As filed with the Securities and Exchange Commission on September 15, 2015
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Renasant Corporation
(Exact name of registrant as specified in its charter)
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| Mississippi |
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64-0676974 |
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incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
209 Troy Street
Tupelo, Mississippi 38804-4827
(662) 680-1001
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
E. Robinson
McGraw
Renasant Corporation
209 Troy Street
Tupelo, Mississippi 38804-4827
(662) 680-1001
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Mark A. Fullmer, Esq.
Mark W. Jeanfreau, Esq.
Phelps Dunbar, L.L.P.
365 Canal Street, Suite 2000
New Orleans, Louisiana 70130
(504) 566-1311
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If
the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become
effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller
reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
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| Large accelerated filer |
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x |
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Accelerated filer |
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| Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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| Title of each class of
securities to be registered |
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Amount
to be registered(1) |
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Proposed
maximum aggregate
offering price(1)(2) |
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Amount of
registration fee(2) |
| Common Stock, par value $5.00 per
share(3) |
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| Preferred Stock, par value $0.01 per
share(3) |
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| Depository Shares(3) |
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| Debt Securities |
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| Rights |
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| Warrants(4) |
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| Units(5) |
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| TOTAL: |
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An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may
not be received for securities that are issuable on exercise, conversion or exchange of other securities or that are issued in units or represented by Depositary Shares. In accordance with General Instruction II.E. to Form S-3 under the Securities
Act of 1933 (the “Securities Act”), information as to each class of securities to be registered is not specified. |
| (2) |
In accordance with Rules 456(b) and 457(r) under the Securities Act, the registrant is deferring payment of all of the registration fee subject to the conditions set forth in such rules. Pursuant to Rule 416 under the
Securities Act, this registration statement also covers any additional shares that may be offered or issued in connection with any stock split, stock dividend or similar transaction. |
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Shares of preferred stock, common stock and depositary shares of the registrant may be issuable for separate consideration or upon conversion of other securities registered hereunder. Each depositary share will be
issued under a deposit agreement, will represent a fractional interest in a share of preferred stock, and will be evidenced by a depositary receipt. |
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The warrants covered by this registration statement may be common stock warrants, preferred stock warrants or warrants to purchase other securities and will be issued under a warrant agreement. |
| (5) |
Each unit will be issued under a unit agreement or indenture and will represent an interest in two or more debt or equity securities, which may or may not be separable from one another. |
PROSPECTUS
Common Stock
Preferred Stock
Depositary Shares
Debt
Securities
Rights
Warrants
Units
Renasant Corporation may offer and sell, from time to time, in one or more offerings, together or separately, common stock, preferred stock,
depositary shares, debt securities, rights, warrants and units and hybrid securities combining elements of the foregoing.
This prospectus
describes some of the general terms that may apply to these securities and the general manner in which they may be offered. We will offer the securities in amounts, at prices and on terms to be determined by market conditions at the time of the
offering. We will provide by supplements to this prospectus the specific terms and manner of offering of the securities that we actually offer. These prospectus supplements may also add, update or change information contained in this prospectus. You
should read this prospectus and the applicable prospectus supplement carefully before you invest in the securities described in the applicable prospectus supplement. This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement that describes the terms and manner of offering of those securities.
We may offer and sell these securities directly
or through one or more underwriters, dealers and agents, on a continuous or delayed basis, or through a combination of these methods. If an offering of securities involves any underwriters, dealers or agents, then the prospectus supplement will name
the underwriters, dealers or agents and will provide information regarding any fee, commission or discount arrangements made with those underwriters, dealers or agents.
Our common stock is traded on The NASDAQ Global Select Market under the symbol “RNST.” On September 14, 2015, the last sales price on
The NASDAQ Global Select Market for our common stock was $32.61. You are urged to obtain current market prices for our common stock. None of the other securities that may be offered pursuant to this prospectus are listed on an exchange. If we decide
to list or seek a quotation for any other securities, the prospectus supplement relating to those securities will disclose the exchange or market on which such securities will be listed or quoted.
Investing in our securities involves risk. You should refer to the “Risk Factors” section included in
the applicable prospectus supplement and in our periodic reports and other information we file with the Securities and Exchange Commission and carefully consider that information before investing in any of these securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed
upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
These securities will
be our equity and debt securities, will not be deposits, savings accounts or other obligations of any bank, and will not be insured by the Federal Deposit Insurance Corporation or any other governmental agency or instrumentality.
Our principal executive office is located at 209 Troy Street, Tupelo, Mississippi 38804-4827, telephone number: (662) 680-1001.
This prospectus is dated September 15, 2015.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using the
“shelf” registration process. Under this shelf registration statement, from time to time, we may sell, either separately or together, common stock, preferred stock, depositary shares, debt securities, rights, warrants and units, and hybrid
securities combining elements of the foregoing, in one or more offerings. Unless we indicate otherwise, references to “we,” “our,” “us,” “the Company” and “Renasant” are to Renasant Corporation and
its subsidiaries on a consolidated basis, and references to “the Bank” or “our Bank” are to Renasant Bank.
This
prospectus only provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a supplement to this prospectus that contains specific information about the terms of the securities and the
offering. A prospectus supplement may include a discussion of any risk factors or other special considerations applicable to those securities or to us. The supplement also may add, update or change information contained in this prospectus. If there
is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement. You should carefully read both this prospectus and any prospectus supplement,
together with the additional information described under the heading “Where You Can Find More Information” below.
The
registration statement containing this prospectus, including exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus. That registration statement, including the exhibits and
the documents incorporated herein by reference, can be read at our website (www.renasant.com), the SEC website (www.sec.gov) or at the SEC offices mentioned under the heading “Where You Can Find More Information” below.
You should rely only on the information contained or incorporated by reference in this prospectus and the relevant prospectus supplement. We
have not authorized any other person, including any underwriter or agent, to provide you with different or additional information. If anyone provides you with different or inconsistent information, you should not rely on it. We may only use this
prospectus to sell securities if it is accompanied by a prospectus supplement, and we will not make an offer to sell our securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in
this prospectus, as well as information we previously filed with the SEC and have incorporated by reference, is accurate as of the date of the front cover of this prospectus only. Our business, financial condition, results of operations, and
prospects may have changed since that date.
We may sell securities to underwriters who will sell the securities to the public on terms
fixed at the time of sale. In addition, the securities may be sold by us from time to time directly to the public or through dealers or designated agents. If we, directly or through agents, solicit offers to purchase the securities, we reserve the
sole right to accept and, together with any agents, to reject, in whole or in part, any of those offers. Any prospectus supplement will contain the names of the underwriters, dealers or agents, if any, together with the terms of offering, the
compensation of those underwriters and the net proceeds to us. Any underwriters, dealers, or agents participating in the offering may be deemed “underwriters” within the meaning of the Securities Act of 1933, as amended, or the Securities
Act.
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RISK FACTORS
An investment in Renasant securities involves risk. Before making an investment decision, you should carefully read and consider the risk
factors incorporated by reference into this prospectus, as well as those contained in any applicable prospectus supplement. These risk factors may also be updated from time to time by our future filings with the SEC under the Securities Exchange Act
of 1934, as amended, or the Exchange Act. You should also refer to other information contained in or incorporated by reference into this prospectus and any applicable prospectus supplement, including our financial statements and the related notes
incorporated by reference herein. Additional risks and uncertainties not presently known to us at this time or that we currently deem immaterial may also materially and adversely affect our business, operations and prospects. The trading price of
our securities could decline due to any of these risks, and you may lose all or part of your investment. This prospectus is qualified in its entirety by these risk factors.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy this registration
statement and any reports, statements or other information that we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the Public
Reference Room. Our SEC filings are also available to the public from commercial document retrieval services and at the website maintained by the SEC at www.sec.gov. Reports, proxy statements and other information that we file with the SEC can also
be found on our website, www.renasant.com, under the link “SEC Filings.” The information on, or that can be accessed through, our website is not a part of this document.
This prospectus is a part of a registration statement on Form S-3 filed by us with the SEC under the Securities Act. This prospectus does not
contain all the information set forth in the registration statement, certain parts of which are omitted in accordance with the rules and regulations of the SEC. For further information with respect to us and the securities offered by this
prospectus, reference is made to the registration statement. Whenever a reference is made in this prospectus or any prospectus supplement to a contract or other document, the reference is only a summary and is qualified in its entirety by reference
to the copy of the applicable document filed with the SEC; you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document.
The SEC allows us to “incorporate by reference” the information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus, and later information that we file with the SEC will automatically update and supersede this information.
In all cases, you should rely on the later information incorporated by reference over different information included in this prospectus.
We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act (except to the extent that any information contained in such filings is deemed “furnished” in accordance with SEC rules, including, but not limited to, information furnished under Items 2.02 and 7.01 of any Current Report
on Form 8-K including related exhibits), until we or any underwriters sell all of the securities offered by this prospectus:
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Our Annual Report on Form 10-K for the year ended December 31, 2014 filed with the SEC on March 2, 2015 (including information specifically incorporated by reference into our Form 10-K for the year ended
December 31, 2014); |
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Our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2015, filed on May 8, 2015, and for the quarter ended June 30, 2015, filed on August 7, 2015; |
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Our Current Reports on Form 8-K and amendments thereto filed with the SEC on January 20, 2015, February 11, 2015, March 13, 2015, April 28, 2015, April 29,
2015, May 4, 2015, May 18, 2015, June 16, 2015, July 8, 2015, July 21, 2015 and July 29, 2015; and |
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The description of our common stock contained in our Form 8-A Registration Statement filed with the SEC on April 28, 2005, as amended by Amendment No. 1 to Form 8-A Registration Statement filed with the SEC on
April 19, 2007, and including any other amendments or reports filed for the purpose of updating such description. |
To the extent that
any information contained in any report on Form 8-K or any exhibit thereto, was furnished to, rather than filed with the SEC, such information or exhibit is specifically not incorporated by reference.
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You may request a copy of these filings, at no cost (other than for a copy of an exhibit to a
filing, unless that exhibit is specifically incorporated by reference in the filing), by writing or telephoning us at the following address and telephone number:
Renasant Corporation
209 Troy Street
Tupelo, Mississippi 38804-4827
Telephone: (662) 680-1001
Attention: Mr. Kevin D. Chapman
You should rely only on the information contained or incorporated by reference in this prospectus and the applicable prospectus supplement. We have not
authorized anyone else to provide you with additional or different information.
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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplements contain or incorporate by reference various forward-looking statements within the
meaning of the Private Securities Litigation Reform Act of 1995 about Renasant that are subject to risks and uncertainties. Congress passed the Private Securities Litigation Reform Act of 1995 in an effort to encourage companies to provide
information about their anticipated future financial performance. This act provides a safe harbor for such disclosure, which protects a company from unwarranted litigation if actual results are different from management expectations. Forward-looking
statements include information concerning our future financial performance, business strategy, projected plans and objectives. These statements are based upon the current beliefs and expectations of our management and are inherently subject to
significant business, economic and competitive risks and uncertainties, many of which are beyond our control. In addition, these forward-looking statements are subject to assumptions with respect to future business strategies and decisions that are
subject to change. Actual results may differ from those indicated or implied in the forward-looking statements, and such differences may be material. Statements preceded by, followed by or that otherwise include the words “believes,”
“expects,” “anticipates,” “intends,” “estimates,” “plans,” “may increase,” “may fluctuate,” “will likely result,” and similar expressions, or future or conditional verbs
such as “will,” “should,” “would,” and “could,” are generally forward-looking in nature and not historical facts.
You should understand that the following important factors, in addition to those discussed elsewhere in this prospectus and in any
accompanying prospectus supplement, as well as in the documents which are incorporated by reference into this prospectus and in any accompanying prospectus supplement, could cause actual results to differ materially from those expressed in such
forward-looking statements:
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our ability to efficiently integrate acquisitions into our operations, retain the customers of these businesses and grow the acquired operations; |
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the effect of economic conditions and interest rates on a national, regional or international basis; |
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the timing of the implementation of changes in operations to achieve enhanced earnings or effect cost savings; |
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competitive pressures in the consumer finance, commercial finance, insurance, financial services, asset management, retail banking, mortgage lending and auto lending industries; |
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the financial resources of, and products available to, competitors; |
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changes in laws and regulations, including changes in accounting standards; |
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changes in policy by regulatory agencies; |
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changes in the securities and foreign exchange markets; |
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our potential growth, including our entrance or expansion into new markets, and the need for sufficient capital to support that growth; |
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changes in the quality or composition of our loan or investment portfolios, including adverse developments in borrower industries or in the repayment ability of individual borrowers; |
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an insufficient allowance for loan losses as a result of inaccurate assumptions; |
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general economic, market or business conditions; |
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changes in demand for loan products and financial services; |
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concentration of credit exposure; |
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changes or the lack of changes in interest rates, yield curves and interest rate spread relationships; and |
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other circumstances, many of which are beyond management’s control. |
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Our management believes the forward-looking statements about us are reasonable. However, you
should not place undue reliance on them. Any forward-looking statements in the prospectus are not guarantees of future performance. They involve risks, uncertainties and assumptions, and actual results, developments and business decisions may differ
from those contemplated by those forward-looking statements. Many of the factors that will determine these results are beyond our ability to control or predict. We disclaim any duty to update any forward-looking statements, all of which are
expressly qualified by the statements in this section.
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RENASANT CORPORATION
We are a bank holding company headquartered in Tupelo, Mississippi. Through our wholly-owned bank subsidiary, Renasant Bank, and its
subsidiary, Renasant Insurance, Inc., we operate more than 170 banking, mortgage, financial services and insurance offices in Mississippi, Tennessee, Alabama, Florida and Georgia. Our Community Banks, Mortgage and Wealth Management segments operate
out of all of these offices. Our Bank was originally founded in 1904 as The Peoples Bank & Trust Company. In 1982, we reorganized as a bank holding company. In 2005, we changed our name from The Peoples Holding Company to Renasant
Corporation.
Through Renasant Bank, we offer a complete range of banking and financial services to individuals and to small to
medium-size businesses. These services include checking and savings accounts, business and personal loans, interim construction loans, equipment leasing, as well as safe deposit and night depository facilities. Automated teller machines are located
throughout our market area. Our Online and Mobile Banking products and our call center also provide 24-hour banking services. Accounts receivable financing is also available to qualified businesses. Through our Mortgage division, we offer both fixed
and variable rate residential mortgage loans with competitive terms and fees. In many cases, we originate mortgage loans with the intention of selling them in the secondary market to third party private investors or directly to government sponsored
agencies. Depending on a number of factors, we may release or retain the right to service these loans upon the sale.
Through our Wealth
Management business, we offer a wide variety of fiduciary services and administer (as trustee or in other fiduciary or representative capacities) qualified retirement plans, profit sharing and other employee benefit plans, personal trusts and
estates. In addition, the Wealth Management segment offers annuities, mutual funds and other investment services through a third party broker-dealer. Through Renasant Insurance, we also offer all lines of commercial and personal insurance through
major carriers.
Our primary asset is our investment in Renasant Bank. At June 30, 2015, our consolidated total assets were
approximately $5.90 billion, our total loans (net of unearned income) were approximately $4.04 billion, our total deposits were approximately $4.89 billion, and our total shareholders’ equity was approximately $731 million.
Effective July 1, 2015, we completed our previously-announced merger with Heritage Financial Group, Inc. (“Heritage”) in a
transaction valued at approximately $288 million. We issued 8,636,677 shares of common stock and paid $5.9 million to Heritage stock option holders for 100% of the voting equity interest in Heritage. Before the consideration of purchase accounting
adjustments, our acquisition of Heritage added approximately $1.9 billion in assets, $1.2 billion in loans, and $1.3 billion in deposits.
Our principle executive offices are located at 209 Troy Street, Tupelo, Mississippi 38804-4827. Our telephone number at that address is
(662) 680-1001. Our internet address is www.renasant.com.
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USE OF PROCEEDS
Unless we indicate otherwise in an applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities
described in this prospectus for general corporate purposes. These purposes may include (1) providing capital to support our growth organically or through the acquisition of financial institutions or branches thereof in negotiated transactions,
the acquisition of failed institutions from the Federal Deposit Insurance Corporation or the acquisition of businesses related to banking, (2) repaying or refinancing existing indebtedness, (3) financing investments in our subsidiaries or
capital expenditures and (4) repurchasing our outstanding common stock. The applicable prospectus supplement will provide more details on the use of proceeds of any specific offering at the time of sale. Pending such use, we may place the net
proceeds in temporary investments or in deposit accounts at the Bank or we may use the net proceeds to reduce our indebtedness.
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RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed charges for each of the years in the five-year period ended
December 31, 2014 and for the six-month period ended June 30, 2015. No shares of our preferred stock were outstanding, and we did not pay dividends on preferred stock, during these periods. No shares of our preferred stock are currently
outstanding. As a result, the ratios of earnings to fixed charges and preferred stock dividends are the same as the ratios of earnings to fixed charges for these periods.
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Six months ended
June 30, 2015 |
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Year ended December 31, |
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| Excluding interest on deposits |
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12.01 |
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11.36 |
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7.32 |
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5.20 |
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4.25 |
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3.83 |
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| Including interest on deposits |
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5.18 |
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4.53 |
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2.88 |
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2.24 |
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1.82 |
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1.77 |
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The ratios of earnings to fixed charges is computed in accordance with Item 503 of Regulation S-K by
dividing (1) income before income taxes, fixed charges and amortization of capitalized interest, less interest capitalized and noncontrolling interest in income of subsidiaries that have not incurred fixed charges by (2) total fixed
charges. For purposes of computing these ratios:
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fixed charges, including interest on deposits, include all interest expense, interest capitalized and the estimated portion of rental expense attributable to interest, net of income from subleases; and
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fixed charges, excluding interest on deposits, include interest expense (other than on deposits), interest capitalized and the estimated portion of rental expense attributable to interest, net of income from subleases.
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DESCRIPTION OF SECURITIES WE MAY OFFER
This prospectus contains summary descriptions of the common stock, preferred stock, depositary shares, debt securities, rights, warrants and
units that we may offer from time to time. These summary descriptions are not meant to be complete descriptions of each security. The applicable prospectus supplement and other offering material will describe particular terms of any security we
offer, and it may add, update or change the terms and conditions of the securities as summarized in this prospectus. The applicable prospectus supplement will also contain information, where applicable, about material U.S. federal income tax
considerations relating to the securities, and the securities exchange, if any, on which the securities will be listed.
In addition, for
certain types of securities we offer, as discussed below, we may also adopt an amendment to our articles of incorporation or enter into an agreement that will govern the terms of such securities. We will file any such amendment or agreement with the
SEC in connection with the offering of the applicable securities. For more information on how you can obtain copies of documents we file with the SEC, see “Where You Can Find More Information” above.
In the descriptions of our common stock, preferred stock, depositary shares, debt securities, rights, warrants and units, the terms
“we,” “our” and “us” refer only to Renasant Corporation and not to its subsidiaries.
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DESCRIPTION OF COMMON STOCK
This section describes the material terms and provisions of our $5.00 par value common stock, or “common stock,” that we may offer
from time to time. The following description of our common stock is only a summary and is subject to and qualified in its entirety by reference to our articles of incorporation, as amended (our “articles of incorporation”), our restated
bylaws, as amended (our “bylaws”), and the Mississippi Business Corporation Act (the “MBCA”) and other applicable provisions of Mississippi law. You should refer to, and read this summary together with, our articles of
incorporation and bylaws to review all of the terms of our common stock. When we offer to sell shares of our common stock, we will describe the specific terms of the offering and the shares in a prospectus supplement.
General
Our articles of incorporation
authorize the issuance of up to 75,000,000 shares of common stock. A total of 40,266,557 shares were issued and outstanding as of August 31, 2015. Our common stock trades on The NASDAQ Global Select Market under the symbol “RNST.” As
of August 31, 2015, approximately 1,170,000 shares of common stock were reserved for issuance under various employee and director benefit plans that we maintain. Computershare, Inc. serves as the registrar and transfer agent of our common
stock.
You should note that the rights and privileges of holders of our common stock are subject to any preferences that our board of
directors may set for any series of preferred stock that we may issue in the future. These preferences may relate to voting, dividend and liquidation rights, among other things.
Voting Rights
Holders of shares of our
common stock are entitled to one vote per share on all matters submitted to a vote of shareholders, including the election of directors. In general, a majority of votes cast on a matter, whether in person or by proxy, at a meeting of shareholders at
which a quorum is present is sufficient to take action on such matter, except that supermajority votes are required to approve specified business combinations and other actions, as discussed below. Directors are elected by a plurality of votes cast,
and shareholders do not have cumulative voting rights.
Supermajority Voting Provisions
Our articles of incorporation contain a “fair price” provision. This provision requires the approval by the holders of not less than
80% of our outstanding voting stock, and the approval of the holders of not less than 67% of our outstanding voting stock held by shareholders other than a “controlling party” (defined to mean a shareholder owning or controlling 20% or
more of our outstanding voting stock at the time of the proposed transaction), of any merger, consolidation or sale or lease of all or substantially all of our assets involving the controlling party. For purposes of the fair price provisions,
“substantially all” of our assets means assets having a fair market value or book value, whichever is greater, that is at least 25% of the value of our total assets, as set forth on a balance sheet that is as of a date no more than 45 days
prior to the proposed transaction. The elevated approval requirements do not apply if (1) the proposed transaction is approved by a majority of our board of directors or (2) the consideration our shareholders will receive in the proposed
transaction meets certain minimum price requirements set forth in the articles of incorporation.
Under our articles of incorporation, the
affirmative vote of the holders of at least 80% of the total outstanding shares of our common stock is required to alter, amend, repeal or adopt any provision inconsistent with these fair price provisions.
Dividend Rights
Holders of our common
stock are entitled to receive dividends or distributions, whether payable in cash or otherwise, if, as and when declared by our board of directors, out of funds legally available for these payments.
