|
| Section 6.3. | Subordinated Notes Held by Fiscal and Paying Agent |
10
|
|
| Section 6.4. | Notices |
10
|
|
| Section 6.5. | Parties |
11
|
|
| Section 6.6. | Governing Law |
11
|
|
| Section 6.7. | Separability |
11
|
|
| Section 6.8. | Effect of Headings |
11
|
|
| Section 6.9. | Amendments |
11
|
|
| Section 6.10. | Events of Default; Rescission |
12
|
|
| Section 6.11. | Actions Due on Saturdays, Sundays and Holidays |
13
|
|
| Section 6.12. | Agreement To Pay Attorneys’ Fees and Other Expenses |
13
|
|
| Section 6.13. | Survival |
13
|
|
| Section 6.14. | No Implied Waivers |
13
|
|
| Section 6.15. | Counterparts |
13
|
|
| Section 6.16. | Term |
14
|
|
| Section 6.17. | Complete Agreement |
14
|
|
| Section 6.18. | Reopenings |
14
|
|
EXHIBIT
A
— Form of Global Certificate
ii
This
FISCAL AND PAYING AGENCY AGREEMENT is entered into as of December 13, 2006
by
and between Trustmark National Bank (the “Bank”), and The Bank of New York Trust
Company, N.A., as Fiscal and Paying Agent (the “Fiscal and Paying
Agent”).
WITNESSETH:
WHEREAS,
the Bank proposes to issue and sell its 5.673% Subordinated Notes Due December
15, 2016 (the “Subordinated Notes”) in an initial aggregate principal amount of
$50,000,000 and in minimum denominations of $250,000 to certain institutional
accredited
investors in an offering that is exempt from registration with the Securities
and Exchange Commission and will be made pursuant to Section 16.6 of the
Securities Offering Regulations (12 C.F.R. § 16.6) of the Office of the
Comptroller of the Currency (the “Comptroller”), and
WHEREAS,
the Bank desires to appoint the Fiscal and Paying Agent as fiscal and paying
agent of the Bank with respect to the preparation, authentication, delivery,
registration and payment of the Subordinated Notes;
NOW,
THEREFORE, in consideration of the mutual promises, covenants, conditions and
agreements set forth herein, the parties hereby agree as follows:
ARTICLE
I
APPOINTMENT
Section
1.1. Appointment
of Fiscal and Paying Agent.
The
Fiscal and Paying Agent is hereby appointed as fiscal and paying agent for
the
Subordinated Notes on the terms and conditions specified in this Agreement
and
the Subordinated Notes, and the Fiscal and Paying Agent hereby accepts such
appointment. The Bank hereby appoints the Fiscal and Paying Agent as registrar
for the Subordinated Notes.
ARTICLE
II
THE
SUBORDINATED NOTES
Section
2.1. Form
of Subordinated Notes.
The
Subordinated Notes will be represented by one or more global certificates,
each
such certificate hereinafter called a “Global Subordinated Note.” All Global
Subordinated Notes shall be registered in the name of The Depository Trust
Company (“DTC”), as depository, or its nominee or a successor depository or
nominee. All Global Subordinated Notes shall be in substantially the form
attached hereto as Exhibit A and may have such appropriate insertions,
omissions, variations or substitutions as are required or permitted by, and
not
inconsistent with, this Agreement, and may also have such letters, numbers
or
other marks of identification and such legends or endorsements placed thereon
as
may be required to comply with any applicable law or with any applicable rules
or regulations made pursuant thereto or with the rules or regulations of any
securities exchange or governmental agency or as may, consistently herewith,
be
determined by the officers of the Bank executing such Global Subordinated Notes,
as evidenced by their execution thereof. Beneficial interests in the Global
Subordinated Notes will be shown on, and transfers thereof will be effected
only
through, records maintained by DTC or its nominee and its
participants.
Section
2.2. Certifications
of Authorized Representatives of the Bank.
(a)
Any instruction given by the Bank to the Fiscal and Paying Agent under this
Agreement shall be in the form of an Officer’s Certificate. For the purposes of
this Agreement, “Officer’s Certificate” means a certificate signed by an
Authorized Representative (defined below) and delivered to the Fiscal and Paying
Agent.
(b) On
an
annual basis, the Bank shall furnish the Fiscal and Paying Agent with an
Officer’s Certificate of the Bank certifying the incumbency and specimen
signatures of the representatives of the Bank who are authorized to instruct
the
Fiscal and Paying Agent regarding the completion and delivery of the Global
Subordinated Notes and take other actions hereunder (each an “Authorized
Representative”). The Bank shall promptly provide the Fiscal and Paying Agent
with an interim Officer’s Certificate of the Bank indicating any changes in the
Bank’s Authorized Representatives and certifying the incumbency and specimen
signatures of each Authorized Representative and any such change shall become
effective on the Business Day (as hereinafter defined) on which the Fiscal
and
Paying Agent receives notice thereof.
Section
2.3. Completion,
Authentication and Delivery.
(a)
All Subordinated Notes shall be issued and delivered in accordance with the
terms of this Agreement, the Global Subordinated Notes and the Letter of
Representations from the Bank and the Fiscal and Paying Agent to DTC dated
December 13, 2006, pursuant to an authentication order (“Authentication Order”).
The Authentication Order shall be given by an Authorized Representative by
telex, telecopy or other means acceptable to the Fiscal and Paying Agent. Upon
receipt of the Authentication Order, the Fiscal and Paying Agent
shall:
(i) complete
a Global Subordinated Note or Global Subordinated Notes representing the
Subordinated Notes in accordance with such order;
(ii) manually
authenticate such Global Subordinated Note or Global Subordinated Notes by
any
one of the officers of the Fiscal and Paying Agent duly authorized and
designated by it for such purpose; and
(iii) deliver
such Global Subordinated Note or Global Subordinated Notes to DTC or its
nominees pursuant to the Authentication Order.
(b) Each
Subordinated Note shall bear an original issue date which shall remain the
same
for all Subordinated Notes subsequently issued upon transfer, exchange or
substitution of such original Subordinated Note regardless of the date of
issuance of any such subsequently issued Subordinated Note.
(c) All
instructions given by the Bank pursuant to this Section 2.3 must be
received by the Fiscal and Paying Agent by 11 a.m., Central Standard Time,
on the Business Day preceding the original issue date for the Global
Subordinated Notes. For all purposes under this Agreement (except as indicated
in Sections 3.1(b) and 6.11), the term “Business Day” shall mean any day that is
not a Saturday or Sunday and that, in the City of New York, New York is not
a
day on which banking institutions are generally authorized or required by law
to
be closed. The Fiscal and Paying Agent shall not be required to perform any
duties on any day that is not a Business Day.
2
(d) The
Fiscal and Paying Agent shall have no responsibility to the Bank to determine
by
whom or by what means a facsimile signature of the Bank may have been affixed
on
the Global Subordinated Notes, or whether a signature of an Authorized
Representative is genuine, if such signature resembles the specimen signature
of
such Authorized Representative on the Officer’s Certificate delivered pursuant
to Section 2.2(b). The Fiscal and Paying Agent shall incur no liability to
the Bank in acting or refraining from taking any action hereunder upon
instructions contemplated hereby which the recipient thereof believed in good
faith to have been given by an Authorized Representative. In the event a
discrepancy exists between the instructions as originally received by the Fiscal
and Paying Agent and any subsequent instruction relating to the same subject
matter, the original instructions will be deemed controlling if action has
already been taken in reliance thereon, provided that the Fiscal and Paying
Agent gives notice to the Bank of such discrepancy promptly upon the receipt
of
such subsequent instructions.
(e) Each
instruction given to the Fiscal and Paying Agent in accordance with this
Section 2.3 shall constitute a representation and warranty to the Fiscal
and Paying Agent by the Bank that (i) the issuance and delivery of the
Global
Subordinated Notes to which the instruction relates have been duly and validly
authorized by the Bank, (ii) such Global Subordinated Notes, when
completed, countersigned, authenticated and delivered pursuant hereto, will
constitute valid and legally binding obligations of the Bank and (iii) the
Fiscal and Paying Agent’s appointment to act for the Bank hereunder has been
duly authorized by all necessary corporate action of the Bank.
(f) The
Bank
further represents and warrants to the Fiscal and Paying Agent that the Bank
is
free to enter into this Agreement and to perform the terms hereof.
Section
2.4. Denominations;
Issuance of Certificated Securities.
(a)
Except as provided in paragraph (b) of this Section 2.4, the Subordinated
Notes shall be issuable only in book-entry form, without coupons, in
denominations of $250,000 and any amount in excess thereof which is an integral
multiple of $1,000.
(b) If
at any
time (i) DTC notifies the Bank in writing that it is unwilling or unable to
act as depository for the Subordinated Notes or if DTC ceases to be a clearing
agency registered pursuant to Section 17A of the Securities Exchange Act of
1934, as amended, and a successor depository is not appointed by the Bank within
90 days after the effective date of DTC’s ceasing to act as depository for the
Subordinated Notes, (ii) the Bank, at its option, notifies the Fiscal and
Paying Agent in writing that it elects to cause the issuance of Subordinated
Notes in definitive form or (iii) any event shall have happened and be
continuing which, after notice or lapse of time, or both, would constitute
an
Event of Default as defined in the Subordinated Notes, the Bank will execute,
and the Fiscal and Paying Agent will, upon the execution of the then standard
form of the Fiscal and Paying Agent’s agreement for certificated securities and
upon receipt of instructions in writing from the Bank, authenticate and deliver
Subordinated Notes of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Subordinated Notes
then outstanding in exchange for such Global Subordinated Notes. Any such
certificated Subordinated Notes will be issued in fully registered form to
the
persons identified by DTC as the beneficial owners thereof, without coupons,
in
denominations of $250,000 or any amount in excess thereof which is an integral
multiple of $1,000. Such certificated Subordinated Notes may not subsequently
be
exchanged by a holder for Subordinated Notes in denominations of less than
$250,000. If Subordinated Notes are issued in definitive form hereunder, payment
and other terms related to such Subordinated Notes will be as set forth on
the
face thereof.
3
Section
2.5. Proceeds
of the Sale of Subordinated Notes.
Any
funds representing proceeds from the offering and sale of the Subordinated
Notes
that are received by the Fiscal and Paying Agent shall be held in trust by
the
Fiscal and Paying Agent for the benefit of the Bank and promptly credited to
one
or more accounts designated in writing by the Bank.
Section
2.6. Security
Register; Registration of Transfer and Exchange.
(a)
The Fiscal and Paying Agent shall, so long as any of the Subordinated Notes
remain outstanding, maintain all records as may be customary, including all
forms of transfer for the Subordinated Notes and shall: (i) keep at its
corporate trust office or the office of its agent in The City of New York,
a
register (the “Security Register”) in such form as the Fiscal and Paying Agent
may determine, in which, subject to such reasonable requirements as it may
prescribe, it shall provide for the registration of the Global Subordinated
Notes and of any exchanges or transfers thereof and (ii) maintain records
showing for each outstanding Subordinated Note issued in definitive form under
Section 2.4(b), the principal amount, maturity date, interest rate and
other terms thereof; the date of original issue and all subsequent transfers
and
consolidations or exchanges.
(b) All
Subordinated Notes presented for transfer shall be duly endorsed or be
accompanied by a written instrument of transfer with such evidence of due
authorization and guarantee of signature as may reasonably be required by the
Fiscal and Paying Agent. Upon receipt by the Bank of a Subordinated Note
submitted for transfer, the Bank will execute, and
the
Fiscal and Paying Agent will countersign and authenticate, one or more new
Subordinated Notes of like tenor and terms in an aggregate principal amount
equal to the principal amount of the Subordinated Note presented for transfer
in
accordance with the transfer instructions accompanying same. The Fiscal and
Paying Agent shall date its signature on the date it signs such Subordinated
Notes. No service charge (other than any cost of delivery) shall be imposed
by
the Fiscal or Paying Agent for any exchange or registration of transfer of
a
Subordinated Note but the Bank or Fiscal and Paying Agent may require the
payment of a sum sufficient to cover any stamp or other tax or governmental
charge that may be imposed in connection therewith or presentation of evidence
that such tax or charge has been paid. Notwithstanding anything to the contrary
set forth herein, no registration or transfer shall be made on or after the
fifteenth day immediately preceding the Date of Maturity (as defined in the
Subordinated Note).
(c) Notwithstanding
anything in this Agreement to the contrary, unless Subordinated Notes are issued
in definitive form under Section 2.4(b) hereof, beneficial ownership of the
Subordinated Notes will only be shown on, and transfers thereof will be effected
only through, records maintained by DTC, its nominees or its participants (as
defined in the Offering Circular). The Fiscal and Paying Agent shall have no
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in a Global
Subordinated Note or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests, and it shall be fully protected
in acting or refraining from acting on any such information provided by DTC
with
respect thereto.
4
Section
2.7. Persons
Deemed Owners.
Prior
to due presentment of a Subordinated Note for registration or transfer, the
Bank, the Fiscal and Paying Agent and any agent of the Bank or the Fiscal and
Paying Agent may treat the person in whose name such Subordinated Note is
registered as the owner of such Subordinated Note for the purpose of receiving
payments of principal and interest, if any, and for all other purposes
whatsoever, whether or not such Subordinated Note be overdue, and neither the
Bank nor the Fiscal and Paying Agent shall be affected by notice to the
contrary.
Section
2.8. Cancellation
of Subordinated Notes.
Any
Subordinated Note paid in accordance with this Agreement, and each Subordinated
Note in lieu of which a replacement Subordinated Note or Subordinated Notes
are
authenticated and delivered in accordance with Section 2.6 or 2.9 hereof, shall
be canceled and disposed of in accordance with the Fiscal and Paying Agent’s
policy for disposal. The Fiscal and Paying Agent shall upon written request
furnish the Bank with certificates of disposal of such Subordinated
Note(s).
Section
2.9. Mutilated,
Stolen or Destroyed Subordinated Notes.
In case
a Subordinated Note shall at any time become mutilated, destroyed, lost or
stolen and such Subordinated Note or evidence satisfactory to the Bank or the
Fiscal and Paying Agent of the loss, theft, or destruction thereof (together
with indemnity satisfactory to the Bank and the Fiscal and Paying Agent and
such
other documents of proof as may be required by them) shall be delivered to
the
Bank, a new Subordinated Note of like tenor will be issued by the Bank in
exchange for the Subordinated Note so mutilated, or in lieu of the Subordinated
Note so destroyed or lost or stolen. The Fiscal and Paying Agent will
authenticate any such substituted Subordinated Note and deliver the same on
the
written request or authorization of an Authorized Representative. All expenses
and reasonable charges associated with procuring the indemnity referred to
above
and with the preparation, authentication and delivery of a new Subordinated
Note
shall be borne by the holder of the Subordinated Note so mutilated, destroyed,
lost or stolen. If any Subordinated Note which has matured or is about to mature
shall become mutilated, destroyed, lost or stolen, the Bank may, instead of
issuing a substitute Subordinated Note, pay or authorize the payment of the
same
(without surrender thereof except in the case of a mutilated Subordinated Note)
upon compliance by the holder thereof with the provisions of this
Section 2.9.
Section
2.10. Redemption.
The
Subordinated Notes may not be redeemed prior to the Date of Maturity and no
sinking fund will be provided for the Subordinated Notes.
ARTICLE
III
THE
FISCAL AND PAYING AGENT
Section
3.1. Payment
of Subordinated Notes.