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Under the MBCA, we may not pay a dividend if, after paying such dividend, (1) we would not be able to pay our debts as they become due or (2) our total assets would be less than the sum
of our total liabilities plus the amount that would be needed to satisfy the preferential rights upon dissolution of shareholders, if any, whose rights are superior to those receiving the distribution.
As a bank holding company, our ability to pay dividends is substantially dependent on the ability of Renasant Bank to transfer funds to us in
the form of dividends, loans and advances. Accordingly, our declaration and payment of dividends depends upon Renasant Bank’s earnings and financial condition, as well as upon general economic conditions and other factors. In addition, under
Mississippi law, a Mississippi bank may not pay dividends unless its earned surplus is in excess of three times capital stock. A Mississippi bank with earned surplus in excess of three times capital stock may pay a dividend, subject to the approval
of the Mississippi Department of Banking and Consumer Finance. Accordingly, the approval of this supervisory authority is required prior to Renasant Bank paying dividends to us. Finally, Federal Reserve regulations limit the amount Renasant Bank may
transfer to us in the form of a loan unless such loan is collateralized by specific obligations. The Company maintains a line of credit collateralized by cash with the Bank totaling $3,030,000. No amounts are outstanding under this line of credit as
of the date of this prospectus.
Classified Board of Directors; Filling Board Vacancies
Our board of directors is divided into three classes of directors serving staggered three-year terms. Each class of directors consists, as
nearly as possible, of one-third of the total number of directors. Under our articles of incorporation, the affirmative vote of the holders of at least 80% of the total outstanding shares of our common stock entitled to vote in the election of
directors is required to alter, amend, repeal or adopt any provision inconsistent with the provisions of the articles of incorporation governing our classified board of directors.
The board may fill a vacancy on the board of directors, including a vacancy created by an increase in the number of directors. Any director
elected to the board of directors to fill a vacancy on the board will hold office until the next annual meeting of shareholders. Under the MBCA, shareholders may remove a director with or without cause, but only at a meeting of shareholders called
specifically for the purpose of removing such director (our shareholders’ rights to call a meeting are discussed below).
Liquidation and Other
Rights
Our shareholders are entitled to share ratably in our assets legally available for distribution to our shareholders in the
event of our liquidation, dissolution or winding up, whether voluntary or involuntary, after payment of, or adequate provision for, all of our known debts and liabilities.
Holders of shares of our common stock have no preference, conversion or exchange rights and have no preemptive rights to subscribe for any of
our securities. There are no sinking fund provisions applicable to our common stock. All outstanding common stock is, when issued against payment therefor, fully paid and non-assessable. Such shares are not redeemable at the option of Renasant or
holders thereof. Finally, subject to the rules of The NASDAQ Global Select Market, our board of directors may issue additional shares of our common stock or rights to purchase shares of our common stock without the approval of our shareholders.
Restrictions on Ownership
The ability of
a third party to acquire us is limited under applicable United States banking laws and regulations. The Bank Holding Company Act of 1956, as amended, or the “BHC Act,” generally prohibits any company that is not engaged in banking
activities and activities that are permissible for a bank holding company or a financial holding company from acquiring “control” of Renasant. Control is generally defined as ownership of 25% or more of the voting stock of a company, the
ability to control the election of a majority of the company’s board of directors or the other exercise of a “controlling influence” over a company. For any existing
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bank holding company, under the BHC Act such bank holding company must obtain the prior approval of the Federal Reserve Board before acquiring 5% or more of our voting stock. In addition, the
Change in Bank Control Act of 1978, as amended, prohibits a person or group of persons from acquiring “control” of a bank holding company unless the Federal Reserve Board has been notified and has not objected to the transaction. Under a
rebuttable presumption established by the Federal Reserve Board, the acquisition of 10% or more of a class of voting stock of a bank holding company with a class of securities registered under Section 12 of the Exchange Act, such as Renasant,
where no other person holds a greater percentage of that class of voting stock, constitutes acquisition of control of the bank holding company.
Anti-Takeover Provisions of Our Articles of Incorporation
Our articles of incorporation contain certain provisions that may make it more difficult to acquire control of us by means of a tender offer,
open market purchase, proxy contest or otherwise. These provisions, which are summarized below, are designed to encourage persons seeking to acquire control of us to negotiate with our directors. We believe that, as a general rule, the interests of
our shareholders are best served if any change in control results from negotiations with our directors.
Classified Board of
Directors. As described above, our board of directors is divided into three classes, with directors serving staggered three-year terms. The classification of our board of directors has the effect of making it more difficult for shareholders to
change the composition of our board of directors. At least two annual meetings of shareholders, instead of one, will generally be required to effect a change in a majority of our board of directors. We believe that this delay may help ensure that
our directors, confronted by a holder attempting to force a proxy contest, a tender or exchange offer, or an extraordinary corporate transaction, will have sufficient time to review the proposal as well as any available alternatives to the proposal
and act in what they believe to be the best interests of our shareholders. The classification provisions, however, apply to every election of directors regardless of whether a change in the composition of our board of directors would be beneficial
to us and our shareholders and whether or not a majority of our shareholders believe that such a change would be desirable.
The
classification of our board of directors could also have the effect of discouraging a third party from initiating a proxy contest, making a tender offer or otherwise attempting to obtain control of us, even though such an attempt might be beneficial
to us and our shareholders. The classification of our board of directors could thus increase the likelihood that incumbent directors will retain their positions. In addition, because the classification of our board of directors may discourage
accumulations of large blocks of our stock by purchasers whose objective is to take control of us and remove a majority of our board of directors, the classification of our board of directors could tend to reduce the likelihood of fluctuations in
the market price of our common stock that might result from accumulations of large blocks of our common stock for such a purpose. Accordingly, our shareholders could be deprived of certain opportunities to sell their shares at a higher market price
than might otherwise be the case.
Fair Price Provision. The “fair price” provision of our articles of incorporation is
described above. Subject to certain exceptions, this provision requires the approval by the holders of not less than 80% of our outstanding voting stock, and the approval by the holders of not less than 67% of our outstanding voting stock excluding
shareholders constituting a “controlling party,” of any merger, consolidation or sale or lease of all or substantially all of our assets involving the controlling party. This fair price provision makes it more difficult for a third party
to obtain approval of a business combination transaction.
Authority to Issue “Blank Check” Preferred Stock. Our
board of directors is authorized to issue, without any further approval from our shareholders, a series of preferred stock with the designations, preferences and relative participating, optional or other special rights, and the qualifications,
limitations or restrictions, as the board determines in its discretion. See “Description of Preferred Stock” below for more information about the terms of any series of preferred stock that the board may decide to issue.
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This authorization may operate to provide anti-takeover protection for us. In the event of a
proposed merger, tender offer or other attempt to gain control of us that the board of directors does not believe is in our or our shareholders’ best interests, the board has the ability to quickly issue shares of preferred stock with certain
rights, preferences and limitations that could make the proposed takeover attempt more difficult to complete. Such preferred stock may also be used in connection with the issuance of a shareholder rights plan, sometimes called a “poison
pill.”
The authorization to issue preferred stock may also benefit present management. A potential acquiror may be discouraged from
attempting a takeover because the board possesses the authority to issue preferred stock. Thus, management may be able to retain its position more easily. The board, however, does not intend to issue any preferred stock except on terms that the
board of directors deems to be in the best interest of Renasant and its shareholders.
Shareholder’s Right to Call a Special
Meeting. Our bylaws provide that a shareholder may not call a special meeting of shareholders unless such shareholder owns at least 50% of Renasant’s issued and outstanding stock. This requirement makes it more difficult for a third-party
acquiror to call a shareholders’ meeting to vote on corporate matters.
Advance Notice Requirements. Our bylaws require
a shareholder who desires to nominate a candidate for election to the board of directors or to raise new business at an annual shareholders’ meeting to provide us advance notice not earlier than 120 days and not later than 90 days before the
scheduled date of the meeting. If the date of the annual meeting is advanced by more than 30 days or delayed by more than 90 days from the anniversary date of the previous year’s meeting, to be timely a shareholder must deliver advance notice
not earlier than the 120th day prior to the annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting
is first made.
Under our bylaws, a shareholder must also provide detailed information about the nominee or business and satisfy
certain other conditions.
Amendment of Articles of Incorporation and Bylaws
Under Mississippi law, our articles of incorporation generally may be amended if the votes cast by shareholders in favor of the amendment
exceed the votes cast opposing the amendment, unless a greater number is specified in the articles of incorporation. The affirmative vote of the holders of at least 80% of the total outstanding shares of our common stock is required to amend the
provisions governing our classified board of directors and the fair price provisions of our articles of incorporation.
Our bylaws may be
amended by a majority vote of our board of directors or our shareholders.
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DESCRIPTION OF PREFERRED STOCK
This section outlines the general provisions of the shares of preferred stock, par value $0.01 per share, or “preferred stock,” that
we may offer from time to time. The applicable prospectus supplement will describe the specific terms of any series of preferred stock that we issue. The prospectus supplement will also indicate whether the terms and provisions described in this
prospectus apply to the particular series of preferred stock to which the prospectus supplement relates.
The following description of the
preferred stock, and any description of preferred stock in a prospectus supplement, is only a summary and is subject to and qualified in its entirety by reference to the articles of amendment to our articles of incorporation that our board will
adopt relating to the particular series of preferred stock, as well as to applicable provisions of our bylaws, the MBCA and other applicable provisions of Mississippi law. We will file a copy of the articles of amendment with the SEC in connection
with the sale of any series of preferred stock. You should refer to, and read this summary together with, such articles of amendment, as well as our articles of incorporation and bylaws, to understand all of the terms of any shares of preferred
stock that we may offer.
Finally, the information in “Description of Common Stock” above discussing our classified board of
directors and the anti-takeover provisions of our articles of incorporation are equally applicable to the discussion of the terms of our preferred stock.
General
Under our articles of
incorporation, our board of directors is authorized, without shareholder approval, to adopt resolutions providing for the issuance of up to 5,000,000 shares of preferred stock, in one or more series, subject to the provisions of our articles,
applicable law and the rules of The NASDAQ Global Select Market. Our board of directors may fix the designations, preferences and relative participating, optional or other special rights of, and the qualifications, limitations or restrictions of,
each series of preferred stock. As of the date of this prospectus, no series of preferred stock has been designated, and no shares of our preferred stock are issued or outstanding.
The prospectus supplement relating to a particular series of preferred stock will contain a description of the specific terms of that series,
including, as applicable:
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the title, designation and number of shares of the series of preferred stock; |
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the price at which the preferred stock will be issued; |
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the dividend rate, or the amount or method of calculation of dividends, the payment dates for dividends, whether dividends will be cumulative or non-cumulative, and, if cumulative, the date or dates from and after which
dividends will begin to accumulate; |
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whether the shares will be convertible or exchangeable into shares of our common or preferred stock, and, if so, the price and other terms and conditions of conversion or exchange; |
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whether or not the shares of preferred stock will be redeemable and, if redeemable, the redemption price (or the method for calculating the redemption price) and the other terms and conditions relating to the redemption
of the shares of preferred stock (including any restriction on redemption when the payment of dividends is in arrears); |
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the amount, if any, payable on the shares of such series of preferred stock in the event of our voluntary or involuntary liquidation, dissolution or winding up; |
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any requirements that a sinking fund or purchase fund be provided for the redemption or purchase of the shares of such series; |
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the exchange or market, if any, where the preferred stock will be listed or traded; and |
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any other powers, preferences and relative participating, optional or other special rights, or qualifications, limitations or restrictions thereon, to the extent not inconsistent with the terms of our articles of
incorporation. |
Upon the issuance and payment for shares of preferred stock, the shares will be fully paid and
nonassessable. Except as otherwise may be specified in the prospectus supplement relating to a particular series of preferred stock, holders of preferred stock will not have any preemptive or subscription rights to acquire any class or series of our
capital stock.
The rights of holders of our preferred stock may be adversely affected in the future by the rights of holders of any new
shares of preferred stock that may be issued by us in the future. Our board of directors may cause shares of preferred stock to be issued in public or private transactions for any proper corporate purposes. Proper corporate purposes include, among
other things, issuances to obtain additional financing in connection with acquisitions, in connection with a shareholders’ right plan or otherwise.
Rank
Unless otherwise specified in the
prospectus supplement relating to a particular series of preferred stock, each series of preferred stock will rank on an equal basis with each other series of our preferred stock and prior to our common stock as to dividends and any distribution of
our assets.
Dividends
Holders of
each series of preferred stock will be entitled to receive cash dividends only if, as and when declared by our board of directors out of funds legally available for dividends. The prospectus supplement will describe the dividend rates and the dates
on which we will pay dividends as to each series of preferred stock. Dividends on any series of preferred stock may be fixed or variable, or both, and may be cumulative or non-cumulative, in each case as described in the applicable prospectus
supplement.
Our board of directors may not declare, pay or set apart funds for payment of dividends on a particular series of preferred
stock unless full dividends on any other series of preferred stock that ranks equally with or senior to such series of preferred stock have been paid or sufficient funds have been set aside for payment. If dividends are not paid in full to each
series of preferred stock, we will declare any dividends pro rata among the preferred stock of each series and any series of preferred stock that ranks equally with or senior to such series of preferred stock. A “pro rata” declaration
means that the dividends we declare per share on each series of preferred stock will bear the same relationship to each other that the full accrued dividends per share on each series of the preferred stock bear to each other.
Unless all dividends on the preferred stock of each series issued have been paid in full, we will not declare or pay any dividends, or set
aside sums for payment of dividends or distributions, on any common stock or on any class of security ranking junior to a series of preferred stock, except for dividends or distributions paid in the form of securities ranking junior to the preferred
stock. We will also not redeem, purchase or otherwise acquire any securities ranking junior to a series of preferred stock as to dividends or liquidation preferences, except by conversion into or exchange for stock ranking junior to the series of
preferred stock.
Conversion or Exchange
The applicable prospectus supplement for any series of preferred stock will state the terms, if any, on which shares of that series are
convertible or exchangeable into shares of our common stock or another series of our preferred stock. The terms of any such conversion or exchange (and any such preferred stock issuable in connection therewith) will be described in the prospectus
supplement relating to such series of preferred stock.
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Redemption
If so specified in the applicable prospectus supplement, a series of preferred stock may be redeemable at any time, in whole or in part, at our
option or at the option of the holder thereof, and may be mandatorily redeemable or convertible. The applicable prospectus supplement will describe the restrictions, if any, on the repurchase or redemption by us of any series of our preferred stock.
Any partial redemptions of preferred stock will be made in a way that our board of directors decides is equitable.
On the redemption date
of shares of preferred stock called for redemption or upon our earlier call and deposit of the redemption price, all rights of holders of the preferred stock called for redemption will terminate, except for the right to receive the redemption price.
Liquidation Preference
In the event
of our liquidation, dissolution or winding up, whether voluntary or involuntary, holders of each series of preferred stock will have the right to receive distributions upon liquidation in the amount described in the applicable prospectus supplement
relating to each series of preferred stock, plus an amount equal to any accrued but unpaid dividends. These distributions will be made before any distribution is made on our common stock or on any securities ranking junior to such preferred stock.
If the liquidation amounts payable to holders of preferred stock of all series ranking on a parity regarding liquidation are not paid in
full, the holders of the preferred stock of these series will have the right to a pro rata portion of our available assets up to the full liquidation preference. Holders of these series of preferred stock or such other securities will not be
entitled to any other amounts from us after they have received their full liquidation preference.
Voting Rights
The holders of shares of preferred stock will have no voting rights, except:
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as otherwise stated in the applicable prospectus supplement; |
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as otherwise stated in the articles of amendment to our articles of incorporation establishing the series of such preferred stock; and |
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as required by applicable law. |
Under regulations adopted by the Federal Reserve Board, if the
holders of the preferred stock of any series become entitled to vote for the election of directors, whether because dividends on the preferred stock of such series are in arrears or otherwise, preferred stock of such series could be deemed a
“class of voting securities.” In this instance, a holder of 25% or more of the preferred stock of such series likely would then be subject to regulation as a bank holding company in accordance with the BHC Act. In addition, a holder of
such series that exercises a “controlling influence” over us, as determined by the Federal Reserve Board based on the holder’s total equity investment and other relevant facts and circumstances, could also be subject to regulation
under the BHC Act. To the extent a series of the preferred stock is deemed a class of voting securities, acquisitions of shares of such series of preferred stock may be subject to the requirements described above under the heading “Description
of Common Stock—Restrictions on Ownership.”
Transfer Agent and Registrar
The applicable prospectus supplement will name the transfer agent, registrar, dividend paying agent and depositary, if any, for shares of each
series of preferred stock.
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DESCRIPTION OF DEPOSITARY SHARES
The terms of any depositary shares and any depositary receipts that we offer for sale and any deposit agreement relating to a particular
series of preferred stock will be described in more detail in a prospectus supplement. The prospectus supplement will also state whether any of the provisions summarized below do not apply to the depositary shares or depositary receipts being
offered. The summary of terms of the depositary shares contained in this prospectus is not complete. You should refer to the form of the deposit agreement and the articles of amendment to our articles of incorporation for the applicable series of
preferred stock that are, or will be, filed with the SEC.
General
We may elect to offer fractional shares of preferred stock, rather than full shares of preferred stock. In such event, we will issue receipts
for depositary shares, each of which will represent a fraction of a share of a particular series of preferred stock.
The shares of
preferred stock underlying the depositary shares will be deposited with a bank or trust company selected by us to act as depositary, which we refer to in this prospectus as the “depositary,” under a deposit agreement between us, the
depositary and the holders of the depositary receipts. We will identify the depositary in the applicable prospectus supplement. The depositary will be the transfer agent, registrar and dividend disbursing agent for the depositary shares. Subject to
the terms of the deposit agreement, each owner of a depositary share will be entitled to all the rights and preferences of the underlying preferred stock, including dividend, voting, redemption, conversion and liquidation rights, in proportion to
the applicable fraction of a share of preferred stock represented by such depositary share. If necessary, the prospectus summary will also provide a description of the U.S. federal income tax consequences relating to the purchase and ownership of
the series of depositary shares offered by that prospectus supplement.
The depositary shares will be evidenced by depositary receipts
issued pursuant to the deposit agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the applicable prospectus supplement. While the final depositary
receipts are being prepared, we may order the depositary to issue temporary depositary receipts substantially identical to the final depositary receipts although not in final form. The holders of the temporary depositary receipts will be entitled to
the same rights as if they held the depositary receipts in final form. Holders of the temporary depositary receipts can exchange them for the final depositary receipts at our expense.
Dividends and Other Distributions
The
preferred stock depositary will distribute all cash dividends or other cash distributions received in respect of the deposited preferred stock to the record holders of depositary shares relating to such preferred stock in proportion to the number of
such depositary shares owned by such holders.
The preferred stock depositary will distribute any property received by it other than cash
to the record holders of depositary shares entitled thereto. If the preferred stock depositary determines that it is not feasible to make such distribution, it may, with our approval, sell such property and distribute the net proceeds from such sale
to such holders.
Redemption of Preferred Stock
If a series of preferred stock represented by depositary shares is to be redeemed, the depositary shares will be redeemed from the proceeds
received by the preferred stock depositary resulting from the redemption, in whole or in part, of such series of preferred stock. The depositary shares will be redeemed by the preferred stock depositary at a price per depositary share equal to the
applicable fraction of the redemption price per share payable in respect of the shares of preferred stock so redeemed.
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Whenever we redeem shares of preferred stock held by the preferred stock depositary, the
preferred stock depositary will redeem as of the same date the number of depositary shares representing the shares of preferred stock so redeemed. If fewer than all the depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by the preferred stock depositary by lot or ratably or by any other equitable method as the preferred stock depositary may decide.
Withdrawal of Preferred Stock
Unless the
related depositary shares have previously been called for redemption, any holder of depositary shares may receive the number of whole shares of the related series of preferred stock and any money or other property represented by such depositary
receipts after surrendering the depositary receipts at the corporate trust office of the preferred stock depositary. Holders of depositary shares making such withdrawals will be entitled to receive whole shares of preferred stock on the basis set
forth in the related prospectus supplement for such series of preferred stock.
However, holders of such whole shares of preferred stock
will not be entitled to deposit such preferred stock under the deposit agreement or to receive depositary receipts for such preferred stock after such withdrawal. If the depositary shares surrendered by the holder in connection with such withdrawal
exceed the number of depositary shares that represent the number of whole shares of preferred stock to be withdrawn, the preferred stock depositary will deliver to such holder at the same time a new depositary receipt evidencing such excess number
of depositary shares.
Voting Deposited Preferred Stock
Upon receipt of notice of any meeting at which the holders of any series of deposited preferred stock are entitled to vote, the preferred stock
depositary will mail the information contained in such notice of meeting to the record holders of the depositary shares relating to such series of preferred stock. Each record holder of such depositary shares on the record date will be entitled to
instruct the preferred stock depositary to vote the amount of the preferred stock represented by such holder’s depositary shares. The preferred stock depositary will seek to vote the amount of such series of preferred stock represented by such
depositary shares in accordance with such instructions.
We will agree to take all reasonable actions that the preferred stock depositary
determines are necessary to enable the preferred stock depositary to vote as instructed. The preferred stock depositary will vote all shares of any series of preferred stock held by it proportionately with instructions received if it does not
receive specific instructions from the holders of depositary shares representing such series of preferred stock.
Amendment and Termination of the
Deposit Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the deposit agreement may at
any time be amended by agreement between us and the preferred stock depositary. However, any amendment that materially and adversely alters the rights of the holders of depositary shares, other than fee changes, will not be effective unless the
amendment has been approved by at least a majority of the outstanding depositary shares. Every holder of an outstanding depositary receipt at the time any such amendment becomes effective, or any transferee of such holder, shall be deemed, by
continuing to hold such depositary receipt, or by reason of the acquisition thereof, to consent and agree to such amendment and to be bound by the deposit agreement that has been amended thereby.