(a)
Payments of principal, premium, if any, and interest payable at the Date of
Maturity will be made by wire transfer in immediately available funds to the
bank accounts in the United States designated by the holders of the Subordinated
Notes, provided that the Subordinated Notes are presented to the Fiscal and
Paying Agent at its corporate trust office in The City of New York (or at such
other place or places as the Fiscal and Paying Agent shall designate by notice
to the holders of the Subordinated Notes) in time for the Fiscal and Paying
Agent to make such payments in such funds in accordance with its normal
procedures.
5
(b) Payments
of interest (other than interest payable at Date of Maturity) will be made
on
June 15 and December 15 of each year, commencing on June 15, 2007 to the holders
of the Subordinated Notes entitled thereto as of the close of business on June
1
and December 1, as the case may be (whether or not such day is a “Business Day”
(as that term is defined in the Form of Global Subordinated Note attached as
Exhibit A hereto)) (each such date, a “Regular Record Date” next preceding each
such interest payment date, by wire transfer of immediately available funds
to
the bank accounts in the United States designated by such holders in a written
notice received by the Fiscal and Paying Agent not later than the applicable
Regular Record Date.
(c) The
Fiscal and Paying Agent is authorized and will pay any Subordinated Note duly
presented for payment as provided in paragraph (a) of this Section 3.1
as long as the Global Subordinated Note representing such Subordinated Note
has
been authenticated by one of the Fiscal and Paying Agent’s officers who was duly
designated and authorized for such purpose at the time of such authentication,
notwithstanding that said officer is no longer so designated or the authority
of
said officer has been terminated between the time of execution and the time
of
payment.
(d) The
Fiscal and Paying Agent shall have no obligation to use its own funds for any
payment of principal, premium, if any, or interest on the Subordinated Notes
or
for any other purpose pursuant to this Agreement.
Section
3.2. Information
Regarding Amounts Payable.
The
Fiscal and Paying Agent shall, as soon as practicable after each record date
for
the payment of interest on the Subordinated Notes (other than interest payable
on the Date of Maturity), but not later than five days preceding the related
interest payment date, notify the Bank of the amount of interest to be paid
on
the Subordinated Notes on the related interest payment date.
Section
3.3. Deposit
of Funds.
The
Bank shall deposit with the Fiscal and Paying Agent by 10 a.m., New York
City time (i) on each interest payment date (other than the Date of
Maturity) an amount in immediately available funds sufficient to pay the
interest due on the Subordinated Notes on such date and (ii) on the Date of
Maturity an amount in immediately available funds sufficient to pay the full
principal amount of the Subordinated Notes, the premium due thereon, if any,
and
all unpaid interest accrued thereon to the Date of Maturity.
Section
3.4. Disposition
of Funds Held for Payment of Subordinated Notes.
(a)
In acting under this Agreement and in connection with the Subordinated Notes,
the Fiscal and Paying Agent is acting solely as agent of the Bank and does
not
have any fiduciary duties to, and does not assume any obligation or relationship
of agency or trust with, the holders of the Subordinated Notes or the beneficial
owners of the Global Subordinated Notes, except that, subject to the provisions
of subsection (b) of this Section 3.4, all money deposited with the
Fiscal and Paying Agent pursuant to Section 3.3 shall be held by it on
behalf of the holders of the Subordinated Notes and the beneficial holders
of
the Global Subordinated Notes entitled thereto until such money is disbursed
to
the holders of the Subordinated
Notes (subject to escheat and other unclaimed property laws) in accordance
with
the provisions of the Subordinated Notes and this Agreement or otherwise. Money
deposited with the Fiscal and Paying Agent need not be segregated from other
funds of the Fiscal and Paying Agent, except to the extent required by
law.
6
(b) Subject
to applicable escheat laws, any money deposited with the Fiscal and Paying
Agent
for the payment of the principal of, premium, if any, or interest on any
Subordinated Note that remains unclaimed for two years after such principal,
premium, if any, or interest has become due and payable shall be remitted by
the
Fiscal and Paying Agent to the Bank and the holders of the Subordinated Notes
entitled thereto shall thereafter, as unsecured general creditors, look only
to
the Bank for payment thereof as successor fiscal and paying agent, and all
liability of the Fiscal and Paying Agent with respect to such money shall
thereupon cease.
Section
3.5. Additional
Responsibilities.
If the
Bank shall ask the Fiscal and Paying Agent to perform any duties not
specifically set forth in this Agreement as duties of the Fiscal and Paying
Agent (the “Additional Responsibilities”) and the Fiscal and Paying Agent
chooses to perform such Additional Responsibilities, the Fiscal and Paying
Agent
shall be held to the same standard of care and shall be entitled to all the
protective provisions (including, but not limited to, indemnification) set
forth
herein with respect to such Additional Responsibilities unless the Fiscal and
Paying Agent has entered into a separate written agreement which specifically
addresses the standard of care with respect to such Additional
Responsibilities.
Section
3.6. Miscellaneous.
Notwithstanding anything to the contrary herein:
(a) in
paying
principal, premium, if any, and interest on the Subordinated Notes hereunder,
the Fiscal and Paying Agent shall be acting as a conduit and shall not be paying
such principal, premium, if any, or interest for its own account. In the absence
of written notice from the Bank to the contrary, the Fiscal and Paying Agent
shall be entitled to assume that any Subordinated Note presented to it, or
deemed presented to it, for payment, is entitled to be so paid;
(b) the
Fiscal and Paying Agent shall not be required to invest any moneys delivered
to
it pursuant to this Agreement and shall have no liability for interest on any
moneys received or held by it hereunder;
(c) the
Fiscal and Paying Agent shall not be responsible for the accuracy of any recital
of any party (other than the Fiscal and Paying Agent) that is stated herein
or
in the Subordinated Notes or in any offering materials relating thereto and
makes no representations as to the validity or enforceability of the
Subordinated Notes and shall incur no responsibility in respect
thereto;
(d) the
Fiscal and Paying Agent shall be protected in acting or refraining from acting
upon any notice, order, requisition, request, consent, certificate, order,
opinion (including an opinion of counsel, Officer’s Certificate or both),
affidavit, letter, telegram or other paper or document deemed by it in good
faith to be genuine and correct and to have been signed or sent by the proper
person or persons; and
(e) any
action taken by the Fiscal and Paying Agent pursuant to this Agreement upon
the
request or authority or consent of any person who at the time of making such
request or giving such authority or consent is the holder of a Subordinated
Note
shall be conclusive and binding upon (i) all future holders of the same
Subordinated Note and any Subordinated Note issued in exchange therefor or
in
place thereof, (ii) all beneficial owners of the same Subordinated Note and
(iii) all holders of the same Subordinated Note issued in definitive form
pursuant to Section 2.4(b) hereof.
7
ARTICLE
IV
LIABILITY
AND INDEMNIFICATION
Section
4.1. Liability.
(a)
The duties and obligations of the Fiscal and Paying Agent are ministerial in
nature and such duties and obligations shall be determined solely by the express
provisions of this Agreement. The Fiscal and Paying Agent shall not be liable
to
the Bank, the holder of Subordinated Notes or the beneficial owners of the
Global Subordinated Notes except for the performance of such duties and
obligations as are specifically set forth herein and no implied covenants shall
be read into this Agreement against it.
(b) The
Fiscal and Paying Agent may refuse to perform any duty or exercise any right
or
power hereunder unless it receives indemnity satisfactory to it against any
related loss, liability or expense. The Fiscal and Paying Agent shall not be
required to ascertain whether any action taken by the Bank hereunder, including
(i) the offering and sale of Subordinated Notes, (ii) the issuance of
such Subordinated Notes or (iii) any amendment or termination of this
Agreement, has been duly authorized by the Bank or is in compliance with any
other agreement to which the Bank is a party (whether or not the Fiscal and
Paying Agent is also a party to such other agreements) or any law or
governmental regulation to which the Bank is subject. The Fiscal and Paying
Agent shall have no responsibility in the case of any default by the Bank in
the
performance of the covenants contained herein or in the Subordinated
Notes.