The deposit agreement will automatically terminate if:
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all outstanding depositary shares have been redeemed; |
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each share of preferred stock has been converted into or exchanged for common stock; or |
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a final distribution in respect of the preferred stock has been made to the holders of depositary shares in connection with any liquidation, dissolution or winding up of the Company. |
We may terminate the deposit agreement at any time, and the preferred stock depositary will give notice of such termination to the record
holders of all outstanding depositary receipts not less than 30 days prior to the termination date. In such event, the preferred stock depositary will deliver or make available for delivery to holders of depositary shares, upon surrender of such
depositary shares, the number of whole or fractional shares of the related series of preferred stock as are represented by such depositary shares.
Charges of Preferred Stock Depositary; Taxes and Other Governmental Charges
No fees, charges or expenses of the preferred stock depositary or any agent of the preferred stock depositary or of any registrar shall be
payable by any person other than the Company, except for any taxes and other governmental charges and except as provided in the deposit agreement. If the preferred stock depositary incurs fees, charges or expenses for which it is not otherwise
liable hereunder at the election of a holder of a depositary receipt or other person, such holder or other person will be liable for such fees, charges and expenses.
Resignation and Removal of Depositary
The preferred stock depositary may resign at any time by delivering to us notice of its intent to do so, and we may at any time remove the
preferred stock depositary, any such resignation or removal to take effect upon the appointment of a successor preferred stock depositary and its acceptance of such appointment. The successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having the requisite combined capital and surplus as set forth in the applicable agreement.
Miscellaneous
The preferred stock
depositary will forward to the holders of depositary shares all reports and communications from us that are delivered to the preferred stock depositary and that we are required to furnish to the holders of the deposited preferred stock.
Neither the preferred stock depositary nor the Company will be liable if it is prevented or delayed by law or any circumstances beyond its
control in performing its obligations under the deposit agreement. The obligations of the Company and the preferred stock depositary under the deposit agreement will be limited to performance with honest intentions of their duties thereunder, and
they will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares, depositary receipts or shares of preferred stock unless satisfactory indemnity is furnished. The Company and the preferred stock depositary
may rely upon written advice of counsel or accountants or upon information provided by holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
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DESCRIPTION OF DEBT SECURITIES
We may offer from time to time debt securities in the form of either senior debt securities, subordinated debt securities or junior
subordinated debt securities. Unless otherwise specified in a prospectus supplement, the debt securities will be our direct, unsecured obligations and will rank equally with all of our other unsecured and unsubordinated indebtedness. We will issue
debt securities under one or more separate indentures between us and a trustee to be identified in the applicable prospectus supplement.
The following summary of the general terms and provisions of the indenture is not complete (the text below refers to both indentures as the
form of “indenture”). Forms of indentures for senior indebtedness and subordinated indebtedness are included as exhibits to the registration statement of which this prospectus forms a part. The indentures are substantially identical except
as described below under “Subordinated Debt Securities” in this section. You should read the indentures for provisions that may be important to you.
When we offer to sell a particular series of debt securities, the prospectus supplement will describe the specific terms of the series, and it
will also address whether the general terms and provisions described below apply to the particular series of debt securities. Capitalized terms used in the summary have the meanings specified in the forms of indenture.
General
Unless otherwise provided in a
supplemental indenture, our board of directors will set the particular terms of each series of debt securities, which will be described in a prospectus supplement relating to such series. We can issue an unlimited amount of debt securities under the
indenture, in one or more series with the same or various maturities, at par, at a premium or at a discount. Among other things, the prospectus supplement relating to a series of debt securities being offered will address the following terms of the
debt securities:
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the title of the debt securities; |
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the price(s), expressed as a percentage of the principal amount, at which we will sell the debt securities; |
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whether the debt securities will be senior or subordinated, and, if subordinated, any such provisions that are different from those described below under “Subordinated Debt Securities”; |
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any limit on the aggregate principal amount of the debt securities; |
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the date(s) when principal payments are due on the debt securities; |
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the interest rate(s) on the debt securities, which may be fixed or variable, per annum or otherwise, and the method used to determine the rate(s), the dates on which interest will begin to accrue and be payable, and any
regular record date for the interest payable on any interest payment date; |
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the place(s) where principal of, premium and interest on the debt securities will be payable; |
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provisions governing redemption of the debt securities, including any redemption or purchase requirements pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities, and the
redemption price and other detailed terms and provisions of such repurchase obligations; |
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the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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the portion of the principal of the debt securities payable upon declaration of acceleration of the maturity date, if other than the entire principal amount; |
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any additional or modified events of default from those described in this prospectus or in the indenture and any change in the acceleration provisions described in this prospectus or in the indenture; |
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any additional or modified covenants from those described in this prospectus or in the indenture with respect to the debt securities; |
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; and |
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any other specific terms of such debt securities. |
In addition, we may issue convertible debt
securities. Any conversion provisions of a particular series of debt securities will be set forth in the officer’s certificate or supplemental indenture related to that series of debt securities and will be described in the relevant prospectus
supplement. To the extent applicable, conversion may be mandatory, at the option of the holder or at our option, in which case the number of shares of common or preferred stock to be received upon conversion would be calculated as of a time and in
the manner stated in the prospectus supplement.
The applicable prospectus supplement will provide an overview of the U.S. federal income
tax considerations and other special considerations applicable to any debt securities we offer for sale.
Transfer and Exchange
As described in the applicable prospectus supplement, each debt security will be represented by either a certificate issued in definitive
registered form (we will refer to any debt security represented by a certificated security as a “certificated debt security”) or one or more global securities registered in the name of a depositary, or its nominee (we will refer to any
debt security represented by a global debt security as a “book-entry debt security”), in the aggregate principal amount of the series of debt securities. Except as described below under the heading “Global Debt Securities and
Book-Entry System,” book-entry debt securities will not be certificated.
Certificated Debt Securities
You can transfer certificated debt securities (and the right to receive the principal of, premium and interest thereon) only by surrendering
the certificate representing those certificated debt securities. Either we or the trustee will reissue the existing certificate, or issue a new certificate, to the new holder.
You may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the
indenture. There is no service charge, but we may require payment of a sum sufficient to cover any taxes or other governmental charges payable in connection with a transfer or exchange.
Global Debt Securities and Book-Entry System
Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, The Depository Trust Company (which
we refer to below as “DTC” or the “depositary”), as the depositary, and registered in its (or its nominee’s) name. DTC is a limited-purpose trust company and a “banking organization” organized under New York law, a
member of the Federal Reserve System, a “clearing corporation” within in the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to Section 17A of the Exchange Act. We understand that
DTC intends to follow the following procedures with respect to book-entry debt securities.
Ownership of beneficial interests in
book-entry debt securities will be limited to “participants” or persons that may hold interests through participants (sometimes called “indirect participants”). A participant is a person having an account with the depositary for
the related global debt security, typically broker-dealers, banks, trust companies, clearing corporations and certain other organizations. Upon the issuance of a global debt security, the
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depositary will credit the participants’ accounts on its book-entry registration and transfer system with the respective principal amounts of the book-entry debt securities owned by such
participants; the depositary will have no knowledge of the underlying beneficial owners of the book-entry debt securities owned by participants. Any dealers, underwriters or agents participating in the distribution of the book-entry debt securities
will designate accounts to be credited. Ownership of book-entry debt securities will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the depositary for the related global debt security
(with respect to interests of participants) and on the records of participants (with respect to interests of indirect participants). Some states may legally require certain purchasers to take physical delivery of such securities, which may impair
your ability to own, transfer or pledge beneficial interests in book-entry debt securities.
So long as DTC (or its nominee) is the
registered owner of a global debt security, DTC or its nominee, as the case may be, will be considered the sole owner or holder of the book-entry debt securities represented by such global debt security for all purposes under the indenture. This
means that, except as described below, beneficial owners of book-entry debt securities will not be entitled to have securities registered in their names or to receive physical delivery of a certificate in definitive form nor will such beneficial
owners be considered the owners or holders of those securities under the indenture. Accordingly, to exercise any rights of a holder under the indenture each person beneficially owning book-entry debt securities must rely on DTC’s procedures for
the related global debt security and, if such person is not a participant, on the procedures of the participant through which such person owns its interest. As a beneficial owner of book-entry debt securities, information regarding your holdings
will come through the participant, or indirect participant, through which you own such securities.
Notwithstanding the above, under
existing industry practice, the depositary may authorize persons on whose behalf it holds a global debt security to exercise certain of a holder’s rights. For purposes of obtaining any consents or directions required to be given by holders of
the debt securities under the indenture, we, the trustee and our respective agents will treat as the holder of a debt security any persons specified in a written statement of the depositary with respect to that global debt security.
All payments of principal of, and premium and interest on, book-entry debt securities will be paid to DTC (or its nominee) as the registered
holder of the related global debt security, and any redemption notices will be sent directly to DTC. Neither we, the trustee nor any other agent of ours or agent of the trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a global debt security or for maintaining, supervising or reviewing any records relating to beneficial ownership interests. We expect DTC, upon receipt of any payment of
principal of, premium or interest on a global debt security, to immediately credit participants’ accounts with payments ratably according to the respective amounts of book-entry debt securities held by each participant. We also expect that
payments by participants to owners of beneficial interests in book-entry debt securities held through those participants will be governed by standing customer instructions and customary practices, similar to those for securities held in “street
name.”
We will issue certificated debt securities in exchange for each global debt security if the depositary at any time cannot or
will not continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and we fail to appoint a successor depositary registered as a clearing agency under the Exchange Act within 90 days. In addition, we may at any time
and in our sole discretion decide not to have the book-entry debt securities represented by global debt securities; in that event, we will issue certificated debt securities in exchange for the global debt securities of that series. If an event of
default with respect to the book-entry debt securities represented by those global debt securities has occurred and is continuing, holders may exchange global debt securities for certificated debt securities.
We have obtained the foregoing information concerning DTC and its book-entry system from sources we believe to be reliable, but we take no
responsibility for the accuracy of this information.
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No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus supplement, the debt securities will not contain any provisions affording holders of the
debt securities protection, such as prior consent or acceleration rights, in the event we agree to a change in control or a highly leveraged transaction (whether or not such transaction results in a change in control), which could adversely affect
holders of debt securities.
Covenants
The applicable prospectus supplement will describe any restrictive covenants applicable to any debt securities we offer for sale.
Consolidation, Merger and Sale of Assets
We may not consolidate or merge with, or sell or lease all or substantially all of our properties and assets to, any person, which we refer to
as a “successor,” unless:
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we are the surviving corporation or the successor (if not us) is a corporation organized and existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and
under the indenture; |
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immediately after giving effect to the transaction, no event of default, and no event which after the giving of notice or lapse of time or both, would become an event of default, shall have occurred and be continuing
under the indenture; and |
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certain other conditions are met. |
Events of Default
For any series of debt securities, in addition to any event of default described in the prospectus supplement applicable to that series, an
event of default will include the following events:
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default in the payment when due of any installment of interest on any debt security of that series, which default is not cured within 30 days (unless we deposit the entire amount of the interest installment with the
trustee or with a paying agent prior to the expiration of this 30-day period); |
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default in the payment when due of principal of or premium on any debt security of that series; |
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default in the deposit when due of any sinking fund payment in respect of any debt security of that series; |
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our breach of any covenant or warranty in the indenture (other than a covenant or warranty included in the indenture solely for the benefit of a series of debt securities other than that series), which breach is not
cured within 60 days after delivery of written notice thereof from the trustee to us or from the holders of at least a majority in principal amount of the outstanding debt securities of that series to us or the trustee, as provided in the indenture;
and |
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certain events of bankruptcy, insolvency or reorganization involving us. |
The applicable prospectus supplement
will explain whether or not an event of default with respect to one series of debt securities will constitute a cross-default with respect to any other series of debt securities (except that certain events of bankruptcy, insolvency or reorganization
will always constitute cross-defaults).
If an event of default with respect to any outstanding debt securities occurs and is continuing,
then the trustee or the holders of at least a majority in principal amount of the outstanding debt securities of that series may, by written notice to us (and to the trustee if given by the holders), accelerate the payment of the principal (or, if
the debt securities of that series are discount securities, that portion of the principal amount as may be
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specified in the terms of that series) of and accrued and unpaid interest, if any, on all debt securities of that series. Such acceleration is automatic (without no notice required) in the case
of an event of default resulting from certain events of bankruptcy, insolvency or reorganization. Following acceleration, Payments on our subordinated debt securities, if any, will be subject to the subordination provisions described below under
“Subordinated Debt Securities.” At any time after acceleration with respect to debt securities of any series, but before the trustee has obtained a court judgment or decree for payment of the amounts due, the holders of a majority in
principal amount of the outstanding debt securities of that series may rescind and annul the acceleration if all events of default, other than the non-payment of accelerated principal and interest, if any, with respect to debt securities of that
series, have been cured or waived as provided in the indenture. The prospectus supplement relating to any series of debt securities that are discount securities will contain particular provisions relating to acceleration of a portion of the
principal amount of such discount securities upon the occurrence of an event of default.
The indenture provides that the trustee will be
under no obligation to exercise any rights or powers under the indenture at the request of any holder of outstanding debt securities unless the trustee is indemnified against any loss, liability or expense. Subject to certain rights of the trustee,
the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or
power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security may institute any
proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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that holder has previously given to the trustee written notice of a continuing event of default with respect to debt securities of that series; and |
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the holders of at least a majority in principal amount of the outstanding debt securities of that series have requested the trustee in writing (and offered reasonable indemnity to the trustee) to institute the
proceeding (and have not subsequently given contrary instructions), and the trustee has failed to institute the proceeding within 60 days. |
Notwithstanding the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the
principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Under the indenture we must furnish the trustee a statement as to compliance with the indenture within 120 days after the end of our fiscal
year. The indenture provides that, other than with respect to payment defaults, the trustee may withhold notice to the holders of debt securities of any series of a default or event of default if it in good faith determines that withholding notice
is in the interest of the holders of those debt securities.
Modification and Waiver
We may amend the indenture if the holders of at least a majority in principal amount of the outstanding debt securities of each series affected
by the modifications or amendments consent thereto. We may not make any amendment without the consent of the specific holder of an affected debt security then outstanding if that amendment will:
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reduce the amount of such holders’ debt securities; |
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reduce the interest rate of, or extend the time for payment of, interest (including default interest) on any debt security; |
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reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund with respect to any series of debt
securities; |
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reduce the principal amount of discount securities payable upon acceleration of maturity; |
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waive a payment default on any debt security (except a rescission of acceleration by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver
of the payment default that resulted from such acceleration); |
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make any payment on any debt security in currency other than that stated in the debt security; |
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adversely affect the right to convert any debt security; |
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make any change to certain provisions of the indenture relating to, among other things, holders’ rights to receive payment of the principal of, premium and interest on those debt securities and to institute suit
for the enforcement of any such payment and to waivers or amendments; or |
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waive a redemption payment with respect to any debt security. |
Except for certain specified
provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series may on behalf of all holders waive our compliance with provisions of the indenture. The holders of a majority in principal amount of
the outstanding debt securities of any series may on behalf of all holders waive any past default under the indenture with respect to that series and its consequences, except a payment default or a default of a covenant or provision which cannot be
modified or amended without the consent of the holder of each outstanding debt security of the series affected; provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may rescind an
acceleration and its consequences, including any related payment default that resulted from the acceleration.
Defeasance of Debt Securities and
Certain Covenants in Certain Circumstances
Legal Defeasance
We may deposit with the trustee, in trust, cash or cash equivalents in an amount that, through the payment of interest and principal in
accordance with their terms, is sufficient in the opinion of our independent public accountants to make all payments of principal, premium and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on
the due dates for such payments in accordance with the terms of the indenture and those debt securities. If we make such a deposit, unless otherwise provided under the applicable series of debt securities, we will be discharged from any and all
obligations in respect of the debt securities of such series (except for obligations relating to the transfer or exchange of debt securities and the replacement of stolen, lost or mutilated debt securities and relating to maintaining paying agencies
and the treatment of funds held by paying agents). However, this discharge may occur only if, among other things, we have delivered to the trustee a legal opinion stating that we have received from, or there has been published by, the United States
Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and, based thereon confirming that, the holders of the debt
securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts and in the same manner and
at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants
Under the indenture (and unless otherwise provided by the terms of the applicable series of debt securities), upon making the deposit and
delivering the legal opinion described in “Legal Defeasance” above, we will not need to comply with the covenants described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the
indenture, as well as any additional covenants that may be set forth in the applicable prospectus supplement, and any such noncompliance will not constitute a default or an event of default with respect to the debt securities of that series, or
covenant defeasance.
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Covenant Defeasance and Events of Default
If we exercise our option to effect covenant defeasance with respect to any series of debt securities and the debt securities of that series
are declared due and payable because of the occurrence of any event of default, the amounts on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be
sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from the event of default. We will remain liable for those payments.
The Trustee
The indentures limit the
right of the trustee, should it become a creditor of us, to obtain payment of claims or secure its claims. The trustee is permitted to engage in certain other transactions. However, if the trustee acquires any conflicting interest, and there is a
default under the debt securities of any series for which it is trustee, the trustee must eliminate the conflict or resign.
Subordinated Debt
Securities
The indenture will govern the extent to which payment on any subordinated debt securities will be subordinated to the prior
payment in full of all of our senior indebtedness. The subordinated debt securities also are effectively subordinated to all debt and other liabilities, including trade payables and lease obligations, if any, of our subsidiaries.
Upon any distribution of our assets upon any dissolution, winding up, liquidation or reorganization, the payment of principal and interest on
subordinated debt securities will be subordinated to the prior payment in full of all senior indebtedness in cash or other payment satisfactory to the holders of such senior indebtedness. If subordinated debt securities are accelerated because of an
event of default, the holders of any senior indebtedness would be entitled to payment in full in cash or other payment satisfactory to such holders of all senior indebtedness obligations before the holders of the subordinated debt securities are
entitled to receive any payment or distribution. The indenture requires us or the trustee to promptly notify holders of designated senior indebtedness of any acceleration of payment of the subordinated debt securities.
We may not make any payment on the subordinated debt securities, including upon redemption (whether at the holder’s or our option) if:
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a default in the payment of the principal, premium, if any, interest, rent or other obligations in respect of designated senior indebtedness occurs and is continuing beyond any applicable grace period (called a
“payment default”); or |
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a default (other than a payment default) that permits holders of designated senior indebtedness to accelerate its maturity occurs and is continuing, and the trustee receives a notice of such default (called a
“payment blockage notice”) from us or any other person permitted to give such notice under the indenture (called a “non-payment default”). |
We may resume payments and distributions on the subordinated debt securities, in the case of a payment default, upon the date on which such
default is cured or waived or ceases to exist; and, in the case of a non-payment default, the earlier of the date on which such nonpayment default is cured or waived and 179 days after the date on which the payment blockage notice is received, if
the maturity of the designated senior indebtedness has not been accelerated.
No new payment blockage period may be commenced pursuant to
a payment blockage notice unless 365 days have elapsed since the initial effectiveness of the immediately prior payment blockage notice and all scheduled payments, including any liquidated damages, on the debt securities that have come due have been
paid in full in cash. Generally, a non-payment default existing or continuing on the date of delivery of any payment blockage notice cannot be the basis for any later payment blockage notice.
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If the trustee or any holder of the notes receives any payment or distribution of our assets in
contravention of the foregoing subordination provisions, then such payment or distribution will be held in trust for the benefit of holders of senior indebtedness or their representatives to the extent necessary to make payment in full in cash or
payment satisfactory to the holders of senior indebtedness of all unpaid senior indebtedness.
In the event of our bankruptcy, dissolution
or reorganization, holders of senior indebtedness may receive more, ratably, and holders of the subordinated debt securities may receive less, ratably, than our other creditors (including our trade creditors). This subordination will not prevent the
occurrence of any event of default under the indenture.
The indenture does not prohibit us from incurring debt, including senior
indebtedness. We may from time to time incur additional debt, including senior indebtedness.
We are obligated to pay reasonable
compensation to the trustee and to indemnify it against certain losses, liabilities or expenses it incurs in connection with its duties relating to the subordinated debt securities. The trustee’s claims for these payments will generally be
senior to those of noteholders in respect of all funds collected or held by the trustee.
Certain Definitions
“indebtedness” means:
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all indebtedness, obligations and other liabilities for borrowed money, including overdrafts, currency exchange agreements, interest rate protection agreements, and any loans or advances from banks, or evidenced by
bonds, debentures, notes or similar instruments, other than any account payable or other accrued current liability or obligation incurred in the ordinary course of business; |
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all reimbursement obligations and other liabilities with respect to letters of credit, bank guarantees or bankers’ acceptances; |
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all obligations and liabilities under leases required by generally accepted accounting principles to be accounted for as capitalized lease obligations on our balance sheet; |
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all obligations and other liabilities under any real property lease or related document which contractually obligates us to purchase or cause a third party to purchase the leased property and thereby guarantee a minimum
residual value of the leased property to the lessor; |
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all obligations under interest rate or other swaps, caps or collar agreements or other similar instruments or agreements; |
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all direct or indirect guaranties or similar agreements in respect of indebtedness, obligations or liabilities of others of the type described in (1) through (5) above; |
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any indebtedness or other obligations described in (1) through (6) above secured by any mortgage, pledge, lien or other encumbrance existing on property which we own or hold; and |
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any and all refinancings, replacements, deferrals, renewals, extensions and refundings of, or amendments, modifications or supplements to, any indebtedness or other obligation described in clauses (1) through
(7) above. |
“senior indebtedness” means the principal, premium, if any, interest, including any interest
accruing after bankruptcy, and rent or termination payment on or other amounts due on our current or future indebtedness, whether created, incurred, assumed, guaranteed or in effect guaranteed by us, including any deferrals, renewals, extensions,
refundings, amendments, modifications or supplements to the above. Senior indebtedness does not include:
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indebtedness that expressly provides that it shall not be senior in right of payment to subordinated debt securities or expressly provides that it is on the same basis or junior to subordinated debt securities; and
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our indebtedness to any of our majority-owned subsidiaries. |
Governing Law
Unless otherwise set forth in the prospectus supplement applicable to the particular series of debt securities, the indenture and the debt
securities will be governed by, and construed in accordance with, the laws of the State of Mississippi.