(c) The
Fiscal and Paying Agent shall not have any liability hereunder except in the
case of its gross negligence, willful misconduct or failure to perform in
accordance with this Agreement. Notwithstanding anything to the contrary herein,
the Fiscal and Paying Agent shall not be liable for any losses, damages or
expenses resulting from the willful misconduct or negligence of any of its
agents, correspondents, attorneys or receivers as long as the Fiscal and Paying
Agent exercised due care in connection with the appointment
thereof.
Section
4.2. Indemnification.
The
Bank agrees to indemnify and hold harmless the Fiscal and Paying Agent, its
officers, directors, employees and agents from and against all losses,
liabilities, obligations, claims, damages, costs and expenses of any kind or
nature whatsoever (including, without limitation, reasonable legal fees and
expenses) relating to or arising out of the performance of its duties under
this
Agreement, except to the extent they are caused by the gross negligence or
willful misconduct of the Fiscal and Paying Agent or failure of the Fiscal
and
Paying Agent to perform in accordance with this Agreement. In the event of
resignation or removal of the Fiscal and Paying Agent, any successor to the
performance of the obligations of the Fiscal and Paying Agent as specified
in
this Agreement shall be entitled to rely upon this indemnity and said successor,
the Bank or DTC shall not be entitled to a separate indemnity from the Fiscal
and Paying Agent. These indemnification obligations shall survive the
termination of this Agreement, including any termination pursuant to any
applicable federal or state bankruptcy law, to the extent enforceable under
applicable law, and shall survive the resignation or removal of the Fiscal
and
Paying Agent while remaining applicable to any action taken or omitted by the
Fiscal and Paying Agent while acting pursuant to this Agreement.
8
ARTICLE
V
RESIGNATION
OR REMOVAL OF FISCAL AND PAYING AGENT
Section
5.1. Resignation
or Removal.
The
Fiscal and Paying Agent may at any time resign from its duties hereunder by
giving written notice of resignation to the Bank specifying the date on which
such resignation shall become effective; provided, however, that such date
shall
not be less than 30 Business Days after such notice is given to the Bank. The
Bank may at any time remove the Fiscal and Paying Agent by giving written notice
of removal to the Fiscal and Paying Agent specifying the date on which such
removal shall be effective; provided, however, that such date shall be not
less
than 30 Business Days after such notice is given to the Fiscal and Paying Agent.
Any termination or resignation hereunder
shall not affect the Fiscal and Paying Agent’s right to the payment of fees
earned or charges incurred through the effective date of such termination or
resignation, as the case may be.
Section
5.2. Successor
Fiscal and Paying Agent.
Upon
the effective date of such resignation or removal, the Fiscal and Paying Agent
shall deliver any money then held by it pursuant to Section 3.4(a) to the
successor appointed by the Bank to serve as fiscal and paying agent for the
Subordinated Notes and all liability of the Fiscal and Paying Agent with respect
to such money shall thereupon cease. The Fiscal and Paying Agent shall also
provide such successor with a copy of its records relating to the Subordinated
Notes as such successor shall reasonably request. However, the Fiscal and Paying
Agent may retain copies of any records turned over for archival purposes. If
such successor has not been appointed by the effective date of such resignation
or removal, the Fiscal and Paying Agent shall pay such money and deliver such
records to the Bank with the same effect as though such payment were made
pursuant to Section 3.4(b); it being understood and agreed that the Bank
may undertake to perform any of the functions of the Fiscal and Paying Agent.
The delivery, transfer and assignment of such moneys and records by the Fiscal
and Paying Agent to its successor or the Bank, as the case may be, shall be
sufficient, without the requirement of any additional act or the requirement
of
any indemnity to be given by the Fiscal and Paying Agent, to relieve the Fiscal
and Paying Agent of all further responsibility for the exercise of the rights
or
the performance of the obligations vested in the Fiscal and Paying Agent
pursuant to this Agreement. The Bank shall notify, or cause the Fiscal and
Paying Agent to notify, each holder of Global Subordinated Notes of the
appointment of any successor Fiscal and Paying Agent or the undertaking of
the
Bank to perform the functions of the Fiscal and Paying Agent.
Section
5.3. Successor
by Merger, Etc.
Any
corporation or association into which the Fiscal and Paying Agent may be
converted or merged, or with which it may be consolidated, or to which it may
sell or transfer its corporate trust and agency business as a whole, or any
corporation or association resulting from any such conversion, sale, merger,
consolidation or transfer to which it is a party, shall be and become successor
Fiscal and Paying Agent hereunder and shall be invested with all of the rights,
powers, trusts, duties and obligations of the Fiscal and Paying Agent hereunder,
without the execution or filing of any instrument or any further act. The Fiscal
and Paying Agent shall provide notice to the Bank of any such conversion,
merger, consolidation, sale or transfer as soon as practicable after the Fiscal
and Paying Agent obtains knowledge that such event will occur or has
occurred.
9
ARTICLE
VI
MISCELLANEOUS
Section
6.1. Compensation
of the Fiscal and Paying Agent.
The
Bank agrees to pay the Fiscal and Paying Agent compensation for all services
rendered by the Fiscal and Paying Agent hereunder in such amounts as set forth
in the Fee Schedule attached hereto and payable at such times as the Bank and
the Fiscal and Paying Agent may agree to and to promptly reimburse the Fiscal
and Paying Agent for all reasonable out-of-pocket expenses (including reasonable
attorneys fees), disbursements and advances incurred or made by the Fiscal
and
Paying Agent in the performance of its duties hereunder. The obligation of
the
Bank pursuant to this Section 6.1 shall survive the termination of this
Agreement, including any termination pursuant to any federal or state bankruptcy
law, to the extent enforceable under applicable law.
Section
6.2. Reliance
on Opinions of Counsel or Officer’s Certificate.
(a)
The Fiscal and Paying Agent may, at any time, request and receive an opinion
of
its counsel concerning its duties hereunder. The Fiscal and Paying Agent shall
be free to act upon the advice contained in such opinion and shall have no
liability to the Bank, the holders of the Subordinated Notes or the beneficial
owners of the Global Subordinated Notes in respect of an action taken or omitted
by the Fiscal and Paying Agent in good faith in reliance on a written opinion
of
such counsel.
(b) The
Fiscal and Paying Agent shall have no liability to the Bank, the holders of
the
Subordinated Notes or the beneficial owners of the Global Subordinated Notes
in
respect of an action taken or omitted by the Fiscal and Paying Agent in good
faith in reliance on an Officer’s Certificate.
Section
6.3. Subordinated
Notes Held by Fiscal and Paying Agent.
The
Fiscal and Paying Agent, in its individual or other capacity, may become a
purchaser, holder, transferor, pledgee or may otherwise own, hold or transfer
any beneficial interest in any Subordinated Notes and may commence or join
in
any action which a beneficial owner of a Subordinated Note is entitled to take
without any conflict with its responsibilities pursuant to this
Agreement.
Section
6.4. Notices.
Notices
and other communications hereunder shall (except to the extent otherwise
expressly provided) be in writing or given via electronic media and shall be
addressed as follows, or to such other addresses as the parties hereto shall
specify from time to time.
10
|
If to the Bank:
|
Trustmark National Bank
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxxx
Xxxxxx, Chief Investment Officer
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
|
| If to the Fiscal | |
|
and Paying Agent:
|
The Bank of New York Trust Company, N.A.
Corporate Trust Department
Plaza of the Americas
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx
X. Xxxxxxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
|
All
notices shall be deemed given when received. All notices required to be given
to
the holders of Subordinated Notes shall be in writing and sent by first-class
mail to such holders at their respective addresses shown in the Security
Register.