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DESCRIPTION OF RIGHTS
This section describes the general terms and provisions of the rights to securities that we may offer to our shareholders. Rights may be
issued independently or together with any other offered security and may or may not be transferable by the person purchasing or receiving the rights. In connection with any rights offering to our shareholders, we may enter into a standby
underwriting or other arrangement with one or more underwriters or other persons pursuant to which such underwriters or other person would purchase any offered securities remaining unsubscribed for after such rights offering.
Each series of rights will be issued under a separate rights agent agreement to be entered into between us and a bank or trust company, as
rights agent, that we will name in the applicable prospectus supplement. The rights agent will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation or
relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights.
The description in the
applicable prospectus supplement and other offering material of any rights we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable rights agent agreement, which will be filed with the SEC if we
offer rights. For more information on how you can obtain copies of the applicable rights agent agreement if we offer rights, see “Where You Can Find More Information.” We urge you to read the applicable rights agent agreement and the
applicable prospectus supplement and any other offering material in their entirety.
The prospectus supplement relating to any rights we
offer will include specific terms relating to the offering, including, among others, the date of determining the shareholders entitled to the rights distribution, the aggregate number of rights issued and the aggregate amount of securities
purchasable upon exercise of the rights, the exercise price, the conditions to completion of the offering, the date on which the right to exercise the rights will commence and the date on which the right will expire, and any applicable U.S. Federal
income tax considerations. To the extent that any particular terms of the rights, rights agent agreement or rights certificates described in a prospectus supplement differ from any of the terms described here, then the terms described here will be
deemed to have been superseded by that prospectus supplement.
Each right entitles the holder of the rights to purchase for cash the
principal amount of securities at the exercise price set forth in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration date for the rights provided in the applicable prospectus
supplement. After the close of business on the expiration date, all unexercised rights become void and of no further force or effect.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly
completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the securities purchasable upon exercise of the rights. If less than
all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than shareholders, to or through agents, underwriters or dealers or through a combination of such methods, including
pursuant to standby arrangements, as described in the applicable prospectus supplement.
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DESCRIPTION OF WARRANTS
In this section, we describe the general terms and provisions of the warrants that we may offer from time to time. We will issue each series
of warrants under a separate warrant agreement to be entered into between us and a warrant agent who will be specified in the warrant agreement and in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection
with the warrants of that series and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants.
The following description of the warrants we offer, and any description of such warrants in a prospectus supplement, is only a summary and is
qualified in its entirety by reference to the applicable warrant agreement and related warrant certificate, both of which we will file with the SEC in connection with any offers of warrants. You should refer to, and read this summary and the
prospectus supplement together with, the warrant agreement, including the forms of warrant certificates representing the warrants, relating to the specific warrants that we may offer, to understand all of the terms of the warrant agreement and the
warrants.
General
We may issue
warrants for the purchase of common stock, preferred stock or warrants to purchase other securities. Warrants may be issued independently or together with debt securities or capital stock offered by any prospectus supplement and may be attached to
or separate from any such offered securities. The applicable prospectus supplement related to an issuance of warrants will describe the terms of such warrants, including the following, as applicable:
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the title of the warrants; |
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the total number of warrants to be issued; |
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the price or prices at which we will issue the warrants; |
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the designation, amount and terms of the securities purchasable upon exercise of the warrants and the exercise price for such securities; |
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the date on which the right to exercise the warrants will commence and the date on which such right will expire; |
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the procedures and conditions relating to the exercise of the warrants; |
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the minimum or maximum amount of warrants that may be exercised at any one time; |
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anti-dilution and any other provisions to adjust the number or amount of securities to be delivered upon exercise of the warrants; |
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the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable; |
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whether the warrants will be in registered or bearer form; |
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information with respect to book-entry registration and transfer procedures, if any; |
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a discussion of material considerations relating to U.S. federal income tax laws and the federal Employee Retirement Income Security Act of 1974, as amended; |
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the identity of the warrant agent; and |
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any other terms of the warrants. |
Prior to the exercise of their warrants, holders of warrants exercisable for
shares of common stock or preferred stock will not have any rights of holders of the common stock, preferred stock or other securities purchasable upon such exercise, including any rights to vote such shares or to receive any distributions or
dividends thereon.
Warrant certificates may be exchanged for new warrant certificates of different denominations.
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Exercise of Warrants
Each warrant will entitle the holder to purchase the number of shares of preferred stock or common stock or such other securities for cash at
the exercise price stated in, or calculable as described in, the applicable prospectus supplement and warrant agreement. Warrants may be exercised at the warrant agent’s corporate trust office or any other office indicated in the applicable
prospectus supplement and otherwise in accordance with the procedures set forth in the applicable prospectus supplement. Upon the proper exercise of the warrants and our receipt of the full exercise price, we will, as soon as practicable, forward
the purchased securities. If less than all of the warrants are exercised, a new warrant certificate will be issued for the remaining warrants.
Warrants may be exercised at any time prior to the close of business on the expiration date. After the close of business on the expiration
date (or such later date to which we may extend the expiration date of the warrants), unexercised warrants will be void and have no further force, effect or value.
Enforceability of Rights; Governing Law
The holders of warrants, without the consent of the warrant agent, may, on their own behalf and for their own benefit, enforce, and may
institute and maintain any suit, action or proceeding against us to enforce, their rights to exercise and receive the securities purchasable upon exercise of their warrants. Unless otherwise stated in the applicable prospectus supplement, each issue
of warrants and the applicable warrant agreement will be governed by the laws of the State of Mississippi.
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DESCRIPTION OF UNITS
This section outlines the general terms and provisions of the units that we may offer from time to time. We may issue units comprising one or
more of the securities described in this prospectus in any combination. The applicable prospectus supplement will describe the specific terms and conditions of any units that we issue.
We will issue each unit so that the holder of the unit also is the holder of each security included in the unit. Thus, the holder of a unit
will have the rights and obligations of a holder of each included security. A unit agreement will govern the terms of any units we issue. This unit agreement may provide that the securities included in the unit may not be held or transferred
separately at any time or before a specified date. There may or may not be an active market for units or the underlying securities, and not all the securities comprising a unit may be listed or traded on a securities exchange or market.
Among other things, the prospectus supplement relating to any units that we issue will specify the following terms of such units:
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the terms of the units, and the terms of any of the common stock, preferred stock, debt securities and warrants comprising the units, including whether and under what circumstances the units may be traded separately;
|
| |
• |
|
a description of the terms of any unit agreement governing the units; |
| |
• |
|
a description of the provisions for payment, settlement, transfer or exchange of the units or the securities comprising the units; and |
| |
• |
|
whether the units will be issued fully registered or in global form. |
You should note that the
description of any units we offer in the applicable prospectus supplement will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit agreement, which we will file with the SEC in connection with any
offer of units. We urge you to read the applicable unit agreement and the applicable prospectus supplement in their entirety.
33
PLAN OF DISTRIBUTION
General
We may sell the securities
covered by this prospectus inside and outside the United States from time to time through one or more underwriters, dealers or agents, directly to one or more purchasers (including our existing shareholders), or through a combination of these
methods. The name of any such underwriter, dealer or agent involved in the offer and sale of the securities, the amounts underwritten and the nature of its obligation to take the securities will be stated in the applicable prospectus supplement. The
distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed from time to time, at market prices prevailing at the times of sale, at prices related to such prevailing
market prices or at negotiated prices.
The terms of the offering of securities with respect to which this prospectus is being delivered
will be set forth in the applicable prospectus supplement, if required, filed pursuant to Rule 424(b) under the Securities Act. Such supplement will describe, among other things:
| |
• |
|
the type and terms of the securities being offered; |
| |
• |
|
the names of any underwriters, dealers or agents and the number of securities underwritten or purchased by each; |
| |
• |
|
the purchase price of the securities; |
| |
• |
|
the proceeds we will receive from the sale of the securities and the uses thereof; |
| |
• |
|
any purchase options under which underwriters may purchase additional securities from us; |
| |
• |
|
any underwriting discounts or commissions, agency fees or other compensation payable to underwriters or agents; |
| |
• |
|
any initial public offering price; |
| |
• |
|
any discounts or concessions allowed or re-allowed or repaid to dealers; and |
| |
• |
|
the securities exchanges or markets on which the securities will be listed, if any. |
Underwriters, Dealers
and Agents
If we use one or more underwriters in any sale of securities offered under this prospectus, the underwriters will acquire
the securities for their own account. The underwriters may then resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of
sale. The underwriters may offer the securities to the public directly or through underwriting syndicates represented by managing underwriters. The obligations of the underwriters to purchase the securities will be subject to the conditions set
forth in the applicable underwriting agreement. The underwriters will be obligated to purchase all the securities offered if they purchase any securities. The underwriters may change from time to time any public offering price and any discounts or
concessions they allow or reallow or pay to dealers. We may use underwriters with whom we have a material relationship. We will describe the nature of any such relationship in any prospectus supplement naming such underwriter.
If we use dealers in any sale of securities offered under this prospectus, we will sell the securities to such dealers as principals. The
dealers may then resell the securities to the public at varying prices to be determined by such dealers at the time of resale or at a fixed price agreed to with us at the time of sale. In addition, we may designate agents who agree to use their
reasonable efforts to solicit purchases of our securities for the period of their appointment or to sell our securities on a continuing basis. If required, the prospectus supplement relating to any particular offering of securities will name any
agents designated to solicit offers and will include information about any commissions they may be paid in that offering.
34
Underwriters, dealers and agents that participate in the distribution of securities may be deemed
to be “underwriters” as defined in the Securities Act. Any discounts, commissions or profits they receive when they resell the securities may be treated as underwriting discounts and commissions under the Securities Act. Only underwriters
named in the prospectus supplement are underwriters of the securities offered in such prospectus supplement, and we will describe their compensation in the prospectus supplement.
We may also effect sales of securities offered under this prospectus from time to time in one or more types of transactions (which may include
block transactions, special offerings, exchange distributions, secondary distributions or purchases by a broker or dealer) on The NASDAQ Global Select Market or any other national securities exchange or automated trading and quotation system on
which our common stock or other securities are listed, in the over-the-counter market, in transactions otherwise than on such exchanges and systems or the over-the-counter market, including negotiated transactions, through options transactions
relating to the shares, or a combination of such methods of sale, at market prices prevailing at the time of sale, at negotiated prices or at fixed prices. Such transactions may or may not involve brokers or dealers.
Direct Sales
We may choose to sell the
securities offered under this prospectus directly. In this case, no underwriters, dealers or agents would be involved except as otherwise indicated in a prospectus supplement.
We may sell the securities offered under this prospectus directly to institutional or other investors, who may be deemed underwriters within
the meaning of the Securities Act with respect to resales of those securities. The terms of these sales will be described in the applicable prospectus supplement.
Delayed Delivery Contracts
We may
authorize underwriters, dealers or agents to solicit offers from certain institutions whereby the institution contractually agrees to purchase the securities from us at a specific price under delayed delivery contracts. This type of contract may be
made only with institutions that we specifically approve. Such institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The underwriters, dealers or agents will not be
responsible for the validity or performance of these contracts. The prospectus supplement relating to the contracts will set forth the price to be paid for offered securities pursuant to such contracts, the commission payable for solicitation of the
contracts and the date or dates in the future for delivery of offered securities pursuant to the contracts.
Passive Market Making, Stabilization and
Other Activities
Unless otherwise specified in the applicable prospectus supplement, each series of securities will be a new issue
with no established trading market, other than our common stock, which is listed on The NASDAQ Global Select Market. Any shares of common stock sold hereunder will be listed on The NASDAQ Global Select Market. We may elect to list any other series
of securities on any additional exchange or market, but we are not obligated to do so unless stated otherwise in a prospectus supplement. It is possible that one or more underwriters may make a market in a class or series of securities, but the
underwriters will not be obligated to do so and may discontinue any market making at any time without notice. We cannot give any assurance as to the liquidity of the trading market for any of the securities.
In connection with the distribution of the securities offered under this prospectus, we may enter into swap or other hedging transactions
with, or arranged by, underwriters or agents and their affiliates. We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the
applicable prospectus supplement indicates a connection with those derivatives, then the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third
party may use securities pledged by us or
35
borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any
related open borrowings of securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement.
Any underwriters who are qualified market makers on the NASDAQ Stock Market may engage in passive market making transactions in our common
stock on the NASDAQ Stock Market in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the common stock. Passive market makers must comply with
applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
In order to facilitate the offering of any of the securities offered under this prospectus, we may grant underwriters who participate in the
distribution of securities an option to purchase additional securities to cover overallotments, if any, in connection with the distribution. Any underwriter may engage in overallotment, stabilizing transactions, syndicate short covering transactions
and penalty bids in accordance with SEC orders, rules and regulations, including Regulation M, and applicable law. To the extent permitted by applicable law and SEC orders, rules and regulations, an overallotment involves sales in excess of the
offering size, which creates a short position. Stabilizing transactions permit bids to purchase the underlying security so long as the stabilizing bids do not exceed a specified maximum. To the extent permitted by applicable law and SEC orders,
rules and regulations, syndicate short covering transactions involve purchases of the securities in the open market after the distribution is completed to cover short positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions. Any of these activities may stabilize or maintain the market price of these securities above independent market levels.
The underwriters are not required to engage in these activities, and may end any of these activities at any time, all as will be described in the applicable prospectus supplement.
Limitations under State Law
Under the
securities law of various states, the securities offered under this prospectus may be sold in those states only through registered or licensed brokers or dealers. In addition, in various states the securities offered under this prospectus may not be
offered and sold unless such securities have been registered or qualified for sale in the state or an exemption from such registration or qualification is available and is complied with. We are not making an offer of securities in any state that
does not permit such an offer.
Indemnification
We expect that any agreements we may enter into with underwriters, dealers and agents will include provisions entitling them to indemnification
by us against certain civil liabilities, including certain liabilities under the Securities Act, or providing for contribution from us with respect to payments which the underwriters, dealers or agents may be required to make in respect of such
civil liabilities. Underwriters, dealers or agents may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary course of business.
36
LEGAL MATTERS
Phelps Dunbar LLP, our counsel, will pass upon certain legal matters with respect to the securities offered by us from time to time pursuant
to this prospectus, unless otherwise indicated in the applicable prospectus supplement. William M. Beasley, a partner of Phelps Dunbar LLP, is one of our directors. Phelps Dunbar LLP also provides legal advice to us on a regular basis. As of the
date of this prospectus, members of Phelps Dunbar LLP participating in the matters described in this paragraph as being passed upon by Phelps Dunbar LLP for Renasant owned in the aggregate approximately 49,347 shares of our common stock.
The applicable prospectus supplement will set forth the name of the law firm advising any underwriters or agents with respect to certain
issues relating to any offering.
EXPERTS
The consolidated financial statements of Renasant Corporation and its subsidiaries as of December 31, 2014 and 2013, and for the
three-year period ended December 31, 2014, included in our Annual Report on Form 10-K for the year ended December 31, 2014 and the effectiveness of our internal control over financial reporting as of December 31, 2014 have been
audited by Horne LLP, an independent registered public accounting firm, as stated in its report thereon, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated by reference in reliance upon such
report and upon the authority of said firm as experts in accounting and auditing.
37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. |
Other Expenses of Issuance and Distribution. |
The following table sets forth the
expenses to be incurred in connection with the sale and distribution of the securities being registered, all of which will be paid by Renasant Corporation (the “Registrant”). Because an indeterminate amount of securities are covered by
this Registration Statement, expenses in connection with the issuance and distribution of securities are not currently determinable.
|
|
|
|
|
| SEC registration fee |
|
$ |
* |
|
| Printing fees and expenses |
|
|
** |
|
| Legal fees and expenses |
|
|
** |
|
| Trustee fees and expenses |
|
|
** |
|
| Rating agencies’ fees and expenses |
|
|
** |
|
| Accounting fees and expenses |
|
|
** |
|
| Miscellaneous expenses |
|
|
** |
|
| Total |
|
$ |
** |
|
| * |
Deferred in accordance with Rule 456(b) and 457(r) under the Securities Act of 1933, as amended. |
| ** |
These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time. |
| Item 15. |
Indemnification of Directors and Officers. |
Mississippi Business Corporation Act
The Mississippi Business Corporation Act (“MBCA”) empowers a corporation to indemnify an individual who is a party to an action, suit
or proceeding of any kind because he is a director of the corporation, or because he served at the corporation’s request as a director, manager, trustee, partner, employee or agent of another entity or employee benefit plan, against a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan) or reasonable expenses incurred in the proceeding, if:
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• |
|
he conducted himself in good faith; |
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• |
|
he reasonably believed, in the case of conduct in his official capacity, that his conduct was in the best interests of the corporation, and, in all other cases, that his conduct was at least not opposed to the best
interests of the corporation; and |
| |
• |
|
in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful. |
A corporation may also indemnify an individual who engaged in conduct for which broader indemnification has been made permissible or
obligatory under a provision of the articles of incorporation as authorized by Section 79-4-2.02(b)(5) of the MBCA. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent
is not, of itself, determinative that the director did not meet the relevant standard of conduct.
Unless ordered by a court pursuant to
Section 79-4-8.54(a)(3) of the MBCA, a corporation may not indemnify a director in connection with:
| |
• |
|
a proceeding by or in the right of the corporation except for reasonable expenses incurred in connection with the proceeding if it is determined that the director has met the relevant standard of conduct under the MBCA
described above; or |
II-1
| |
• |
|
any proceeding with respect to conduct for which he was adjudged liable on the basis that he received a financial benefit to which he was not entitled, whether or not involving action in his official capacity.
|
The MBCA further provides that a corporation shall indemnify a director who was wholly successful, on the merits or
otherwise, in the defense of any proceeding to which he was a party because he was a director of the corporation against reasonable expenses incurred by him in connection with the proceeding.
A corporation may, before final disposition of a proceeding, advance funds to pay for or reimburse the reasonable expenses incurred by a
director who is a party to a proceeding because he is a director. The director must deliver to the corporation: (1) a signed written affirmation of his good faith belief that he has met the relevant standard of conduct under the MBCA described
above or that the proceeding involves conduct for which liability has been eliminated under a provision of the corporation’s articles of incorporation as authorized by the MBCA; and (2) his written undertaking to repay any funds advanced
if he is not entitled to mandatory indemnification under the MBCA and it is ultimately determined under the MBCA that he has not met the relevant standard of conduct described in the MBCA. The undertaking required must be an unlimited general
obligation of the director. It need not be secured and may be accepted without reference to the financial ability of the director to make repayment.
A corporation may not indemnify a director as described above unless authorized by:
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• |
|
the board of directors if there are two or more qualified directors, by a majority vote of all the qualified directors (a majority of whom shall for such purpose constitute a quorum) or by a majority of the members of a
committee of two or more qualified directors appointed by such a vote; |
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• |
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special legal counsel selected in accordance with Section 79-4-8.55 of the MBCA; or |
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• |
|
the stockholders, but shares owned by or voted under the control of a director who at the time does not qualify as a qualified director may not be voted on the authorization. |
A corporation may also indemnify and advance expenses to an officer of the corporation who is a party to a proceeding because he is an officer
to the same extent as for a director. If the officer is not also a director, he or she may be indemnified to such further extent as is provided by the articles of incorporation, the bylaws or board resolution except (i) for liability in
connection with a proceeding by or in the right of a proceeding other than for reasonable expenses, or (ii) liability arising out of conduct that constitutes receipt of an improper financial benefit, intentional infliction of harm on the
corporation or shareholders or an intentional violation of criminal law.
Renasant Bylaws
The Restated Bylaws of the Registrant, as amended, contain indemnification provisions that require the Registrant to indemnify any director or
officer made party to any proceeding if such director or officer met the requisite standard of conduct set forth in the bylaws and such indemnification is not otherwise prohibited by Mississippi or federal law. The required standard of conduct under
the bylaws is the same as that under the MBCA. Under the bylaws, the determination whether a director or officer met the required standard of conduct is made by the board of directors, special legal counsel, if there are fewer than two disinterested
directors on the board of directors, or by the Registrant’s shareholders. The advancement of expenses is also mandatory under the Registrant’s bylaws, provided that the director or officer makes deliveries analogous to those required under
the MBCA and such advancement is authorized as provided under the MBCA. The indemnification and insurance provisions in the Registrant’s bylaws are subject to the limitations and prohibitions imposed by federal law including, without
limitation, the Securities Act of 1933, as amended, and the Federal Deposit Insurance Act, as amended, and any implementing regulations concerning indemnification.
The Registrant’s Articles of Incorporation do not address indemnification of directors and officers.