Section
6.5. Parties.
Except
for rights arising under Section 3.4(a), this Agreement is solely for the
benefit of the parties hereto and their successors and assigns and nothing
herein, express or implied, shall grant any benefit or any legal or equitable
right, remedy or claim under this Agreement to any other person including,
without limitation, any holder of a Subordinated Note or any beneficial owner
of
a Global Subordinated Note.
Section
6.6. Governing
Law.
THIS
AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
Section
6.7. Separability.
In case
any provision in this Agreement shall be held to 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
6.8. Effect
of Headings.
The
article and section headings herein are for convenience of reference only and
shall not affect the construction hereof.
Section
6.9. Amendments.
(a)
Without the consent of the holders of the Subordinated Notes, the Bank and
the
Fiscal and Paying Agent, at any time and from time to time, may amend the terms
of this Agreement, including amendments to the terms of the Subordinated Notes
designed to cure ambiguities, defects or inconsistencies; except, however,
that
the consent of all holders of Subordinated Notes is required in order
to:
11
(i) change
the Date of Maturity of any Subordinated Note, extend the time of payment on
any
overdue principal amount, change the coin or currency in which any Subordinated
Note or the interest thereon is payable, change the definition of interest
payment date contained in the Subordinated Notes, reduce the principal amount
of
or the rate of interest on any Subordinated Note, change the method of payment
specified in the Subordinated Notes to other than wire transfer in immediately
available funds, impair the right of a holder of the Subordinated Notes to
institute suit for the enforcement of any payments of principal of or interest
or other amounts on such Subordinated Notes or modify the subordination
provisions of the Subordinated Notes in any manner adverse to the holders
thereof;
(ii) reduce
the percentage in principal amount of Subordinated Notes outstanding, the
consent of whose holders is required for any such amendment to this Agreement
or
the Subordinated Notes or;
(iii) modify
any of the provisions of this Section 6.9, except to increase any such
percentage or to provide that certain other provisions of this Agreement or
the
Subordinated Notes cannot be modified or waived without the consent of the
holder of each outstanding Subordinated Note.
If
the
consent of the holders of the Subordinated Notes is required hereunder, the
Bank
and the Fiscal and Paying Agent shall request such consent and will deliver
to
each holder of Subordinated Notes an explanation of such amendment and the
terms
thereof. It shall not be necessary under this Section 6.9 for the holders
of the Subordinated Notes to approve the precise form of any proposed
amendment.
(b) Upon
the
execution of any amendment to this Agreement under this Section 6.9 by the
Bank and the Fiscal and Paying Agent, this Agreement shall be modified in
accordance therewith, such amendment shall form a part of this Agreement for
all
purposes and each holder of Subordinated Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby. The Bank shall
promptly transmit by mail to each holder of Subordinated Notes a notice setting
forth the general terms of any amendment to this Agreement executed under this
Section 6.9.
(c) Before
entering into any amendment to this Agreement, the Fiscal and Paying Agent
shall
receive and be fully protected in relying upon an Officer’s Certificate and an
opinion from counsel to the Bank that such amendment has been duly authorized,
executed and delivered by the Bank and that all conditions precedent in
connection with the execution of such amendment have been
satisfied.
Section
6.10. Events
of Default; Rescission.
(a)
Upon the occurrence of an Event of Default (as defined in the Subordinated
Notes) or the curing of an Event of Default, the Bank will promptly give the
Fiscal and Paying Agent written notice thereof, and the Fiscal and Paying Agent
will promptly notify, by first-class mail, postage prepaid, the holders of
the
Subordinated Notes thereof. If an Event of Default shall occur and be
continuing, the holder of a Subordinated Note, upon written notice to the Bank
and the Fiscal and Paying Agent, may, at its option, declare such Subordinated
Note to be, and, on the day such declaration shall have been delivered to the
Bank and the Fiscal and Paying Agent, unless the Fiscal and Paying Agent shall
have received written notice from the Bank that all Events of Default have
been
cured by the Bank prior to receipt by the Fiscal and Paying Agent of such
declaration, such Subordinated Note shall become, immediately due and payable
at
its principal amount, together with accrued
and unpaid interest thereon to the date of payment; provided,
however,
that to the extent then required under or pursuant to applicable regulations
of
the Comptroller (including, without limitation, 12 C.F.R. § 5.47) no accelerated
payment may be made without the prior written approval of the
Comptroller.
12
(b) At
any
time after the delivery to the Fiscal and Paying Agent of a declaration of
an
Event of Default and acceleration pursuant to the provisions of a Subordinated
Note, the holder a Subordinated Note, by written notice evidencing its ownership
interest to the Bank and the Fiscal and Paying Agent, may rescind and annul
such
declaration of an Event of Default and its consequences with respect to such
Subordinated Note. No such rescission shall affect any subsequent Event of
Default or impair any right consequent thereto.
(c) The
holder of a Subordinated Note may waive any past Event of Default and its
consequences with respect to such Subordinated Note. No such waiver shall affect
any subsequent Event of Default or impair any right consequent
thereto.
Section
6.11. Actions
Due on Saturdays, Sundays and Holidays.
If any
date on which a payment, notice or other action required by this Agreement
falls
is other than a Business Day, then that action or payment need not be taken
or
made on such date, but may be taken or made on the next succeeding Business Day
on which the Fiscal and Paying Agent is open for business with the same force
and effect as if made on such date; provided,
however,
that
for the purposes of any such payment, the term "Business Day" shall have the
meaning ascribed thereto in the Form of Global Subordinated Note attached as
Exhibit A hereto.
Section
6.12. Agreement
To Pay Attorneys’ Fees and Other Expenses.
In the
event the Bank shall default under any of the provisions of this Agreement
and
the Fiscal and Paying Agent shall employ attorneys or incur other expenses
for
the enforcement of performance or observance or any such obligation or
agreement, the Bank agrees that it will on demand pay to the Fiscal and Paying
Agent the reasonable fees and expenses of such attorneys and such other
reasonable expenses incurred by the Fiscal and Paying Agent.
Section
6.13. Survival.
The
Fiscal and Paying Agent’s rights to compensation, reimbursement and
indemnification shall survive the termination of this Agreement, including
any
termination pursuant to any federal or state bankruptcy law, to the extent
enforceable under applicable law.
Section
6.14. No
Implied Waivers.
The
right of any party under any provision of this Agreement shall not be affected
by its prior failure to require the performance by any other party under such
provision or any other provision of this Agreement, nor shall the waiver by
any
party of a breach of any provision hereof constitute a waiver of any succeeding
breach of the same or any other provision or constitute a waiver of the
provision itself or any other provision.
Section
6.15. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original but both or all of which, when taken together, shall
constitute but one instrument, and shall become effective when copies hereof
which, when taken together, bear the signatures of each of the parties hereto,
shall be delivered to each of the parties hereto.
13
Section
6.16. Term.
This
Agreement shall remain in full force and effect until the earlier to occur
of
(i) such time as the principal of and premium, if any, and interest on all
the Subordinated Notes shall have been paid, (ii) the effective date of the
resignation or removal of the Fiscal and Paying Agent or (iii) the payment
of funds to the Bank in accordance with Section 3.4(b).
Section
6.17. Complete
Agreement.
This
Agreement and any appendix hereto contain the entire understanding of the
parties with respect to the subject hereof, and no waiver, alteration or
modification of any of the provisions hereof, shall be binding unless in writing
and signed by a duly authorized representative of all parties
hereto.
Section
6.18. Reopenings.
The
Bank, without the consent of the holders of Subordinated Notes, may issue
additional Subordinated Notes on the same terms and conditions (except for
issue
date and offering price) and with the same CUSIP number as the Subordinated
Notes. As used herein, the term “Subordinated Notes” includes any such
additional Subordinated Notes.