II-2
The Registrant also maintains an insurance policy insuring the Registrant and its directors and
officers against certain liabilities.
|
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| Exhibit No. |
|
Description of Exhibit |
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| 1.1 |
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Form of Underwriting Agreement for common stock, preferred stock, depositary shares, rights, warrants or units* |
|
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| 3.1 |
|
Articles of Incorporation of Renasant Corporation, as amended (filed as exhibit 3.1 to the Registrant’s Form 10-Q filed with the Securities and Exchange Commission on May 9, 2005 and incorporated herein by reference) |
|
|
| 3.2 |
|
Restated Bylaws of Renasant Corporation, as amended (filed as exhibit 3(ii) to the Registrant’s Form 10-Q filed with the Securities and Exchange Commission on May 8, 2013 and incorporated herein by reference) |
|
|
| 4.1 |
|
Articles of Incorporation of Renasant Corporation, as amended (filed as exhibit 3.1 to the Registrant’s Form 10-Q filed with the Securities and Exchange Commission on May 9, 2005 and incorporated herein by reference) |
|
|
| 4.2 |
|
Restated Bylaws of Renasant Corporation, as amended (filed as exhibit 3(ii) to the Registrant’s Form 10-Q filed with the Securities and Exchange Commission on May 8, 2013 and incorporated herein by reference) |
|
|
| 4.3 |
|
Specimen Common Stock Certificate (filed as exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (File No. 333-183735) filed with the Securities and Exchange Commission on September 5, 2012 and incorporated herein
by reference) |
|
|
| 4.4 |
|
Form of Articles of Amendment Establishing a Series of Preferred Stock (together with Preferred Stock Certificate)* |
|
|
| 4.5 |
|
Form of Deposit Agreement, including form of Deposit Receipt* |
|
|
| 4.6 |
|
Form of Senior Indenture |
|
|
| 4.7 |
|
Form of Subordinated Indenture |
|
|
| 4.8 |
|
Form of Debt Security* |
|
|
| 4.9 |
|
Form of Rights Agent Agreement* |
|
|
| 4.10 |
|
Form of Warrant Agreement* |
|
|
| 4.11 |
|
Form of Warrant* |
|
|
| 4.12 |
|
Form of Unit Agreement (together with Unit Certificate)* |
|
|
| 5.1 |
|
Opinion of Phelps Dunbar, L.L.P. |
|
|
| 12.1 |
|
Computation of Ratios of Earnings to Fixed Charges and Preferred Stock Dividends |
|
|
| 23.1 |
|
Consent of Horne LLP |
|
|
| 23.2 |
|
Consent of Phelps Dunbar, L.L.P. (included in Exhibit 5.1) |
|
|
| 24.1 |
|
Power of Attorney (included on the signature page of this registration statement) |
|
|
| 25.1 |
|
Statement of Eligibility of Trustee on Form T-1 under the Senior Indenture* |
|
|
| 25.2 |
|
Statement of Eligibility of Trustee on Form T-1 under the Subordinated Indenture* |
| * |
To be filed, if necessary, by amendment or as an exhibit to one or more Current Reports on Form 8-K and incorporated herein by reference. |
II-3
The Registrant does not have any long-term debt instruments under which securities are authorized exceeding 10%
of the total assets of the Registrant and its subsidiaries on a consolidated basis. The Registrant will furnish to the SEC, upon its request, a copy of all long-term debt instruments.
The undersigned Registrant hereby undertakes:
| |
(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| |
(i) |
to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended; |
| |
(ii) |
to reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post- effective amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
| |
(iii) |
to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
|
provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
| |
(2) |
That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| |
(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| |
(4) |
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser: |
| |
(i) |
Each prospectus filed by a Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration
statement; and |
| |
(ii) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933, as amended, shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration |
II-4
| |
statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| |
(5) |
That, for the purpose of determining liability of the Registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that
in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| |
(i) |
Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424; |
| |
(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant; |
| |
(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
|
| |
(iv) |
Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
| |
(6) |
That, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934, as amended (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended), that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and
controlling persons of each Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in
the Securities Act of 1933, as amended, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a Registrant of expenses incurred or paid by a director, officer or
controlling person of a Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)2 of the Act.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Tupelo, State of Mississippi, on this 15th day of September, 2015.
|
|
|
| RENASANT CORPORATION |
|
|
| By: |
|
/s/ E. Robinson McGraw |
|
|
E. Robinson McGraw, Chairman, President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned directors and officers of Renasant Corporation, a Mississippi corporation
(“Renasant”), do hereby name, constitute and appoint E. Robinson McGraw and Kevin D. Chapman, and each or either of them (with full power to each of them to act alone), our true and lawful agents and attorneys-in-fact, for us and on our
behalf and in our name, place and stead, in any and all capacities, to sign, execute, acknowledge, deliver, and file (a) with the Securities and Exchange Commission (or any other governmental or regulatory authority), any and all amendments
(including post-effective amendments) to this Registration Statement and any additional registration statements relating to the registration of additional securities pursuant to Rule 462(b) under the Securities Act of 1933, as amended, with any and
all exhibits and any and all other documents required to be filed with respect thereto or in connection therewith, and (b) with the securities agencies or officials of various jurisdictions, all applications, qualifications, registrations or
exemptions relating to such offering under the laws of any such jurisdiction, including any amendments thereto or other documents required to be filed with respect thereto or in connection therewith, granting unto said agents and attorneys, and each
of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as the undersigned might or could do
if personally present, and the undersigned hereby ratify and confirm all that said agents and attorneys-in-fact, or any of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated.
|
|
|
|
|
| Signature |
|
Title |
|
Date |
|
|
|
| /s/ E. Robinson McGraw
E. Robinson McGraw |
|
Chairman of the Board,
President, Chief Executive Officer
and Director (Principal Executive Officer) |
|
September 15, 2015 |
|
|
|
| /s/ Kevin D. Chapman
Kevin D. Chapman |
|
Executive Vice President
and Chief Financial Officer
(Principal Financial and Accounting
Officer) |
|
September 15, 2015 |
|
|
|
| /s/ William M. Beasley
William M. Beasley |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ George H. Booth, II
George H. Booth, II |
|
Director |
|
September 15, 2015 |
|
|
|
|
|
| Signature |
|
Title |
|
Date |
|
|
|
| /s/ Frank B. Brooks
Frank B. Brooks |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Hollis C. Cheek
Hollis C. Cheek |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ John M. Creekmore
John M. Creekmore |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Albert J. Dale, III
Albert J. Dale, III |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Jill V. Deer
Jill V. Deer |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Marshall H. Dickerson
Marshall H. Dickerson |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ John T. Foy
John T. Foy |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ R. Rick Hart
R. Rick Hart |
|
Executive Vice President
and Director |
|
September 15, 2015 |
|
|
|
| /s/ Richard L. Heyer, Jr.
Richard L. Heyer, Jr. |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Neal A. Holland, Jr.
Neal A. Holland, Jr. |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ J. Niles McNeel
J. Niles McNeel |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Hugh S. Potts, Jr.
Hugh S. Potts, Jr. |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Fred F. Sharpe
Fred F. Sharpe |
|
Director |
|
September 15, 2015 |
|
|
|
| /s/ Michael D. Shmerling
Michael D. Shmerling |
|
Director |
|
September 15, 2015 |
EXHIBIT INDEX
|
|
|
| Exhibit No. |
|
Description of Exhibit |
|
|
| 1.1 |
|
Form of Underwriting Agreement for common stock, preferred stock, depositary shares, rights, warrants or units* |
|
|
| 4.4 |
|
Form of Articles of Amendment Establishing a Series of Preferred Stock (together with Preferred Stock Certificate)* |
|
|
| 4.5 |
|
Form of Deposit Agreement, including form of Deposit Receipt* |
|
|
| 4.6 |
|
Form of Senior Indenture |
|
|
| 4.7 |
|
Form of Subordinated Indenture |
|
|
| 4.8 |
|
Form of Debt Security* |
|
|
| 4.9 |
|
Form of Rights Agent Agreement* |
|
|
| 4.10 |
|
Form of Warrant Agreement* |
|
|
| 4.11 |
|
Form of Warrant* |
|
|
| 4.12 |
|
Form of Unit Agreement (together with Unit Certificate)* |
|
|
| 5.1 |
|
Opinion of Phelps Dunbar, L.L.P. |
|
|
| 12.1 |
|
Computation of Ratios of Earnings to Fixed Charges and Preferred Stock Dividends |
|
|
| 23.1 |
|
Consent of Horne LLP |
|
|
| 23.2 |
|
Consent of Phelps Dunbar, L.L.P. (included in Exhibit 5.1) |
|
|
| 24.1 |
|
Power of Attorney (included on the signature page of this registration statement) |
|
|
| 25.1 |
|
Statement of Eligibility of Trustee on Form T-1 under the Senior Indenture* |
|
|
| 25.2 |
|
Statement of Eligibility of Trustee on Form T-1 under the Subordinated Indenture* |
| * |
To be filed, if necessary, by amendment or as an exhibit to one or more Current Reports on Form 8-K and incorporated herein by reference. |
Exhibit 4.6
RENASANT CORPORATION
SENIOR DEBT INDENTURE
DATED AS OF ,
20
, TRUSTEE
TABLE OF CONTENTS
|
|
|
|
|
| |
|
|
|
Page Number |
| ARTICLE I |
|
DEFINITIONS AND INCORPORATION BY REFERENCE |
|
|
| Section 1.1 |
|
Definitions |
|
|
| Section 1.2 |
|
Other Definitions |
|
|
| Section 1.3 |
|
Incorporation by Reference of Trust Indenture Act |
|
|
| Section 1.4 |
|
Rules of Construction |
|
|
| ARTICLE II |
|
THE SECURITIES |
|
|
| Section 2.1 |
|
Issuable in Series |
|
|
| Section 2.2 |
|
Establishment of Terms of Series of Securities |
|
|
| Section 2.3 |
|
Execution and Authentication |
|
|
| Section 2.4 |
|
Registrar and Paying Agent |
|
|
| Section 2.5 |
|
Paying Agent to Hold Money in Trust |
|
|
| Section 2.6 |
|
Securityholder Lists |
|
|
| Section 2.7 |
|
Transfer and Exchange |
|
|
| Section 2.8 |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
| Section 2.9 |
|
Outstanding Securities |
|
|
| Section 2.10 |
|
Treasury Securities |
|
|
| Section 2.11 |
|
Temporary Securities |
|
|
| Section 2.12 |
|
Cancellation |
|
|
| Section 2.13 |
|
Defaulted Interest |
|
|
| Section 2.14 |
|
Global Securities |
|
|
| Section 2.15 |
|
CUSIP Numbers |
|
|
| ARTICLE III |
|
REDEMPTION |
|
|
| Section 3.1 |
|
Notice to Trustee |
|
|
| Section 3.2 |
|
Selection of Securities to be Redeemed |
|
|
| Section 3.3 |
|
Notice of Redemption |
|
|
| Section 3.4 |
|
Effect of Notice of Redemption |
|
|
| Section 3.5 |
|
Deposit of Redemption Price |
|
|
| Section 3.6 |
|
Securities Redeemed in Part |
|
|
| ARTICLE IV |
|
COVENANTS |
|
|
| Section 4.1 |
|
Payment of Principal and Interest |
|
|
| Section 4.2 |
|
SEC Reports |
|
|
| Section 4.3 |
|
Compliance Certificate |
|
|
| Section 4.4 |
|
Stay, Extension and Usury Laws |
|
|
| Section 4.5 |
|
Corporate Existence |
|
|
| Section 4.6 |
|
Taxes |
|
|
| ARTICLE V |
|
SUCCESSORS |
|
|
| Section 5.1 |
|
When Company May Merge, Etc. |
|
|
| Section 5.2 |
|
Successor Corporation Substituted |
|
|
| ARTICLE VI |
|
DEFAULTS AND REMEDIES |
|
|
| Section 6.1 |
|
Events of Default |
|
|
| Section 6.2 |
|
Acceleration of Maturity; Rescission and Annulment |
|
|
| Section 6.3 |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
|
| Section 6.4 |
|
Trustee May File Proofs of Claim |
|
|
| Section 6.5 |
|
Trustee May Enforce Claims Without Possession of Securities |
|
|
| Section 6.6 |
|
Application of Money Collected |
|
|
| Section 6.7 |
|
Limitation on Suits |
|
|
| Section 6.8 |
|
Unconditional Right of Holders to Receive Principal and Interest |
|
|
| Section 6.9 |
|
Restoration of Rights and Remedies |
|
|
| Section 6.10 |
|
Rights and Remedies Cumulative |
|
|
| Section 6.11 |
|
Delay or Omission Not Waiver |
|
|
| Section 6.12 |
|
Control by Holders |
|
|
| Section 6.13 |
|
Waiver of Past Defaults |
|
|
| Section 6.14 |
|
Undertaking For Costs |
|
|
2
|
|
|
|
|
| |
|
|
|
Page Number |
| ARTICLE VII |
|
TRUSTEE |
|
|
| Section 7.1 |
|
Duties of Trustee |
|
|
| Section 7.2 |
|
Rights of Trustee |
|
|
| Section 7.3 |
|
Individual Rights of Trustee |
|
|
| Section 7.4 |
|
Trustee’s Disclaimer |
|
|
| Section 7.5 |
|
Notice of Defaults |
|
|
| Section 7.6 |
|
Reports by Trustee to Holders |
|
|
| Section 7.7 |
|
Compensation and Indemnity |
|
|
| Section 7.8 |
|
Replacement of Trustee |
|
|
| Section 7.9 |
|
Successor Trustee by Merger, Etc. |
|
|
| Section 7.10 |
|
Eligibility; Disqualification |
|
|
| Section 7.11 |
|
Referential Collection of Claims Against Company |
|
|
| ARTICLE VIII |
|
SATISFACTION AND DISCHARGE; DEFEASANCE |
|
|
| Section 8.1 |
|
Satisfaction and Discharge of Indenture |
|
|
| Section 8.2 |
|
Application of Trust Funds; Indemnification |
|
|
| Section 8.3 |
|
Legal Defeasance of Securities of Any Series |
|
|
| Section 8.4 |
|
Covenant Defeasance |
|
|
| Section 8.5 |
|
Repayment to Company |
|
|
| ARTICLE IX |
|
AMENDMENTS AND WAIVERS |
|
|
| Section 9.1 |
|
Without Consent of Holders |
|
|
| Section 9.2 |
|
With Consent of Holders |
|
|
| Section 9.3 |
|
Limitations |
|
|
| Section 9.4 |
|
Compliance with Trust Indenture Act |
|
|
| Section 9.5 |
|
Revocation and Effect of Consents |
|
|
| Section 9.6 |
|
Notation on or Exchange of Securities |
|
|
| Section 9.7 |
|
Trustee Protected |
|
|
| ARTICLE X |
|
MISCELLANEOUS |
|
|
| Section 10.1 |
|
Trust Indenture Act Controls |
|
|
| Section 10.2 |
|
Notices |
|
|
| Section 10.3 |
|
Communication by Holders with Other Holders |
|
|
| Section 10.4 |
|
Certificate and Opinion as to Conditions Precedent |
|
|
| Section 10.5 |
|
Statements Required in Certificate or Opinion |
|
|
| Section 10.6 |
|
Rules by Trustee and Agents |
|
|
| Section 10.7 |
|
Legal Holidays |
|
|
| Section 10.8 |
|
No Recourse Against Others |
|
|
| Section 10.9 |
|
Counterparts |
|
|
| Section 10.10 |
|
Governing Laws |
|
|
| Section 10.11 |
|
No Adverse Interpretation of Other Agreements |
|
|
| Section 10.12 |
|
Successors |
|
|
| Section 10.13 |
|
Severability |
|
|
| Section 10.14 |
|
Table of Contents, Headings, Etc. |
|
|
| ARTICLE XI |
|
SINKING FUNDS |
|
|
| Section 11.1 |
|
Applicability of Article |
|
|
| Section 11.2 |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
| Section 11.3 |
|
Redemption of Securities for Sinking Fund |
|
|
3
CROSS REFERENCE TABLE
|
|
|
|
|
|
|
| Trust Indenture Act
Section |
|
|
|
Indenture
Section |
|
| Section 310 |
|
(a)(1) |
|
|
7.10 |
|
|
|
(a)(2) |
|
|
7.10 |
|
|
|
(a)(3) |
|
|
N/A |
|
|
|
(a)(4) |
|
|
N/A |
|
|
|
(a)(5) |
|
|
7.10 |
|
|
|
(b) |
|
|
7.10 |
|
| Section 311 |
|
(a) |
|
|
7.11 |
|
|
|
(b) |
|
|
7.11 |
|
|
|
(c) |
|
|
N/A |
|
| Section 312 |
|
(a) |
|
|
2.6 |
|
|
|
(b) |
|
|
10.3 |
|
|
|
(c) |
|
|
10.3 |
|
| Section 313 |
|
(a) |
|
|
7.6 |
|
|
|
(b)(1) |
|
|
7.6 |
|
|
|
(b)(2) |
|
|
7.6 |
|
|
|
(c)(1) |
|
|
7.6 |
|
|
|
(d) |
|
|
7.6 |
|
| Section 314 |
|
(a) |
|
|
4.2, 10.5 |
|
|
|
(b) |
|
|
N/A |
|
|
|
(c)(1) |
|
|
10.4 |
|
|
|
(c)(2) |
|
|
10.4 |
|
|
|
(c)(3) |
|
|
N/A |
|
|
|
(d) |
|
|
N/A |
|
|
|
(e) |
|
|
10.5 |
|
|
|
(f) |
|
|
N/A |
|
| Section 315 |
|
(a) |
|
|
7.1 |
|
|
|
(b) |
|
|
7.5 |
|
|
|
(c) |
|
|
7.1 |
|
|
|
(d) |
|
|
7.1 |
|
|
|
(e) |
|
|
6.14 |
|
| Section 316 |
|
(a) |
|
|
2.10 |
|
|
|
(a)(1)(A) |
|
|
6.12 |
|
|
|
(a)(1)(B) |
|
|
6.13 |
|
|
|
(b) |
|
|
6.8 |
|
| Section 317 |
|
(a)(1) |
|
|
6.3 |
|
|
|
(a)(2) |
|
|
6.4 |
|
|
|
(b) |
|
|
2.5 |
|
| Section 318 |
|
(a) |
|
|
10.1 |
|
| * |
This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture. |
4
Senior Debt Indenture dated as of
, 20 between RENASANT CORPORATION, a Mississippi corporation (“Company”), and
, as trustee (“Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued
under this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect
to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.
“Agent” means any Registrar, Paying Agent or Service Agent.
“Authorized Newspaper” means a newspaper in an official language of the country of publication customarily published at least once a
day for at least five days in each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice.
“Bearer Security” means any Security, including any interest coupon appertaining thereto, that does not provide for the
identification of the Holder thereof.
“Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for
a particular Series, any day except a Saturday, Sunday or a legal holiday in the City of Tupelo, Mississippi, on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate
stock.
“Company” means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s
principal executive officer, principal financial officer or principal accounting officer.
“Company Request” means a written
request signed in the name of the Company by its Chief Executive Officer, the President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
5
“Corporate Trust Office” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered.
“Default” means any event which is, or after notice or
passage of time or both would be, an Event of Default.
“Depository” means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any
time there is more than one such person, “Depository” as used with respect to the Securities of any Series shall mean the Depository with respect to the Securities of such Series.
“Discount Security” means any Security that provides for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Stated Maturity thereof pursuant to Section 6.2.
“Dollars” and
“$” means the currency of the United States of America.
“Exchange Act” means the Securities Exchange Act of 1934, as
amended.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect as of the date of determination.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in
the name of such Depository or nominee.
“Holder” or “Securityholder” means a person in whose name a Security is
registered or the holder of a Bearer Security.
“Indenture” means this Senior Debt Indenture as amended or supplemented from
time to time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.
“interest” with respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after
Maturity.
“Maturity,” when used with respect to any Security or installment of principal thereof, means the date on which the
principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, or otherwise.
“Officer” means the Chief Executive Officer, the President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the Company.
“Officers’ Certificate” means a certificate signed by two Officers,
one of whom must be the Company’s principal executive officer, principal financial officer or principal accounting officer.
“Opinion of Counsel” means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company.
“person” means any individual, corporation, partnership, joint venture, association,
limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
6
“principal” or “principal amount” of a Security means the principal amount of
the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.
“Responsible
Officer” means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and
familiarity with a particular subject.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under
this Indenture.
“Series” or “Series of Securities” means each series of debentures, notes or other debt instruments
of the Company created pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity” when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” of any specified person means any corporation, association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or
one or more of the other Subsidiaries of that person or a combination thereof.
“TIA” means the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the
Trust Indenture Act as so amended.
“Trustee” means the person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee hereunder, and if at any time there is more than one
such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations” means securities which are (a) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (b) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, and which in the case of (a) and (b) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced
by such depository receipt.
Section 1.2 Other Definitions.
|
|
|
|
|
| Term |
|
Defined in Section |
|
| “Bankruptcy Law” |
|
|
6.1 |
|
| “Custodian” |
|
|
6.1 |
|
| “Event of Default” |
|
|
6.1 |
|
| “Legal Holiday” |
|
|
10.7 |
|
| “mandatory sinking fund payment” |
|
|
11.1 |
|
| “optional sinking fund payment” |
|
|
11.1 |
|
| “Paying Agent” |
|
|
2.4 |
|
| “Registrar” |
|
|
2.4 |
|
| “Service Agent” |
|
|
2.4 |
|
| “successor person |
|
|
5.1 |
|
7
Section 1.3 Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4 Rules Of Construction. Unless the context
otherwise requires:
| |
(a) |
a term has the meaning assigned to it; |
| |
(b) |
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles; |
| |
(c) |
references to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles, consistently applied, in effect as of the time when and for the period as to
which such accounting principles are to be applied; |
| |
(d) |
“or” is not exclusive; |
| |
(e) |
words in the singular include the plural, and in the plural include the singular; and |
| |
(f) |
provisions apply to successive events and transactions. |
ARTICLE II
THE SECURITIES
Section 2.1 Issuable In Series. The aggregate principal amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, supplemental indenture or Officers’
Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental
indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall
accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2 Establishment Of Terms Of Series Of Securities. At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of Subsection 2.2(a) and either as to such Securities within the Series or as to the Series generally, in the case of Subsections 2.2(b) through 2.2(q)) by or pursuant to a
Board Resolution, and set forth or determined in the manner provided in a Board
8
Resolution, supplemental indenture or an Officers’ Certificate:
| |
(a) |
the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series); |
| |
(b) |
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued; |
| |
(c) |
any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6); |
| |
(d) |
the date or dates on which the principal of the Securities of the Series is payable; |
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(e) |
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular
record date for the interest payable on any interest payment date; |
| |
(f) |
the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means; |
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(g) |
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
|
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(h) |
the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| |
(i) |
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such
repurchase obligations; |
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(j) |
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable; |
| |
(k) |
the forms of the Securities of the Series in bearer or fully registered form (and, if in fully registered form, whether the Securities will be issuable as Global Securities); |
| |
(l) |
if other than the entire principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.2; |
| |
(m) |
the provisions, if any, relating to any lien, security or encumbrance provided for the Securities of the Series; |
| |
(n) |
any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.2; |
9
| |
(o) |
any addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series; |
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(p) |
any other terms of the Securities of the Series (which may modify or delete any provision of this Indenture insofar as it applies to such Series); and |
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(q) |
any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein. |
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating
agent. Such a signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at
any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such
Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated
the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount
for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected
in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officers’ Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised
by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or Vice Presidents shall determine that such
action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or
places specified with respect to such Series pursuant to Section 2.2, an office or agency
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where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each Series of
Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company
shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from
time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant
to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying
agent or additional service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service Agent” includes any additional service agent.