14
IN
WITNESS WHEREOF, the undersigned have executed this Agreement on the date first
set forth above.
TRUSTMARK
NATIONAL BANK
By:
/s/
Xxxxxxxx Xxxxxx
Name: Xxxxxxxx
Xxxxxx
Title: Chief
Investment Officer
THE
BANK
OF NEW YORK TRUST
COMPANY,
N.A., as Fiscal and Paying Agent
By:
/s/
Xxxx X. Xxxxxxxx
Name: Xxxx
X.
Xxxxxxxx
Title: Vice
President
EXHIBIT
A
FORM
OF GLOBAL CERTIFICATE
THIS
NOTE
IS NOT REQUIRED TO BE, AND IS NOT, REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED.
THIS
OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY. THIS OBLIGATION
IS SUBORDINATED TO THE CLAIMS OF DEPOSITORS AND GENERAL CREDITORS OF THE BANK,
IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE BANK AND IS NOT
SECURED.
THIS
NOTE
IS ISSUABLE ONLY IN FULLY REGISTERED FORM IN MINIMUM DENOMINATIONS OF $250,000
AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. EACH OWNER OF A BENEFICIAL
INTEREST IN THIS NOTE MUST BE AN INSTITUTIONAL INVESTOR WHO IS AN “ACCREDITED
INVESTOR” WITHIN THE MEANING OF RULE 501 UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND IS REQUIRED TO HOLD A BENEFICIAL INTEREST IN A $250,000 PRINCIPAL
AMOUNT OR ANY INTEGRAL MULTIPLE OF $1,000 IN EXCESS THEREOF OF THIS NOTE AT
ALL
TIMES.
ANY
PURCHASER, TRANSFEREE OR HOLDER OF THIS NOTE (OR ANY INTEREST HEREIN) WILL
BE
DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND HOLDING OF THIS NOTE THAT EITHER
(A) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED (“ERISA”), A PLAN SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE ASSETS OF SUCH AN EMPLOYEE BENEFIT PLAN OR PLAN BY
REASON OF AN EMPLOYEE BENEFIT PLAN’S OR PLAN’S INVESTMENT IN THE ENTITY
(COLLECTIVELY, A “PLAN”), AND IS NOT PURCHASING THIS NOTE ON BEHALF OF OR WITH
PLAN ASSETS OF ANY PLAN OR WITH ANY ASSETS OF A GOVERNMENTAL OR CHURCH PLAN
THAT
IS SUBJECT TO ANY FEDERAL, STATE OR LOCAL LAW THAT IS SUBSTANTIALLY SIMILAR
TO
THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR (B) ITS
PURCHASE, HOLDING AND DISPOSITION OF THIS NOTE ARE ELIGIBLE FOR EXEMPTIVE RELIEF
OR SUCH PURCHASE, HOLDING AND DISPOSITION ARE NOT PROHIBITED BY ERISA OR SECTION
4975 OF THE CODE (OR, IN THE CASE OF A GOVERNMENTAL OR CHURCH PLAN, ANY
SUBSTANTIALLY SIMILAR FEDERAL, STATE OR LOCAL LAW).
Registered
Principal Amount: $50,000,000
No. R-1
CUSIP: 000000XX0
TRUSTMARK
NATIONAL BANK
5.673%
Subordinated Note Due December 15, 2016
This
5.673% Subordinated Note Due December 15, 2016 (the “Security”) is registered in
the name of CEDE & CO., the nominee of The Depository Trust Company
(the “Depositary”), 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, and may not be
transferred except as a whole by the nominee of the Depositary to another
nominee of the Depositary or to the Depositary or by the Depositary or any
such
nominee to a successor Depositary or a nominee of such successor Depositary
unless and until this Security is exchanged in whole or in part for Securities
in definitive form. Unless this certificate is presented by an authorized
representative of the Depositary to the Corporate Trust Department of The Bank
of New York Trust Company, N.A., as Fiscal and Paying Agent or any duly
appointed successor Fiscal and Paying Agent (the “Fiscal and Paying Agent”), and
any certificate issued is registered in the name of Cede & Co. or such
other name as is requested in writing by an authorized representative of the
Depositary (and any payment is made to Cede & Co. or to such other
entity as is requested in writing by an authorized representative of the
Depositary), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
OR
TO ANY PERSON IS WRONGFUL, inasmuch as the registered owner hereof,
Cede & Co., has an interest herein.
Trustmark
National Bank (the “Bank”), for value received, hereby promises to pay to
CEDE & CO., or registered assigns, the principal amount of FIFTY
MILLION DOLLARS ($50,000,000) on December 15, 2016 (the “Date of Maturity”) and
to pay interest from December 13, 2006, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, at the rate of 5.673%
per annum (calculated on the basis of a 360-day year of twelve 30-day months),
on the unpaid principal hereof until said principal amount has been paid in
full
or duly made available for payment, semiannually in arrears on June 15 and
December 15 of each year, commencing June 15, 2007, and on the Date of Maturity
(each, an “Interest Payment Date”). Payments will include interest accrued to
(but excluding) the relevant Interest Payment Date. All payments on this
Security shall be applied first to accrued interest and the balance, if any,
to
principal.
If
the
Date of Maturity or any other Interest Payment Date falls on a day that is
not a
Business Day (as defined below), the related payment shall be made on the next
succeeding Business Day with the same force and effect as if made when such
payment was due and no interest shall accrue on the amount so payable for the
period from and after such Date of Maturity or Interest Payment Date, as the
case may be. The term “Business Day” means any day that is not a Saturday or
Sunday and that is not a day on which banks in the City of New York, New York,
are generally authorized or required by law to be closed.
Reference
is 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
though fully set forth at this place.
A-2
Unless
the certificate of authentication hereon has been executed by the Fiscal and
Paying Agent by the manual signature of one of its authorized signatories,
this
Security shall not be valid or obligatory for any purpose.
A-3
IN
WITNESS WHEREOF, the Bank has caused this Security to be duly executed and
its
corporate seal to be hereunto affixed and attested.
TRUSTMARK
NATIONAL BANK
By:
___________________________________
Attest:
______________________________
This
is
one of the Securities referred to
in
the
within-mentioned Fiscal and
Paying
Agency Agreement:
THE
BANK
OF NEW YORK TRUST
COMPANY,
N.A.
as
Fiscal
and Paying Agent
By:
_________________________________
Dated:
December 13, 2006
A-4
[Form
of
Reverse Side of Note]
1. This
Security is one of a duly authorized issue of Securities of the Bank, designated
as its “5.673% Subordinated Notes Due December 15, 2016” (each a “Security”, and
collectively, the “Securities”), initially limited in aggregate principal to
$50,000,000. The Bank, without the consent of the Holders (as defined below)
hereof, may issue additional Securities and thereby increase such aggregate
principal amount in the future, on the same terms and conditions (except for
issue date and offering price) and with the same CUSIP number as this Security.
The Bank, for the benefit of the holders from time to time of the Securities
(collectively, the “Holders”), has entered into a Fiscal and Paying Agency
Agreement, dated as of December 13, 2006 (as the same may be amended,
supplemented or otherwise modified from time to time, the “Fiscal and Paying
Agency Agreement”), between the Bank and the Fiscal and Paying Agent. Reference
is hereby made to the Fiscal and Paying Agency Agreement (copies of which are
on
file and available for inspection during normal business hours at the offices
of
the Fiscal and Paying Agent at The Bank of New York Trust Company, N.A., Plaza
of the Americas, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
telephone: (000) 000-0000, telecopy: (000) 000-0000, Attention: Corporate Trust
Department, or at such other place or places as the Fiscal and Paying Agent
shall designate by notice to the Holder in whose name this Security is
registered on the Security Register (as defined in Section 3 of this
Security)), for a statement of the further rights of the Holders and the further
rights, limitations of rights, duties and indemnities thereunder of the Bank
and
the Fiscal and Paying Agent and of the terms upon which the Securities are,
and
are to be, authenticated and delivered.
Payment
of the principal, premium, if any, and interest payable on the Date of Maturity
will be made by wire transfer in immediately available funds to a bank account
in the United States designated by the Holder, upon presentation and surrender
of this Security at the office of the Fiscal and Paying Agent in New York,
New
York or at such other place or places as the Fiscal and Paying Agent shall
designate by notice to the Holder, provided that this Security is presented
to
the Fiscal and Paying Agent in time for the Fiscal and Paying Agent to make
such
payments in such funds in accordance with its normal procedures. Payments of
interest (other than interest payable on the Date of Maturity) shall be made
by
wire transfer in immediately available funds to a bank account in the United
States designated by the Holder in a written notice received by the Fiscal
and
Paying Agent not later than the applicable Record Date (as defined below).
Interest payable on any Interest Payment Date shall be payable to the Holder
in
whose name this Security is registered at the close of business on June 1 or
December 1, as the case may be (whether or not a Business Day), next preceding
such Interest Payment Date (each such date being referred to herein as a
“Regular Record Date”), notwithstanding the subsequent cancellation of this
Security prior to or on such Interest Payment Date, except that interest not
so
punctually paid or duly made available to the Fiscal and Paying Agent for
payment, if any, will be paid to the Holder in whose name this Security is
registered at the close of business on a Special Record Date fixed by the Bank
(a “Special Record Date”) notice of which shall be given to the Holder not less
than 10 calendar days prior to such Special Record Date. (The Regular Record
Date and Special Record Date are referred to herein collectively as “Record
Date”.) To the extent permitted by applicable law, interest shall accrue, at the
rate at which interest accrues on the principal of this Security, on any amount
of principal of or interest on this Security not paid when due. All payments
on
this Security shall be applied first to accrued interest and the balance, if
any, to principal.
A-5
2. Payments
of principal of and interest on this Security shall be made in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts. Until the date on
which all of the Securities shall have been surrendered or delivered to the
Fiscal and Paying Agent for cancellation or destruction, or become due and
payable and a sum sufficient to pay the principal of and interest on all of
the
Securities shall have been made available for payment and either paid or
returned to the Bank as provided herein and in the Fiscal and Paying Agency
Agreement, the Fiscal and Paying Agent shall at all times maintain an office
or
agency in New York, New York, where Securities may be presented or surrendered
for payment; provided that, any successor Fiscal and Paying Agent appointed
by
the Bank as permitted by Section 9 of this Security, or the Bank upon
undertaking the performance of the functions of Fiscal and Paying Agent, shall
not be required to maintain an office in New York, New York but shall be
required to maintain an office or agency the location of which shall be
communicated promptly to the Holder of this Security.
3. Except
as
otherwise provided on the face of this Security, this Security is transferable
in whole or in part, and may be exchanged for a like aggregate principal amount
of Securities of other authorized denominations, by the Holder in person,
or by his attorney duly authorized in writing, at the office of the Fiscal
and
Paying Agent in New York, New York. The Fiscal and Paying Agent shall maintain
a
register providing for the registration of the Securities and any exchange
or
transfer thereof (the “Security Register”). Upon surrender or presentation of
this Security for exchange or registration of transfer, the Bank shall execute
and the Fiscal and Paying Agent shall authenticate and deliver in exchange
therefor a Security or Securities, each in a denomination of $250,000 or any
amount in excess thereof which is an integral multiple of $1,000 which has
or
have an aggregate denomination equal to the denomination of this Security and
is
or are registered in such name or names requested by the Holder. Any Security
presented or surrendered for registration of transfer or for exchange shall
(if
so required by the Fiscal and Paying Agent) be duly endorsed, or accompanied
by
a written instrument of transfer with such evidence of due authorization and
guarantee of signature as may reasonably be required by the Fiscal and Paying
Agent in form satisfactory to the Fiscal and Paying Agent, duly executed by
the
Holder or his attorney duly authorized in writing, and with such tax
identification number or other information for each person in whose name a
Security is to be issued as the Fiscal and Paying Agent may reasonably request
to comply with applicable law. No exchange or registration of transfer of this
Security shall be made on or after the fifteenth day immediately preceding
the
Date of Maturity.
No
service charge (other than any cost of delivery) shall be imposed for any
exchange or registration of transfer of this Security, but the Bank or Fiscal
and Paying Agent may require the payment of a sum sufficient to cover any stamp
or other tax or governmental charge that may be imposed in connection therewith
(or presentation of evidence that such tax or charge has been
paid).
Prior
to
due presentment of this Security for registration of transfer, the Bank, the
Fiscal and Paying Agent and their respective agents may treat the Holder in
whose name this Security is registered in the Security Register as the absolute
owner of this Security for the purpose of receiving payments of principal of
and
interest on this Security and for all other purposes whatsoever, whether or
not
this Security be overdue, and the Bank and the Fiscal and Paying Agent shall
not
be affected by any notice to the contrary.
A-6
4. ANYTHING
TO THE CONTRARY HEREIN NOTWITHSTANDING, THIS SECURITY IS NOT SUBJECT TO
REDEMPTION PRIOR TO MATURITY AND IS NOT SUBJECT TO ANY SINKING
FUND.
5. The
Securities rank pari
passu
among
themselves and pari
passu,
in the
event of a liquidation or similar proceeding with respect to the Bank, with
all
other present or future unsecured subordinated debt obligations of the Bank,
except any unsecured subordinated debt which may be expressly stated to be
subordinated to the Securities.
6. The
indebtedness of the Bank evidenced by this Security, including principal and
interest, is unsecured and subordinate and junior in right of payment to the
Bank’s obligations to its depositors, its obligations under bankers’ acceptances
and letters of credit, its obligations to any Federal Reserve Bank or the
Federal Deposit Insurance Corporation (“FDIC”) and its obligations to its other
creditors, and to any rights acquired by the FDIC as a result of loans made
by
the FDIC to the Bank or the purchase or guarantee of any of its assets by the
FDIC pursuant to the provisions of 12 U.S.C. Section 1823(c), (d) or
(e), in each case whether outstanding at the date of this Security or hereafter
incurred (except any obligations which expressly rank on a parity with or junior
to this Security). In the case of any insolvency proceedings, receivership,
conservatorship, reorganization, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings or any liquidation, dissolution or winding-up
of the Bank, whether voluntary or involuntary, all such obligations, except
obligations which expressly rank on a parity with or junior to this Security,
shall be entitled to be paid in full before any payment shall be made on account
of the principal of, or interest on, this Security. In the event of any such
proceeding, after payment in full of all sums owing with respect to such prior
obligations, the Holder of this Security, together with the holders of any
obligations of the Bank ranking on a parity with this Security, shall be
entitled to be paid from the remaining assets of the Bank, the unpaid principal
of, and the unpaid interest on, this Security or such other obligations before
any payment or other distributions whether in cash, property or otherwise shall
be made on account of any capital stock or any obligations of the Bank ranking
junior to this Security. Nothing herein shall impair the obligation of the
Bank,
which is absolute and unconditional, to pay the principal of and any interest
on
this Security in accordance with its terms.