The Company hereby appoints the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar,
Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will
notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most
recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least
ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of
Securities.
Section 2.7 Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met.
To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges
pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the
transfer of, or exchange Securities of any Series for the period beginning at the opening of business 15 days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of
business on the day of such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or
being called for redemption in part.
11
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated
Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of
the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9 Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or
an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases
to accrue (to the extent of the Maturity of such Security if less than the entire principal amount is due and payable on such date of Maturity).
A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company
shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Securities of a Series that the Trustee knows
are so owned shall be so disregarded.
12
Section 2.11 Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and Stated Maturity in exchange for temporary Securities. Until so
exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12
Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities to the Company, unless the Company otherwise directs; provided that the Trustee shall not
be required to destroy Securities. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment
date. At least 10 days before the record date, the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted
interest in any other lawful manner.
Section 2.14 Global Securities.
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(a) |
Terms Of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one
or more Global Securities and the Depository for such Global Security or Securities. |
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(b) |
Transfer And Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 hereof and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 hereof
for Securities registered in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or
if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered as a clearing agency under the Exchange Act within 90 days of such
event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an
aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms. |
Except as
provided in this Section 2.14(b), a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.
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(c) |
Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: |
“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and may not be
transferred except as a whole by the Depository to a
13
nominee of the Depository, by a nominee of the Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of
such a successor Depository.”
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(d) |
Acts Of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture. |
| |
(e) |
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be
made to the Holder thereof. |
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(f) |
Consents, Declaration And Directions. Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of
such Series represented by a Global Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture. |
Section 2.15 CUSIP Numbers. The Company in issuing the Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
Section 3.1 Notice To Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the
Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and
the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of Series
of Securities to be redeemed. The Company shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate.
The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than
$1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2(j), the minimum
principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
Section 3.3 Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed and, if any Bearer
Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper.
14
The notice shall identify the Securities of the Series to be redeemed and shall state:
| |
(b) |
the redemption price; |
| |
(c) |
the name and address of the Paying Agent; |
| |
(d) |
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price; |
| |
(e) |
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; |
| |
(f) |
the CUSIP number, if any; and |
| |
(g) |
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed. |
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense.
Section 3.4 Effect of Notice of Redemption. Once notice of redemption is mailed or published as provided in Section 3.3,
Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date, provided that installments of interest whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders of such Securities (or one or more predecessor
Securities) registered at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6
Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of
the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of
Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Section 4.2 SEC Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on an Officers’ Certificate).
Section 4.3 Compliance Certificate. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision
of the signing
15
Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such
certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or
Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.4 Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture or the Securities and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.5 Corporate Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however, that the Company shall not be required to preserve any such right, license or franchise if
the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.6 Taxes. The Company shall pay prior to delinquency all taxes, assessments and governmental levies, except
as contested in good faith and by appropriate proceedings.
ARTICLE V
SUCCESSORS
Section 5.1 When Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of its properties and assets to, any person (a “successor person”) unless:
| |
(a) |
the Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the
Company’s obligations on the Securities and under this Indenture; and |
| |
(b) |
immediately after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing. |
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.2 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however,
that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
16
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any Series, means any one of the following events, unless in
the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
| |
(a) |
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by
the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); |
| |
(b) |
default in the payment of principal of any Security of that Series at its Maturity; |
| |
(c) |
default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; |
| |
(d) |
default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which the consequences of nonperformance or breach are addressed elsewhere in this
Section 6.1 and other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; |
| |
(e) |
the Company pursuant to or within the meaning of any Bankruptcy Law: |
| |
i. |
commences a voluntary case, |
| |
ii. |
consents to the entry of an order for relief against it in an involuntary case, |
| |
iii. |
consents to the appointment of a Custodian of it or for all or substantially all of its property, |
| |
iv. |
makes a general assignment for the benefit of its creditors, or |
| |
v. |
generally is unable to pay its debts as the same become due; or |
| |
(f) |
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| |
i. |
is for relief against the Company in an involuntary case, |
| |
ii. |
appoints a Custodian of the Company or for all or substantially all of its property, or |
| |
iii. |
orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or |
| |
(g) |
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with
Section 2.2(n). |
The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for
the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
17
Section 6.2 Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)), then in every such case the Trustee or the Holders of not less than a
majority in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such
Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or portion thereof) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or portion thereof) of
and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 6.3 Collection Of Indebtedness And Suits For Enforcement By Trustee.
The Company covenants that if:
| |
(a) |
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, |
| |
(b) |
default is made in the payment of principal of any Security at the Maturity thereof, or |
| |
(c) |
default is made in the deposit of any sinking fund payment when and as due by the terms of a Security, |
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File Proofs Of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
18
proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial
proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in
any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims Without Possession Of Securities. All rights of action and claims under this Indenture or
the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon presentation of
the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the
payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and
interest, respectively; and
Third: To the Company.
Section 6.7 Limitation On Suits.
No Holder of any Security of any Series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
| |
(a) |
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series; |
| |
(b) |
the Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder; |
| |
(c) |
such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; |
19
| |
(d) |
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
| |
(e) |
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series;
|
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 6.8
Unconditional Right of Holders to Receive Principal and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 6.9 Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 6.10 Rights and Remedies Cumulative. Except
as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that:
| |
(a) |
such direction shall not be in conflict with any rule of law or with this Indenture; |
| |
(b) |
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and |
| |
(c) |
subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. |
Section 6.13 Waiver Of Past Defaults.
The Holders of not less than a majority in principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its
consequences, except a Default (a) in the payment of the
20
principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an
acceleration and its consequences, including any related payment default that resulted from such acceleration) or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each
outstanding Security of such Series affected. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.14 Undertaking For Costs. All
parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable
costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any
suit instituted by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.1
Duties of Trustee.
| |
(a) |
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs. |
| |
(b) |
Except during the continuance of an Event of Default: |
| |
i. |
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others. |
| |
ii. |
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of
Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture. |
| |
(c) |
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: |
| |
i. |
This paragraph does not limit the effect of paragraph (b) of this Section. |
| |
ii. |
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. |
| |
iii. |
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture with respect to the Securities of such Series. |
21
| |
(d) |
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section. |
| |
(e) |
The Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity satisfactory to it against any loss, liability or expense.
|
| |
(f) |
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to
the extent required by law. |
| |
(g) |
No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. |
| |
(h) |
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee. |
Section 7.2 Rights of Trustee.
| |
(a) |
The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document. |
| |
(b) |
Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate. |
| |
(c) |
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any Depository. |
| |
(d) |
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute
negligence or willful misconduct. |
| |
(e) |
The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder
without negligence and in good faith and in reliance thereon. |
| |
(f) |
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. |
| |
(g) |
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder without negligence and in good faith and in reliance thereon. |
| |
(h) |
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. |
| |
(i) |
The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible
|
22
| |
Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities generally or the Securities of a particular Series and this Indenture. |
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5 Notice Of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any
Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding, publish on one occasion in an Authorized Newspaper,
notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the
interests of Securityholders of that Series.
Section 7.6 Reports by Trustee to Holders. Within 60 days after May 15 in
each year, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated
as of such May 15, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the time of
its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange, if any, on which the Securities of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on
any stock exchange.
Section 7.7 Compensation and Indemnity. The Company shall pay to the Trustee from time to time
compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any loss,
liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or
Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by
the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or willful misconduct.
To
secure the Company’s payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest
on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(e) or (f) occurs, the expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
23
The provisions of this Section shall survive the termination of this Indenture.
Section 7.8 Replacement of Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become
effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with
respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
| |
(a) |
the Trustee fails to comply with Section 7.10; |
| |
(b) |
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; |
| |
(c) |
a Custodian or public officer takes charge of the Trustee or its property; or |
| |
(d) |
the Trustee becomes incapable of acting. |
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the
Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the
applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in
Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as
Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9 Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to, another person, the successor person without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the requirements of TIA
Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA
Section 310(b).
Section 7.11 Referential Collection of Claims Against Company. The Trustee is subject to TIA
Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.
24
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
| |
i. |
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
|
| |
ii. |
all such Securities not theretofore delivered to the Trustee for cancellation |
(1) have become
due and payable, or
(2) will become due and payable at their Stated Maturity within one year, or
(3) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company; or
(4) are deemed paid and discharged pursuant to Section 8.3, as
applicable;
and the Company, in the case of (1), (2) and (3) above, has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the
case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
| |
(b) |
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| |
(c) |
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2 Application of Trust Funds; Indemnification.
| |
(a) |
Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4
and all money received by the Trustee in respect of U.S. Government Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money
has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4. |
| |
(b) |
The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders. |
25
| |
(c) |
The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which
such U.S. Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture. |
Section 8.3 Legal Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2(p), to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit
referred to in subparagraph (c) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, at Company Request,
execute proper instruments acknowledging the same), except as to:
| |
(a) |
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (c) hereof, (i) payment of the principal of and each installment of principal of and interest on
the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on
which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series; |
| |
(b) |
the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and |
| |
(c) |
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied: |
| |
i. |
the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a regionally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the
Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due; |
| |
ii. |
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; |
| |
iii. |
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
| |
iv. |
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (B) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; |
26
| |
v. |
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any
other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and |
| |
vi. |
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section
have been complied with. |
Section 8.4 Covenant Defeasance. Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2(p) to be inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with respect to the Securities of any
Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.6, and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’
Certificate delivered pursuant to Section 2.2(p) (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified
in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.2(n) and designated as an Event of Default shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
| |
(a) |
With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the
following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect
thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the
opinion of a regionally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any
mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due; |
| |
(b) |
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; |
| |
(c) |
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
| |
(d) |
The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred; and |
| |
(e) |
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by
this Section have been complied with. |
Section 8.5 Repayment to Company. The Trustee and the Paying Agent shall
pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for six months. After that, Securityholders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
27
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1 Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of
one or more Series without the consent of any Securityholder:
| |
(a) |
to cure any ambiguity, defect or inconsistency; |
| |
(b) |
to comply with Article V; |
| |
(c) |
to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| |
(d) |
to make any change that does not adversely affect the rights of any Securityholder; |
| |
(e) |
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture; |
| |
(f) |
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or |
| |
(g) |
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA. |
Section 9.2 With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of
such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such
Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities
affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3 Limitations. Without the consent of each Securityholder affected, an amendment or waiver may not:
| |
(a) |
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver; |
| |
(b) |
reduce the rate of or extend the time for payment of interest (including default interest) on any Security; |
| |
(c) |
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; |
| |
(d) |
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; |
| |
(e) |
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in
principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); |
28
| |
(f) |
make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security; |
| |
(g) |
make any change in Sections 6.8, 6.13, or 9.3 (this sentence); or |
| |
(h) |
waive a redemption payment with respect to any Security. |
Section 9.4 Compliance With
Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5 Revocation and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
Section 9.6
Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or waiver on any Security
of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices. Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the
Trustee, is duly given if in writing and delivered in person or mailed by first-class mail:
if to the Company:
Renasant Corporation
209 Troy
Street
Tupelo, Mississippi 3804-4827
Attention: Chief Executive Officer
Telephone: (662) 680-1001
29
if to the Trustee:
The Company or the Trustee by notice to the other may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first-class mail to his address
shown on the register kept by the Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper. Failure to mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its
sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the
manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company mails
a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3
Communication by Holders with Other Holders. Securityholders of any Series may communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or
the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
| |
(a) |
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
| |
(b) |
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. |
Section 10.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
| |
(a) |
a statement that the person making such certificate or opinion has read such covenant or condition; |
| |
(b) |
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
| |
(c) |
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been
complied with; and |
| |
(d) |
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. |
Section 10.6 Rules by Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Securityholders of
one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
30
Section 10.7 Legal Holidays. Unless otherwise provided by Board Resolution,
Officers’ Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8 No
Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
Section 10.10 Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF MISSISSIPPI
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13 Severability. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
ARTICLE XI
SINKING
FUNDS
Section 11.1 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for
the retirement of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a
“mandatory sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2 Satisfaction Of Sinking Fund Payments With Securities. The Company may, in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of any Series to be made
31
pursuant to the terms of such Securities (a) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities previously
called for mandatory sinking fund redemption) and (b) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the Company
pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities,
provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on which the Trustee
begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the
aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying
Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3 Redemption Of Securities For Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
32
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
|
| RENASANT CORPORATION |
|
| |
| By: |
| Title: |
|
| [TRUSTEE] |
|
| |
| By: |
| Title: |
33
Exhibit 4.7
RENASANT CORPORATION
SUBORDINATED DEBT INDENTURE
DATED AS OF ,
20
, TRUSTEE
TABLE OF CONTENTS
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Page Number |
| ARTICLE I |
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DEFINITIONS AND INCORPORATION BY REFERENCE |
|
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| Section 1.1 |
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Definitions |
|
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| Section 1.2 |
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Other Definitions |
|
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| Section 1.3 |
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Incorporation by Reference of Trust Indenture Act |
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| Section 1.4 |
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Rules of Construction |
|
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| ARTICLE II |
|
THE SECURITIES |
|
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| Section 2.1 |
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Issuable in Series |
|
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| Section 2.2 |
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Establishment of Terms of Series of Securities |
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| Section 2.3 |
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Execution and Authentication |
|
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| Section 2.4 |
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Registrar and Paying Agent |
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| Section 2.5 |
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Paying Agent to Hold Money in Trust |
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| Section 2.6 |
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Securityholder Lists |
|
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| Section 2.7 |
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Transfer and Exchange |
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| Section 2.8 |
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Mutilated, Destroyed, Lost and Stolen Securities |
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| Section 2.9 |
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Outstanding Securities |
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| Section 2.10 |
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Treasury Securities |
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| Section 2.11 |
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Temporary Securities |
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| Section 2.12 |
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Cancellation |
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| Section 2.13 |
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Defaulted Interest |
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| Section 2.14 |
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Global Securities |
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| Section 2.15 |
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CUSIP Numbers |
|
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| ARTICLE III |
|
REDEMPTION |
|
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| Section 3.1 |
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Notice to Trustee |
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| Section 3.2 |
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Selection of Securities to be Redeemed |
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| Section 3.3 |
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Notice of Redemption |
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| Section 3.4 |
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Effect of Notice of Redemption |
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| Section 3.5 |
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Deposit of Redemption Price |
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| Section 3.6 |
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Securities Redeemed in Part |
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| ARTICLE IV |
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COVENANTS |
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| Section 4.1 |
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Payment of Principal and Interest |
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| Section 4.2 |
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SEC Reports |
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| Section 4.3 |
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Compliance Certificate |
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| Section 4.4 |
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Stay, Extension and Usury Laws |
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| Section 4.5 |
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Corporate Existence |
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| Section 4.6 |
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Taxes |
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| ARTICLE V |
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SUCCESSORS |
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| Section 5.1 |
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When Company May Merge, Etc. |
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| Section 5.2 |
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Successor Corporation Substituted |
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| ARTICLE VI |
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DEFAULTS AND REMEDIES |
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| Section 6.1 |
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Events of Default |
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| Section 6.2 |
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Acceleration of Maturity; Rescission and Annulment |
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| Section 6.3 |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
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| Section 6.4 |
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Trustee May File Proofs of Claim |
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| Section 6.5 |
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Trustee May Enforce Claims Without Possession of Securities |
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| Section 6.6 |
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Application of Money Collected |
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| Section 6.7 |
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Limitation on Suits |
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| Section 6.8 |
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Unconditional Right of Holders to Receive Principal and Interest |
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| Section 6.9 |
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Restoration of Rights and Remedies |
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| Section 6.10 |
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Rights and Remedies Cumulative |
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| Section 6.11 |
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Delay or Omission Not Waiver |
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| Section 6.12 |
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Control by Holders |
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| Section 6.13 |
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Waiver of Past Defaults |
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| Section 6.14 |
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Undertaking For Costs |
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2
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Page Number |
| ARTICLE VII |
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TRUSTEE |
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| Section 7.1 |
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Duties of Trustee |
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| Section 7.2 |
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Rights of Trustee |
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| Section 7.3 |
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Individual Rights of Trustee |
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| Section 7.4 |
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Trustee’s Disclaimer |
|
|
| Section 7.5 |
|
Notice of Defaults |
|
|
| Section 7.6 |
|
Reports by Trustee to Holders |
|
|
| Section 7.7 |
|
Compensation and Indemnity |
|
|
| Section 7.8 |
|
Replacement of Trustee |
|
|
| Section 7.9 |
|
Successor Trustee by Merger, Etc. |
|
|
| Section 7.10 |
|
Eligibility; Disqualification |
|
|
| Section 7.11 |
|
Referential Collection of Claims Against Company |
|
|
| ARTICLE VIII |
|
SATISFACTION AND DISCHARGE; DEFEASANCE |
|
|
| Section 8.1 |
|
Satisfaction and Discharge of Indenture |
|
|
| Section 8.2 |
|
Application of Trust Funds; Indemnification |
|
|
| Section 8.3 |
|
Legal Defeasance of Securities of Any Series |
|
|
| Section 8.4 |
|
Covenant Defeasance |
|
|
| Section 8.5 |
|
Repayment to Company |
|
|
| ARTICLE IX |
|
AMENDMENTS AND WAIVERS |
|
|
| Section 9.1 |
|
Without Consent of Holders |
|
|
| Section 9.2 |
|
With Consent of Holders |
|
|
| Section 9.3 |
|
Limitations |
|
|
| Section 9.4 |
|
Compliance with Trust Indenture Act |
|
|
| Section 9.5 |
|
Revocation and Effect of Consents |
|
|
| Section 9.6 |
|
Notation on or Exchange of Securities |
|
|
| Section 9.7 |
|
Trustee Protected |
|
|
| ARTICLE X |
|
MISCELLANEOUS |
|
|
| Section 10.1 |
|
Trust Indenture Act Controls |
|
|
| Section 10.2 |
|
Notices |
|
|
| Section 10.3 |
|
Communication by Holders with Other Holders |
|
|
| Section 10.4 |
|
Certificate and Opinion as to Conditions Precedent |
|
|
| Section 10.5 |
|
Statements Required in Certificate or Opinion |
|
|
| Section 10.6 |
|
Rules by Trustee and Agents |
|
|
| Section 10.7 |
|
Legal Holidays |
|
|
| Section 10.8 |
|
No Recourse Against Others |
|
|
| Section 10.9 |
|
Counterparts |
|
|
| Section 10.10 |
|
Governing Laws |
|
|
| Section 10.11 |
|
No Adverse Interpretation of Other Agreements |
|
|
| Section 10.12 |
|
Successors |
|
|
| Section 10.13 |
|
Severability |
|
|
| Section 10.14 |
|
Table of Contents, Headings, Etc. |
|
|
| ARTICLE XI |
|
SINKING FUNDS |
|
|
| Section 11.1 |
|
Applicability of Article |
|
|
| Section 11.2 |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
| Section 11.3 |
|
Redemption of Securities for Sinking Fund |
|
|
| ARTICLE XII |
|
SUBORDINATION OF SECURITIES |
|
|
| Section 12.1 |
|
Agreement of Subordination |
|
|
| Section 12.2 |
|
Payments to Holders |
|
|
| Section 12.3 |
|
Subrogation of Securities |
|
|
| Section 12.4 |
|
Authorization to Effect Subordination |
|
|
| Section 12.5 |
|
Notice to Trustee |
|
|
| Section 12.6 |
|
Trustee’s Relation to Senior Indebtedness |
|
|
| Section 12.7 |
|
No Impairment of Subordination |
|
|
| Section 12.8 |
|
Article Applicable to Paying Agents |
|
|
| Section 12.9 |
|
Senior Indebtedness Entitled to Rely |
|
|
3
CROSS REFERENCE TABLE
|
|
|
|
|
|
|
| Trust Indenture
Act Section |
|
|
|
Indenture
Section |
|
| Section 310 |
|
(a)(1) |
|
|
7.10 |
|
|
|
(a)(2) |
|
|
7.10 |
|
|
|
(a)(3) |
|
|
N/A |
|
|
|
(a)(4) |
|
|
N/A |
|
|
|
(a)(5) |
|
|
7.10 |
|
|
|
(b) |
|
|
7.10 |
|
| Section 311 |
|
(a) |
|
|
7.11 |
|
|
|
(b) |
|
|
7.11 |
|
|
|
(c) |
|
|
N/A |
|
| Section 312 |
|
(a) |
|
|
2.6 |
|
|
|
(b) |
|
|
10.3 |
|
|
|
(c) |
|
|
10.3 |
|
| Section 313 |
|
(a) |
|
|
7.6 |
|
|
|
(b)(1) |
|
|
7.6 |
|
|
|
(b)(2) |
|
|
7.6 |
|
|
|
(c)(1) |
|
|
7.6 |
|
|
|
(d) |
|
|
7.6 |
|
| Section 314 |
|
(a) |
|
|
4.2, 10.5 |
|
|
|
(b) |
|
|
N/A |
|
|
|
(c)(1) |
|
|
10.4 |
|
|
|
(c)(2) |
|
|
10.4 |
|
|
|
(c)(3) |
|
|
N/A |
|
|
|
(d) |
|
|
N/A |
|
|
|
(e) |
|
|
10.5 |
|
|
|
(f) |
|
|
N/A |
|
| Section 315 |
|
(a) |
|
|
7.1 |
|
|
|
(b) |
|
|
7.5 |
|
|
|
(c) |
|
|
7.1 |
|
|
|
(d) |
|
|
7.1 |
|
|
|
(e) |
|
|
6.14 |
|
| Section 316 |
|
(a) |
|
|
2.10 |
|
|
|
(a)(1)(A) |
|
|
6.12 |
|
|
|
(a)(1)(B) |
|
|
6.13 |
|
|
|
(b) |
|
|
6.8 |
|
| Section 317 |
|
(a)(1) |
|
|
6.3 |
|
|
|
(a)(2) |
|
|
6.4 |
|
|
|
(b) |
|
|
2.5 |
|
| Section 318 |
|
(a) |
|
|
10.1 |
|
| * |
This Cross Reference Table shall not, for any purpose, be deemed to be part of the Indenture. |
4
Subordinated Debt Indenture dated as of
, 20 between RENASANT CORPORATION, a Mississippi corporation (“Company”), and
, as trustee (“Trustee”).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued
under this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts” means any additional amounts which are required hereby or by any Security, under circumstances specified herein
or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any specified person means any other person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as used with respect
to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.
“Agent” means any Registrar, Paying Agent or Service Agent.
“Authorized Newspaper” means a newspaper in an official language of the country of publication customarily published at least once a
day for at least five days in each calendar week and of general circulation in the place in connection with which the term is used. If it shall be impractical in the opinion of the Trustee to make any publication of any notice required hereby in an
Authorized Newspaper, any publication or other notice in lieu thereof that is made or given by the Trustee shall constitute a sufficient publication of such notice.
“Bearer Security” means any Security, including any interest coupon appertaining thereto, that does not provide for the
identification of the Holder thereof.
“Board of Directors” means the Board of Directors of the Company or any duly authorized
committee thereof.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the
Company to have been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
“Business Day” means, unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for
a particular Series, any day except a Saturday, Sunday or a legal holiday in the City of Tupelo, Mississippi, on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock” means any and all shares, interests, participations, rights or other equivalents (however designated) of corporate
stock.
“Company” means the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s
principal executive officer, principal financial officer or principal accounting officer.
“Company Request” means a written
request signed in the name of the Company by its Chief Executive Officer, the President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
5
“Corporate Trust Office” means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered.
“Default” means any event which is, or after notice or
passage of time or both would be, an Event of Default.
“Depository” means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global Securities, the person designated as Depository for such Series by the Company, which Depository shall be a clearing agency registered under the Exchange Act; and if at any
time there is more than one such person, “Depository” as used with respect to the Securities of any Series shall mean the Depository with respect to the Securities of such Series.
“Designated Senior Indebtedness” means any of the Company’s senior indebtedness that expressly provides that it is
“designated senior indebtedness” for purposes of this Indenture (provided that the instrument, agreement or other document creating or evidencing such Senior Indebtedness may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of Designated Senior Indebtedness).
“Discount Security” means any Security that provides
for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration of the Stated Maturity thereof pursuant to Section 6.2.
“Dollars” and “$” means the currency of the United States of America.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“GAAP” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the
accounting profession, which are in effect as of the date of determination.
“Global Security” or “Global Securities”
means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depository for such Series or its nominee, and registered in the name of such
Depository or nominee.
“Holder” or “Securityholder” means a person in whose name a Security is registered or the
holder of a Bearer Security.
“indebtedness” means, with respect to any person, and without duplication, (a) all
indebtedness, obligations and other liabilities (contingent or otherwise) of such person for borrowed money (including obligations of the Company in respect of overdrafts, foreign exchange contracts, currency exchange agreements, interest rate
protection agreements, and any loans or advances from banks, whether or not evidenced by notes or similar instruments) or evidenced by bonds, debentures, notes or similar instruments (whether or not the recourse of the lender is to the whole of the
assets of such person or to only a portion thereof) (other than any account payable or other accrued current liability or obligation incurred in the ordinary course of business in connection with the obtaining of materials or services), (b) all
reimbursement obligations and other liabilities (contingent or otherwise) of such person with respect to letters of credit, bank guarantees or bankers’ acceptances, (c) all obligations and liabilities (contingent or otherwise) in respect
of leases of such person required, in conformity with generally accepted accounting principles, to be accounted for as capitalized lease obligations on the balance sheet of such person and all obligations and other liabilities (contingent or
otherwise) under any lease or related document (including a purchase agreement) in connection with the lease of real property which provides that such person is contractually obligated to purchase or cause a third party to purchase the leased
property and thereby guarantee a minimum residual value of the leased property to the lessor and the obligations of such person under such lease or related document to purchase or to cause a third party to purchase such leased property, (d) all
obligations of such person (contingent or otherwise) with respect to an interest rate or other swap, cap or collar agreement or other
6
similar instrument or agreement or foreign currency hedge, exchange, purchase or similar instrument or agreement, (e) all direct or indirect guaranties or similar agreements by such person
in respect of, and obligations or liabilities (contingent or otherwise) of such person to purchase or otherwise acquire or otherwise assure a creditor against loss in respect of indebtedness, obligations or liabilities of another person of the kind
described in clauses (a) through (d), (f) any indebtedness or other obligations described in clauses (a) through (e) secured by any mortgage, pledge, lien or other encumbrance existing on property which is owned or held by such
person, regardless of whether the indebtedness or other obligation secured thereby shall have been assumed by such person and (g) any and all refinancings, replacements, deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of the kind described in clauses (a) through (f).
“Indenture” means this Subordinated Debt Indenture as amended or supplemented from time to time and shall include the form and terms
of particular Series of Securities established as contemplated hereunder.
“interest” with respect to any Discount Security
which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with
respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, or otherwise.
“Officer” means the Chief Executive Officer, the President, any
Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
“Officers’
Certificate” means a certificate signed by two Officers, one of whom must be the Company’s principal executive officer, principal financial officer or principal accounting officer.
“Opinion of Counsel” means a written opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an
employee of or counsel to the Company.
“person” means any individual, corporation, partnership, joint venture, association,
limited liability company, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“principal” or “principal amount” of a Security means the principal amount of the Security plus, when appropriate, the
premium, if any, on, and any Additional Amounts in respect of, the Security.
“Representative” means the (a) indenture
trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with respect to any Senior Indebtedness that does not have any such trustee, agent or other representative, (i) in the case of such Senior Indebtedness
issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting with the consent of the required persons necessary to bind such
holders or owners of such Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness, the holder or owner of such Senior Indebtedness.
“Responsible Officer” means any officer of the Trustee in its Corporate Trust Office and also means, with respect to a particular
corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her knowledge of and familiarity with a particular subject.
“SEC” means the Securities and Exchange Commission.
“Securities” means the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under
this Indenture.
“Senior Indebtedness” means the principal, premium, if any, interest, including any interest accruing after
bankruptcy, and rent or termination payment on or other amounts due on the Company’s current or future indebtedness, whether created, incurred, assumed, guaranteed or in effect guaranteed by us, including any deferrals,
7
renewals, extensions, refundings, amendments, modifications or supplements to the above. However, Senior Indebtedness does not include: (i) indebtedness that expressly provides that it shall
not be senior in right of payment to the Securities or expressly provides that it is on the same basis or junior to the Securities; (ii) the Company’s indebtedness to any of the Company’s Subsidiaries; and (iii) the Securities.
“Series” or “Series of Securities” means each series of debentures, notes or other debt instruments of the Company
created pursuant to Sections 2.1 and 2.2 hereof.
“Stated Maturity” when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” of any specified person means any corporation, association or other business entity of which more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such person or
one or more of the other Subsidiaries of that person or a combination thereof.
“TIA” means the Trust Indenture Act of 1939 (15
U.S. Code Sections 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment, the
Trust Indenture Act as so amended.
“Trustee” means the person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each person who is then a Trustee hereunder, and if at any time there is more than one
such person, “Trustee” as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations” means securities which are (a) direct obligations of the United States of America for the payment
of which its full faith and credit is pledged or (b) obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, and which in the case of (a) and (b) are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced
by such depository receipt.
Section 1.2 Other Definitions.
|
|
|
| Term |
|
Defined in Section |
| “Bankruptcy Law” |
|
6.1 |
| “Custodian” |
|
6.1 |
| “Event of Default” |
|
6.1 |
| “Legal Holiday” |
|
10.7 |
| “mandatory sinking fund payment” |
|
11.1 |
| “optional sinking fund payment” |
|
11.1 |
| “Paying Agent” |
|
2.4 |
| “Payment Blockage Notice” |
|
12.2 |
| “Registrar” |
|
2.4 |
| “Service Agent” |
|
2.4 |
| “successor person |
|
5.1 |
8
Section 1.3 Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
“Commission” means the SEC.
“indenture securities” means the Securities.
“indenture security holder” means a Securityholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4 Rules Of Construction. Unless the context
otherwise requires:
| |
(a) |
a term has the meaning assigned to it; |
| |
(b) |
an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles; |
| |
(c) |
references to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles, consistently applied, in effect as of the time when and for the period as to
which such accounting principles are to be applied; |
| |
(d) |
“or” is not exclusive; |
| |
(e) |
words in the singular include the plural, and in the plural include the singular; and |
| |
(f) |
provisions apply to successive events and transactions. |
ARTICLE II
THE SECURITIES
Section 2.1 Issuable In Series. The aggregate principal amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, supplemental indenture or Officers’
Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental
indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall
accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture, but all Securities issued hereunder shall be
subordinate and junior in right of payment, to the extent and in the manner set forth in Article XII, to all Senior Indebtedness of the Company.
Section 2.2 Establishment Of Terms Of Series Of Securities. At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of Subsection 2.2(a) and either as to such Securities within the Series or as to the Series generally, in the case of Subsections 2.2(b) through 2.2(q)) by or pursuant to a
Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture or an Officers’ Certificate:
9
| |
(a) |
the title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series); |
| |
(b) |
the price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued; |
| |
(c) |
any limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6); |
| |
(d) |
the date or dates on which the principal of the Securities of the Series is payable; |
| |
(e) |
the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be payable and any regular
record date for the interest payable on any interest payment date; |
| |
(f) |
the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail or other means; |
| |
(g) |
if applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
|
| |
(h) |
the obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| |
(i) |
the dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such
repurchase obligations; |
| |
(j) |
if other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable; |
| |
(k) |
the forms of the Securities of the Series in bearer or fully registered form (and, if in fully registered form, whether the Securities will be issuable as Global Securities); |
| |
(l) |
if other than the entire principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.2; |
| |
(m) |
the provisions, if any, relating to any lien, security or encumbrance provided for the Securities of the Series; |
| |
(n) |
any addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 6.2; |
10
| |
(o) |
any addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series; |
| |
(p) |
any other terms of the Securities of the Series (which may modify or delete any provision of this Indenture insofar as it applies to such Series); and |
| |
(q) |
any depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed herein. |
All Securities of any one Series need not be issued at the same time and may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the authorized principal amount of any Series may not be increased to provide for issuances of
additional Securities of such Series, unless otherwise provided in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating
agent. Such a signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at
any time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Such
Company Order may authorize authentication and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions shall be promptly confirmed in writing. Each Security shall be dated
the date of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount
for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except as provided in Section 2.8.
Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected
in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or of Securities within that Series and the terms of the Securities of that Series or of
Securities within that Series, (b) an Officers’ Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised
by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust committee of directors and/or Vice Presidents shall determine that such
action would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4 Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or
places specified with respect to such Series pursuant to Section 2.2, an office or agency
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where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities of such Series may be surrendered for registration of transfer or exchange
(“Registrar”) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served (“Service Agent”). The Registrar shall keep a register with respect to each Series of
Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent or Service Agent. If at any time the Company
shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate
Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars, additional paying agents or additional service agents and may from
time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant
to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying
agent or additional service agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service Agent” includes any additional service agent.
The Company hereby appoints the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar,
Paying Agent or Service Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will
notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent.
Section 2.6 Securityholder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days
before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of
Securities.
Section 2.7 Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar
with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit
registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but
the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections
2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue, register the transfer of, or exchange
Securities of any Series for the period beginning at the opening of business 15 days immediately preceding the mailing of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of
such mailing, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for
redemption in part.
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Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated
Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to their satisfaction of
the destruction, loss or theft of any Security and (b) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security of the same
Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9 Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary of the Company or
an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases
to accrue (to the extent of the Maturity of such Security if less than the entire principal amount is due and payable on such date of Maturity).
A Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company
shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver, only Securities of a Series that the Trustee knows
are so owned shall be so disregarded.
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Section 2.11 Temporary Securities. Until definitive Securities are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive Securities of the same Series and Stated Maturity in exchange for temporary Securities. Until so
exchanged, temporary Securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12
Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities to the Company, unless the Company otherwise directs; provided that the Trustee shall not
be required to destroy Securities. The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay
the defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix the record date and payment
date. At least 10 days before the record date, the Company shall mail to the Trustee and to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid. The Company may pay defaulted
interest in any other lawful manner.
Section 2.14 Global Securities.
| |
(a) |
Terms Of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities of a Series shall be issued in whole or in part in the form of one
or more Global Securities and the Depository for such Global Security or Securities. |
| |
(b) |
Transfer And Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 hereof and in addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 hereof
for Securities registered in the names of Holders other than the Depository for such Security or its nominee only if (i) such Depository notifies the Company that it is unwilling or unable to continue as Depository for such Global Security or
if at any time such Depository ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to appoint a successor Depository registered as a clearing agency under the Exchange Act within 90 days of such
event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented by such
Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depository shall direct in writing in an
aggregate principal amount equal to the principal amount of the Global Security with like tenor and terms. |
Except as
provided in this Section 2.14(b), a Global Security may not be transferred except as a whole by the Depository with respect to such Global Security to a nominee of such Depository, by a nominee of such Depository to such Depository or another
nominee of such Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.
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(c) |
Legend. Any Global Security issued hereunder shall bear a legend in substantially the following form: |
“This Security is a Global Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for Securities registered in the name of a person other than the Depository
14
or its nominee only in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depository to a nominee of the Depository, by a nominee of the
Depository to the Depository or another nominee of the Depository or by the Depository or any such nominee to a successor Depository or a nominee of such a successor Depository.”
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(d) |
Acts Of Holders. The Depository, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a
Holder is entitled to give or take under the Indenture. |
| |
(e) |
Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be
made to the Holder thereof. |
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(f) |
Consents, Declaration And Directions. Except as provided in Section 2.14(e), the Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of
such Series represented by a Global Security as shall be specified in a written statement of the Depository with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture. |
Section 2.15 CUSIP Numbers. The Company in issuing the Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not
be affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
Section 3.1 Notice To Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the
Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and
the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption date and the principal amount of Series
of Securities to be redeemed. The Company shall give the notice at least 45 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection of Securities to be Redeemed. Unless otherwise indicated for a particular Series by a Board Resolution, a
supplemental indenture or an Officers’ Certificate, if less than all the Securities of a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee deems fair and appropriate.
The Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have denominations larger than
$1,000. Securities of the Series and portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other denominations pursuant to Section 2.2(j), the minimum
principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
Section 3.3 Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities are to be redeemed and, if any Bearer
Securities are outstanding, publish on one occasion a notice in an Authorized Newspaper.
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The notice shall identify the Securities of the Series to be redeemed and shall state:
| |
(b) |
the redemption price; |
| |
(c) |
the name and address of the Paying Agent; |
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(d) |
that Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price; |
| |
(e) |
that interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date; |
| |
(f) |
the CUSIP number, if any; and |
| |
(g) |
any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed. |
At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at its expense.
Section 3.4 Effect of Notice of Redemption. Once notice of redemption is mailed or published as provided in Section 3.3,
Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. A notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price plus accrued interest to the redemption date, provided that installments of interest whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders of such Securities (or one or more predecessor
Securities) registered at the close of business on the relevant record date therefor according to their terms and the terms of this Indenture.
Section 3.5 Deposit of Redemption Price. On or before the redemption date, the Company shall deposit with the Paying Agent money
sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6
Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of
the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1 Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of
Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture.
Section 4.2 SEC Reports. The Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the
annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA Section 314(a). Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of
such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled
to rely exclusively on an Officers’ Certificate).
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Section 4.3 Compliance Certificate. The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge
the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of
Default shall have occurred, describing all such Defaults or Events of Default of which he may have knowledge).
The Company will, so long
as any of the Securities are outstanding, deliver to the Trustee, forthwith upon becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or
proposes to take with respect thereto.
Section 4.4 Stay, Extension and Usury Laws. The Company covenants (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture or the Securities and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.5 Corporate Existence. Subject to Article V, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence and the rights (charter and statutory), licenses and franchises of the Company; provided, however, that the Company shall not be required to preserve any such right, license or franchise if
the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries taken as a whole and that the loss thereof is not adverse in any material respect to the
Holders.
Section 4.6 Taxes. The Company shall pay prior to delinquency all taxes, assessments and governmental levies, except
as contested in good faith and by appropriate proceedings.
ARTICLE V
SUCCESSORS
Section 5.1 When Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of its properties and assets to, any person (a “successor person”) unless:
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(a) |
the Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes the
Company’s obligations on the Securities and under this Indenture; and |
| |
(b) |
immediately after giving effect to the transaction, no Default or Event of Default shall have occurred and be continuing. |
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers’ Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.
Section 5.2 Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided, however,
that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
17
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. “Event of Default,” wherever used herein with respect to Securities of any Series, means
any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
| |
(a) |
default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of such payment is deposited by
the Company with the Trustee or with a Paying Agent prior to the expiration of such period of 30 days); |
| |
(b) |
default in the payment of principal of any Security of that Series at its Maturity; |
| |
(c) |
default in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; |
| |
(d) |
default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty for which the consequences of nonperformance or breach are addressed elsewhere in this
Section 6.1 and other than a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of not less than a majority in principal amount of the outstanding Securities of that Series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; |
| |
(e) |
the Company pursuant to or within the meaning of any Bankruptcy Law: |
| |
i. |
commences a voluntary case, |
| |
ii. |
consents to the entry of an order for relief against it in an involuntary case, |
| |
iii. |
consents to the appointment of a Custodian of it or for all or substantially all of its property, |
| |
iv. |
makes a general assignment for the benefit of its creditors, or |
| |
v. |
generally is unable to pay its debts as the same become due; or |
| |
(f) |
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
| |
i. |
is for relief against the Company in an involuntary case, |
| |
ii. |
appoints a Custodian of the Company or for all or substantially all of its property, or |
| |
iii. |
orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 60 days; or |
| |
(g) |
any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance with
Section 2.2(n). |
The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for
the relief of
debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
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Section 6.2 Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(e) or (f)), then in every such case the Trustee or the Holders of not less than a
majority in principal amount of the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such
Securities) of and accrued and unpaid interest, if any, on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or portion thereof) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or (f) shall occur, the principal amount (or portion thereof) of
and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any Series has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 6.3 Collection Of Indebtedness And Suits For Enforcement By Trustee.
The Company covenants that if:
| |
(a) |
default is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, |
| |
(b) |
default is made in the payment of principal of any Security at the Maturity thereof, or |
| |
(c) |
default is made in the deposit of any sinking fund payment when and as due by the terms of a Security, |
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to
judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities of any Series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
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Section 6.4 Trustee May File Proofs Of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the whole amount of principal and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same, and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims Without Possession Of Securities. All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been recovered.
Section 6.6 Application of Money
Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or interest, upon
presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7 Limitation On Suits. No Holder of any Security of any Series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
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(a) |
such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series; |
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(b) |
the Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder; |
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(c) |
such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; |
20
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(d) |
the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and |
| |
(e) |
no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities of that Series;
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it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 6.8
Unconditional Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Security on the Stated Maturity or Stated Maturities expressed in such Security (or, in the case
of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 6.9 Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 6.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Control by Holders. The Holders of a majority in principal amount of the outstanding Securities of any Series shall
have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such Series, provided that:
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(a) |
such direction shall not be in conflict with any rule of law or with this Indenture; |
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(b) |
the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and |
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(c) |
subject to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability. |
21
Section 6.13 Waiver Of Past Defaults. The Holders of not less than a majority in
principal amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default (a) in the
payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any
related payment default that resulted from such acceleration) or (b) in respect of a covenant or provision hereof which cannot be modified or amended without the consent of the Holder of each outstanding Security of such Series affected. Upon
any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.14 Undertaking For Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees,
against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of or interest on any Security on or after the Stated Maturity or Stated Maturities expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
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(a) |
If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs. |
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(b) |
Except during the continuance of an Event of Default: |
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i. |
The Trustee need perform only those duties that are specifically set forth in this Indenture and no others. |
| |
ii. |
In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officers’ Certificates or Opinions of
Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of Counsel to determine whether or not they conform to the requirements of this Indenture. |
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(c) |
The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that: |
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i. |
This paragraph does not limit the effect of paragraph (b) of this Section. |
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ii. |
The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts. |
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iii. |
The Trustee shall not be liable with respect to any action taken, suffered or omitted to be
|
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taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
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(d) |
Every provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section. |
| |
(e) |
The Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder unless it receives indemnity satisfactory to it against any loss, liability or expense.