7. Notwithstanding
any other provisions of this Security, including specifically those set forth
in
the sections relating to subordination, events of default and covenants of
the
Bank, it is expressly understood and agreed that the Office of the Comptroller
of the Currency (the “Comptroller”) or any receiver or conservator of the Bank
appointed by the Comptroller shall have the right in the performance of his
legal duties, and as part of any transaction or plan of reorganization or
liquidation designed to protect or further the continued existence of the Bank
or the rights of any parties or agencies with an interest in, or claim against,
the Bank or its assets, to transfer or direct the transfer of the obligations
of
this Security to any national banking association, state bank or bank holding
company selected by such official which shall expressly assume the obligation
of
the due and punctual payment of the unpaid principal, interest and premium,
if
any, on this Security and the due and punctual performance of all covenants
and
conditions hereof; and that the completion of such transfer and assumption
shall
serve to supersede and void any default, acceleration or subordination which
may
have occurred, or which may occur due or related to such transaction, plan,
transfer or assumption, pursuant to the provisions of this Security, and shall
serve to return the Holder to the same position, other than for substitution
of
the obligor, it would have occupied had no default, acceleration or
subordination occurred; except that any interest and principal previously due,
other than by reason of acceleration, and not paid shall, in the absence of
a
contrary agreement by the Holder of this Security, be deemed to be immediately
due and payable as of the date of such transfer and assumption, together with
the interest from its original due date at the rate provided for
herein.
A-7
8. All
notices to the Bank under this Security shall be in writing and addressed to
the
Bank at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxx 00000, Attention: Chief
Investment Officer, or to such other address as the Bank may notify to the
Holder. All notices to the Fiscal and Paying Agent shall be in writing and
addressed to the Fiscal and Paying Agent at the office of the Fiscal and Paying
Agent at The Bank of New York Trust Company, N.A., Plaza of the Americas, 000
Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000, telephone: (000) 000-0000,
telecopy: (000) 000-0000, Attention: Corporate Trust Department. All notices
to
the Holder shall be in writing and sent by first-class mail to the Holder at
his
or its address as set forth in the Security Register.
9. In
acting
under the Fiscal and Paying Agency Agreement, the Fiscal and Paying Agent is
acting solely as the agent of the Bank and does not have any fiduciary duties
to, and does not assume any obligation or relationship of agency or trust,
with
the Holder except money deposited with the Fiscal and Paying Agent will be
held
on behalf of the Holders until disbursed to the Holders, except as provided
in
the Fiscal and Paying Agency Agreement. Under the terms of the Fiscal and Paying
Agency Agreement, the Bank may remove any Fiscal and Paying Agent and appoint
a
new Fiscal and Paying Agent in respect of the Securities, or may remove any
Fiscal and Paying Agent and undertake to perform at the Bank any or all of
the
functions of the Fiscal and Paying Agent under the Fiscal and Paying Agency
Agreement. The Bank shall notify, or cause the Fiscal and Paying Agent to
notify, the Holder of this Security of the appointment of any successor Fiscal
and Paying Agent or the undertaking of the Bank to perform at the Bank the
functions of the Fiscal and Paying Agent.
10. The
Securities are issuable only as fully registered Securities without interest
coupons in denominations of $250,000 or any amount in excess thereof which
is an
integral multiple of $1,000.
11. The
term
“Event of Default,” as used in this Security, means any of the following events
(whatever the reason for such event 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 decree, order, rule or regulation of any
governmental agency or body):
(i)
the
Bank
shall consent to the appointment of a receiver, liquidator, trustee or other
similar official in any receivership, liquidation, insolvency or similar
proceeding with respect to the Bank or all or substantially all of the property
of the Bank; or
(ii)
a
court
or other governmental agency or body having jurisdiction in the premises shall
enter a decree or order for the appointment of a receiver, liquidator, trustee
or other similar official of the Bank in any receivership, liquidation,
insolvency or similar proceeding with respect to the Bank or all or
substantially all of the property of the Bank, or for the winding up or
liquidation of the affairs or business of the Bank.
A-8
The
Fiscal and Paying Agency Agreement provides that the Bank will promptly notify
the Fiscal and Paying Agent, and the Fiscal and Paying Agent will promptly
notify by first-class mail, postage prepaid, the Holders of the Securities,
upon
the occurrence of an Event of Default.
12. If
an
Event of Default shall occur and be continuing, the Holder may, at its option,
by written notice to the Bank and the Fiscal and Paying Agent, declare this
Security to be, and on the day such declaration shall have been delivered to
the
Bank and the Fiscal and Paying Agent, unless the Fiscal and Paying Agent shall
have received notice from the Bank that all Events of Default have been cured
by
the Bank prior to receipt by the Fiscal and Paying Agent of such declaration,
such Security shall become, immediately due and payable at its principal amount,
together with accrued and unpaid interest thereon to the date of payment;
provided,
however,
that to the extent then required under or pursuant to applicable regulations
of
the Comptroller (including, without limitation, 12 C.F.R. § 5.47) no accelerated
payment may be made without the prior written approval of the
Comptroller.
The
Fiscal and Paying Agency Agreement provides that the Holder of this Security
may
rescind a declaration of an Event of Default and acceleration with respect
to
this Security under certain circumstances and may waive any past Event of
Default and its consequences.
13. There
is
no right of acceleration in the case of a default in the payment of the
principal of or interest on the Securities or the performance of any other
obligation of the Bank under the Fiscal and Paying Agency Agreement or the
Securities. However, any Holder of Securities may bring a legal action to
enforce such payment of principal or interest or such other
obligation.
14. The
Bank
shall not consolidate with or merge into any other person or convey, transfer
or
lease its properties and assets substantially as an entirety to any person,
unless (a) the person formed by such consolidation or into which the Bank
is merged or the person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Bank substantially as an entirety
shall
be a corporation, partnership or other entity organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by a supplement to this
Security, the due and punctual payment of the principal of and any premium
and
interest on this Security and the performance or observance of every provision
of this Security on the part of the Bank to be performed or observed and
(b) immediately after giving effect to such transaction, no Event of
Default or nonpayment as described in Section 13 of this Security, and no
event which, after notice or lapse of time or both, would become such an Event
of Default or nonpayment, shall have happened and be continuing.
15. The
Fiscal and Paying Agency Agreement provides that the Bank and the Fiscal and
Paying Agent may amend the Fiscal and Paying Agency Agreement, including
amendments to the terms of the Securities designed to cure ambiguities, defects
or inconsistencies, without the consent of the Holders of the Securities, except
that the consent of all Holders of Securities is required in order to change
the
Date of Maturity of any Security, to extend the time of payment on any overdue
principal amount, to change the coin or currency in which any Security or the
interest thereon is payable, to change the definition of Interest Payment Date,
to reduce the principal amount of or rate of interest on any Security, to change
the method of payment to other than wire transfer in immediately available
funds, to impair the right of the Holder of this Security to institute suit
for
the enforcement of payments of principal of or interest or other amounts on
the
Securities, to modify the subordination provisions of the Securities in any
manner adverse to the Holders of Securities, to reduce the percentage in
principal amount of Securities outstanding the consent of whose Holders is
required to amend the Fiscal and Paying Agency Agreement or the Securities
or to
modify the provisions of the Fiscal and Paying Agency Agreement governing the
amendment thereof and of the Securities. If the consent of the Holders of
Securities is required, the Bank and the Fiscal and Paying Agent shall request
such consent and will deliver to each Holder of Securities an explanation of
such amendment and the terms thereof. It shall not be necessary for the Holders
of Securities to approve the precise form of any proposed
amendment.
A-9
Any
consent or waiver given 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
therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
16. No
reference herein to the Fiscal and Paying Agency Agreement and no provision
of
this Security shall alter or impair the obligation of the Bank, which is
absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed. No failure or delay on the part of the Holder in exercising any
right under this Security shall operate as a waiver of, or impair, any such
right. No waiver of any such rights shall be effective unless given in
writing.
17. The
Securities constitute subordinated debt which qualifies as capital under
12 C.F.R. Part 3, Appendix A.
18. This
Security is a debt of the Bank only and is not an obligation of Trustmark
Corporation or any of its affiliates other than the Bank.
19. THIS
SECURITY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH,
THE LAWS OF THE STATE OF NEW YORK AND, WHERE APPROPRIATE, THE LAWS OF THE UNITED
STATES.
A-10