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(f) |
The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to
the extent required by law. |
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(g) |
No provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it. |
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(h) |
The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections, immunities and standard of care as are set forth in paragraphs (a), (b) and (c) of this Section with respect
to the Trustee. |
Section 7.2 Rights of Trustee.
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(a) |
The Trustee may rely on and shall be protected in acting or refraining from acting upon any document believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document. |
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(b) |
Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’
Certificate. |
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(c) |
The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depository shall be deemed an agent of the Trustee and the Trustee shall not be
responsible for any act or omission by any Depository. |
| |
(d) |
The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s conduct does not constitute
negligence or willful misconduct. |
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(e) |
The Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder
without negligence and in good faith and in reliance thereon. |
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(f) |
The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities unless such Holders shall have offered to
the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. |
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(g) |
The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder without negligence and in good faith and in reliance thereon. |
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(h) |
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit. |
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(i) |
The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture. |
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee’s Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5 Notice Of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any
Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall mail to each Securityholder of the Securities of that Series and, if any Bearer Securities are outstanding, publish on one occasion in an Authorized Newspaper,
notice of a Default or Event of Default within 90 days after it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice is in the
interests of Securityholders of that Series.
Section 7.6 Reports by Trustee to Holders. Within 60 days after May 15 in
each year, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar and, if any Bearer Securities are outstanding, publish in an Authorized Newspaper, a brief report dated
as of such May 15, in accordance with, and to the extent required under, TIA Section 313.
A copy of each report at the time of
its mailing to Securityholders of any Series shall be filed with the SEC and each stock exchange, if any, on which the Securities of that Series are listed. The Company shall promptly notify the Trustee when Securities of any Series are listed on
any stock exchange.
Section 7.7 Compensation and Indemnity. The Company shall pay to the Trustee from time to time
compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any loss,
liability or expense, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or
Agent. The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. The Company shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel and the Company shall pay
the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by
the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through negligence or willful misconduct.
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To secure the Company’s payment obligations in this Section, the Trustee shall have a lien
prior to the Securities of any Series on all money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(e) or (f) occurs, the
expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the termination of this Indenture.
Section 7.8 Replacement of Trustee. A resignation
or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of
the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect
to Securities of one or more Series if:
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(a) |
the Trustee fails to comply with Section 7.10; |
| |
(b) |
the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law; |
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(c) |
a Custodian or public officer takes charge of the Trustee or its property; or |
| |
(d) |
the Trustee becomes incapable of acting. |
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the
Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the
applicable Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall
deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in
Section 7.7, the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as
Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series and, if any Bearer Securities are outstanding, publish such notice on one occasion in an Authorized Newspaper.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Section 7.9 Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to, another person, the successor person without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification. This Indenture shall always have a Trustee who satisfies the
25
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b).
Section 7.11 Referential Collection of Claims Against
Company. The Trustee is subject to TIA Section 311(a), excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to be of further effect (except
as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when
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i. |
all Securities theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
|
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ii. |
all such Securities not theretofore delivered to the Trustee for cancellation |
| |
(1) |
have become due and payable, or |
| |
(2) |
will become due and payable at their Stated Maturity within one year, or |
| |
(3) |
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company; or |
| |
(4) |
are deemed paid and discharged pursuant to Section 8.3, as applicable; |
and the Company,
in the case of (1), (2) and (3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount sufficient for the purpose of paying and discharging the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or
redemption date, as the case may be;
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(b) |
the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
| |
(c) |
the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the
Company to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.1, 8.2 and 8.5 shall survive.
Section 8.2 Application of Trust Funds; Indemnification.
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(a) |
Subject to the provisions of Section 8.5, all money deposited with the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations deposited with the |
26
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Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or
through any Paying Agent (other than the Company acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been deposited with or received by the
Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4. |
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(b) |
The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders. |
| |
(c) |
The Trustee shall deliver or pay to the Company from time to time upon Company Request any U.S. Government Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which
such U.S. Government Obligations or money were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations held under this Indenture. |
Section 8.3 Legal Defeasance of Securities of any Series. Unless this Section 8.3 is otherwise specified, pursuant to
Section 2.2(p), to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit
referred to in subparagraph (c) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense of the Company, shall, at Company Request,
execute proper instruments acknowledging the same), except as to:
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(a) |
the rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (c) hereof, (i) payment of the principal of and each installment of principal of and interest on
the outstanding Securities of such Series on the Stated Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on
which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series; |
| |
(b) |
the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3, and 8.5; and |
| |
(c) |
the rights, powers, trust and immunities of the Trustee hereunder; provided that, the following conditions shall have been satisfied: |
| |
i. |
the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms,
will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a regionally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the
Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due; |
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ii. |
such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; |
27
| |
iii. |
no Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
| |
iv. |
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that (A) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (B) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the
Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred; |
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v. |
the Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the intent of preferring the Holders of the Securities of such Series over any
other creditors of the Company or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and |
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vi. |
the Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this Section
have been complied with. |
Section 8.4 Covenant Defeasance. Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2(p) to be inapplicable to Securities of any Series, on and after the 91st day after the date of the deposit referred to in subparagraph (a) hereof, the Company may omit to comply with respect to the Securities of any
Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4, 4.6, and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’
Certificate delivered pursuant to Section 2.2(p) (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified
in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers’ Certificate delivered pursuant to Section 2.2(n) and designated as an Event of Default shall not constitute a Default or Event of Default
hereunder, with respect to the Securities of such Series, provided that the following conditions shall have been satisfied:
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(a) |
With reference to this Section 8.4, the Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the
following payments specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, cash in Dollars and/or U.S. Government Obligations, which through the payment of interest and principal in respect
thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the
opinion of a regionally recognized firm of independent certified public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any
mandatory sinking fund payments in respect of the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due; |
| |
(b) |
Such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; |
| |
(c) |
No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
|
| |
(d) |
The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance had not occurred; and |
28
| |
(e) |
The Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the covenant defeasance contemplated by
this Section have been complied with. |
Section 8.5 Repayment to Company. The Trustee and the Paying Agent shall
pay to the Company upon request any money held by them for the payment of principal and interest that remains unclaimed for six months. After that, Securityholders entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1 Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of
one or more Series without the consent of any Securityholder:
| |
(a) |
to cure any ambiguity, defect or inconsistency; |
| |
(b) |
to comply with Article V; |
| |
(c) |
to provide for uncertificated Securities in addition to or in place of certificated Securities; |
| |
(d) |
to make any change that does not adversely affect the rights of any Securityholder; |
| |
(e) |
to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture; |
| |
(f) |
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or |
| |
(g) |
to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA. |
Section 9.2 With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of
such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such
Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes effective, the Company shall mail to the Holders of Securities
affected thereby and, if any Bearer Securities affected thereby are outstanding, publish on one occasion in an Authorized Newspaper, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to mail or publish such
notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
29
Section 9.3 Limitations. Without the consent of each Securityholder affected, an
amendment or waiver may not:
| |
(a) |
reduce the amount of Securities whose Holders must consent to an amendment, supplement or waiver; |
| |
(b) |
reduce the rate of or extend the time for payment of interest (including default interest) on any Security; |
| |
(c) |
reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation; |
| |
(d) |
reduce the principal amount of Discount Securities payable upon acceleration of the maturity thereof; |
| |
(e) |
waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in
principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration); |
| |
(f) |
make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security; |
| |
(g) |
make any change in Sections 6.8, 6.13, or 9.3 (this sentence); or |
| |
(h) |
waive a redemption payment with respect to any Security. |
Section 9.4 Compliance With
Trust Indenture Act. Every amendment to this Indenture or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5 Revocation and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of
the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture
or the date the waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder of each Series affected
by such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
Section 9.6
Notation on or Exchange of Securities. The Trustee may place an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the
Trustee shall authenticate upon request new Securities of that Series that reflect the amendment or waiver.
Section 9.7 Trustee
Protected. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 7.1) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee shall sign all supplemental indentures,
except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
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ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another
provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
Section 10.2 Notices.
Any notice or communication by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in
writing and delivered in person or mailed by first-class mail:
if to the Company:
Renasant Corporation
209 Troy
Street
Tupelo, Mississippi 3804-4827
Attention: Chief Executive Officer
Telephone: (662) 680-1001
if to the Trustee:
Attention:
Telephone:
The Company or the Trustee by notice
to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a
Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar and, if any Bearer Securities are outstanding, published in an Authorized Newspaper. Failure to mail a notice or communication to a
Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not
the Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee
and each Agent at the same time.
Section 10.3 Communication by Holders with Other Holders. Securityholders of any Series may
communicate pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar
and anyone else shall have the protection of TIA Section 312(c).
Section 10.4 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
| |
(a) |
an Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and |
| |
(b) |
an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. |
Section 10.5 Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
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TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e) and shall include:
| |
(a) |
a statement that the person making such certificate or opinion has read such covenant or condition; |
| |
(b) |
a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; |
| |
(c) |
a statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been
complied with; and |
| |
(d) |
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with. |
Section 10.6 Rules by Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Securityholders of
one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7 Legal
Holidays. Unless otherwise provided by Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day that is not a Business Day. If a payment date is a Legal Holiday
at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8 No Recourse Against Others. A director, officer, employee or stockholder, as such, of the Company shall not have any
liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9 Counterparts.
This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement.
Section 10.10 Governing Laws. THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
MISSISSIPPI APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Section 10.11 No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12 Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13 Severability. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents, Headings, Etc. The Table of Contents, Cross-Reference Table, and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
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ARTICLE XI
SINKING FUNDS
Section 11.1 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement
of the Securities of a Series, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a
“mandatory sinking fund payment” and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any Series,
the cash amount of any sinking fund payment may be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such
Series.
Section 11.2 Satisfaction Of Sinking Fund Payments With Securities. The Company may, in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (a) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (b) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at
the election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms
of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers’ Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the Company.
Section 11.3 Redemption Of Securities For Sinking Fund. Not less than 45 days (unless otherwise indicated in the Board Resolution,
supplemental indenture or Officers’ Certificate in respect of a particular Series of Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers’ Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
ARTICLE XII
SUBORDINATION OF SECURITIES
Section 12.1 Agreement of Subordination. The Company covenants and agrees, and each Holder of Securities issued hereunder by his
acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to the provisions of this Article XII; and each Person holding any Security, whether upon original issue or upon transfer, assignment or exchange thereof,
accepts and agrees to be bound by such provisions.
33
The payment of the principal of and interest on all Securities (including, but not limited to,
the redemption price with respect to the Securities called for redemption in accordance with Article III as provided in the Indenture) issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the date of this Indenture or thereafter incurred.
No provision of this Article XII shall prevent the occurrence of any Default or Event of Default hereunder.
Section 12.2 Payments to Holders. No payment shall be made with respect to the principal of or interest on the Securities
(including, but not limited to, the redemption price with respect to the Securities to be called for redemption in accordance with Article III as provided in the Indenture), except payments and distributions made by the Trustee as permitted by the
first or second paragraph of Section 12.5, if:
| |
(a) |
a default in the payment of principal, premium, interest, rent or other obligations due on any Senior Indebtedness occurs and is continuing (or, in the case of Senior Indebtedness for which there is a period of grace,
in the event of such a default that continues beyond the period of grace, if any, specified in the instrument or lease evidencing such Senior Indebtedness), unless and until such default shall have been cured or waived or shall have ceased to exist;
or |
| |
(b) |
a default, other than a payment default, on a Designated Senior Indebtedness occurs and is continuing that then permits holders of such Designated Senior Indebtedness to accelerate its maturity and the Trustee receives
a notice of the default (a “Payment Blockage Notice”) from a Representative or the Company. |
If the Trustee
receives any Payment Blockage Notice pursuant to clause (ii) above, no subsequent Payment Blockage Notice shall be effective for purposes of this Section unless and until (A) at least 365 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice, and (B) all scheduled payments of principal, premium, if any, and interest on the Securities that have come due have been paid in full in cash. No nonpayment default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to the Trustee shall be, or be made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions in respect of the Securities upon the earlier of:
| |
(1) |
the date upon which the default is cured or waived or ceases to exist, or |
| |
(2) |
in the case of a default referred to in clause (ii) above, 179 days pass after notice is received if the maturity of such Designated Senior Indebtedness has not been accelerated, unless this Article XII otherwise
prohibits the payment or distribution at the time of such payment or distribution. |
Upon any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution or winding-up or liquidation or reorganization of the Company, whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Indebtedness shall first be paid in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, or payment thereof
in accordance with its terms provided for in cash or other payment satisfactory to the holders of such Senior Indebtedness, before any payment is made on account of the principal of or interest on the Securities (except payments made pursuant to
Article VI from monies deposited with the Trustee pursuant thereto prior to commencement of proceedings for such dissolution, winding-up, liquidation or reorganization); and upon any such dissolution or winding-up or liquidation or reorganization of
the Company or bankruptcy, insolvency, receivership or other proceeding, any payment by the Company, or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Securities
or the Trustee would be entitled, except for the provision of this Article XII, shall (except as aforesaid) be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or
distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, or as otherwise required by law
34
or a court order) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any Senior Indebtedness may have been
issued, as their respective interests may appear, to the extent necessary to pay all Senior Indebtedness in full, in cash or other payment satisfactory to the holders of such Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or distribution or provision therefor is made to the Holders of the Securities or to the Trustee.
For purposes of this Article XII, the words, “cash, property or securities” shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any other person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in this Article XII with respect to
the Securities to the payment of all Senior Indebtedness which may at the time be outstanding; provided that (i) the Senior Indebtedness is assumed by the new person, if any, resulting from any reorganization or readjustment, and (ii) the
rights of the holders of Senior Indebtedness (other than leases which are not assumed by the Company or the new person, as the case may be) are not, without the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another
person upon the terms and conditions provided for in Article V shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 12.2 if such other person shall, as a part of such consolidation,
merger, conveyance or transfer, comply with the conditions stated in Article V.
In the event of the acceleration of the Securities
because of an Event of Default, no payment or distribution shall be made to the Trustee or any Holder of Securities in respect of the principal of or interest on the Securities (including, but not limited to, the redemption price with respect to the
Securities called for redemption in accordance with Article III as provided in the Indenture), except payments and distributions made by the Trustee as permitted by the first or second paragraph of Section 12.5, until all Senior Indebtedness
has been paid in full in cash or other payment satisfactory to the holders of Senior Indebtedness or such acceleration is rescinded in accordance with the terms of this Indenture. If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Indebtedness of the acceleration at the address set forth in the notice from the Agent (or successor agent) to the Trustee as being the address to which the Trustee should send its notice
pursuant to this Section 12.2, unless there are no payment obligations of the Company thereunder and all obligations thereunder to extend credit have been terminated or expired.
In the event that, notwithstanding the foregoing provisions, any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (including, without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities before all Senior Indebtedness is paid in full in
cash or other payment satisfactory to the holders of such Senior Indebtedness, or provision is made for such payment thereof in accordance with its terms in cash or other payment satisfactory to the holders of such Senior Indebtedness, such payment
or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any Senior Indebtedness may have been issued, as their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay
all Senior Indebtedness in full in cash or other payment satisfactory to the holders of such Senior Indebtedness, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 12.2 shall apply to claims of, or payments to, the Trustee under or pursuant to Section 7.7. This
Section 12.2 shall be subject to the further provisions of Section 12.5.
Section 12.3 Subrogation of Securities.
Subject to the payment in full of all Senior Indebtedness, the rights of the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XII (equally and ratably with the holders of all indebtedness of the Company which by its express terms is subordinated to other indebtedness of the Company to substantially the same extent as the Securities are subordinated and is
entitled to like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness until the principal and interest on
the
35
Securities shall be paid in full; and, for the purposes of such subrogation, no payments or distributions to the holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XII, and no payment over pursuant to the provisions of this Article XII, to or for the benefit of the holders of Senior Indebtedness by Holders
of the Securities or the Trustee, shall, as between the Company, its creditors other than holders of Senior Indebtedness, and the Holders of the Securities, be deemed to be a payment by the Company to or on account of the Senior Indebtedness; and no
payments or distributions of cash, property or securities to or for the benefit of the Holders of the Securities pursuant to the subrogation provisions of this Article XII, which would otherwise have been paid to the holders of Senior Indebtedness
shall be deemed to be a payment by the Company to or for the account of the Securities. It is understood that the provisions of this Article XII are and are intended solely for the purposes of defining the relative rights of the Holders of the
Securities, on the one hand, and the holders of the Senior Indebtedness, on the other hand.
Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Indebtedness, and the Holders of the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders of the Securities and creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XII of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise
of any such remedy.
Upon any payment or distribution of assets of the Company referred to in this Article XII, the Trustee, subject to
the provisions of Section 7.1, and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which such bankruptcy, dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, delivered to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon and all other facts pertinent thereto or to this Article XII.
Section 12.4 Authorization to Effect Subordination. Each Holder of a Security by the holder’s acceptance thereof
authorizes and directs the Trustee on the holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as provided in this Article XII and appoints the Trustee to act as the holder’s
attorney-in-fact for any and all such purposes. If the Trustee does not file a proper proof of claim or proof of debt in the form required in any proceeding referred to in Section 6.3 hereof at least 30 days before the expiration of the time to
file such claim, the holders of any Senior Indebtedness or their representatives are hereby authorized to file an appropriate claim for and on behalf of the Holders of the Securities.
Section 12.5 Notice to Trustee. The Company shall give prompt written notice in the form of an Officers’ Certificate to a
Responsible Officer of the Trustee and to any paying agent of any fact known to the Company which would prohibit the making of any payment of monies to or by the Trustee or any paying agent in respect of the Securities pursuant to the provisions of
this Article XII. Notwithstanding the provisions of this Article XII or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Securities pursuant to the provisions of this Article XII, unless and until a Responsible Officer of the Trustee shall have received written notice thereof at the Corporate Trust Office from the Company (in the
form of an Officers’ Certificate) or a Representative or a holder or holders of Senior Indebtedness or from any trustee thereof; and before the receipt of any such written notice, the Trustee, subject to the provisions of Section 7.1,
shall be entitled in all respects to assume that no such facts exist; provided that if on a date not fewer than two Business Days prior to the date upon which by the terms hereof any such monies may become payable for any purpose (including, without
limitation, the payment of the principal of, or premium, if any, or interest on any Security) the Trustee shall not have received, with respect to such monies, the notice provided for in this Section 12.5, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to receive such monies and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it
on or after such prior date.
36
Notwithstanding anything in this Article XII to the contrary, nothing shall prevent any payment
by the Trustee to the Holders of monies deposited with it pursuant to Section 8.1, and any such payment shall not be subject to the provisions of Section 12.1 or 12.2.
The Trustee, subject to the provisions of Section 7.1, shall be entitled to rely on the delivery to it of a written notice by a
Representative or a person representing himself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that such notice has been given by a Representative or a holder of Senior Indebtedness or a trustee on behalf
of any such holder or holders. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant
to this Article XII, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, the extent to which such person is entitled to participate in
such payment or distribution and any other facts pertinent to the rights of such person under this Article XII, and if such evidence is not furnished the Trustee may defer any payment to such person pending judicial determination as to the right of
such person to receive such payment.
Section 12.6 Trustee’s Relation to Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this Article XII in respect of any Senior Indebtedness at any time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in Section 7.11 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article XII, and no implied covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and, subject to the provisions of Section 7.1, the Trustee shall not be liable to any holder
of Senior Indebtedness if it shall pay over or deliver to Holders of Securities, the Company or any other person money or assets to which any holder of Senior Indebtedness shall be entitled by virtue of this Article XII or otherwise.
Section 12.7 No Impairment of Subordination. No right of any present or future holder of any Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the
Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or otherwise be charged with.
Section 12.8 Article Applicable to Paying Agents. If at any time any Paying Agent other than the Trustee shall have been appointed
by the Company and be then acting hereunder, the term “Trustee” as used in this Article shall (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents
and purposes as if such Paying Agent were named in this Article in addition to or in place of the Trustee; provided, however, that the first paragraph of Section 12.5 shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 12.9 Senior Indebtedness Entitled to Rely. The holders of Senior Indebtedness
(including, without limitation, Designated Senior Indebtedness) shall have the right to rely upon this Article XII, and no amendment or modification of the provisions contained herein shall diminish the rights of such holders unless such holders
shall have agreed in writing thereto.
37
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
|
| RENASANT CORPORATION |
|
| |
| By: |
| Title: |
|
| [TRUSTEE] |
|
| |
| By: |
| Title: |
38
Exhibit 5.1
|
|
|
|
|
Louisiana | Mississippi | Texas
| Florida | Alabama | North Carolina | London |
September 15, 2015
Renasant Corporation
209 Troy Street
Tupelo, Mississippi 38804-4827
Re: Renasant Corporation
Form S-3 Registration Statement
Ladies and Gentlemen:
We have acted as counsel
to Renasant Corporation, a Mississippi corporation (the “Company”), in connection with the registration pursuant to a registration statement on Form S-3 (the “Registration Statement”) to be filed by the Company with the U.S.
Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), of an unlimited amount of (i) shares of common stock, par value $5.00 per share, of the Company (the
“Common Stock”), (ii) shares of preferred stock, par value $.01 per share, of the Company, in one or more series (the “Preferred Stock”), which may be issued in the form of depositary shares evidenced by depositary receipts
(the “Depositary Shares”), (iii) debt securities of the Company (the “Debt Securities”), which may be unsecured senior debt securities (the “Senior Debt Securities”) or unsecured subordinated debt securities (the
“Subordinated Debt Securities”), (iv) warrants to purchase Common Stock, Preferred Stock or Debt Securities (the “Warrants”), (v) rights to purchase Common Stock and Preferred Stock (the “Rights”),
(vi) units comprised of two or more of any of the foregoing securities (the “Units”), and (vii) such indeterminate amount of Securities (as defined below) as may be issued in an exchange for or upon conversion of, as the case may
be, the Securities. The Common Stock, the Preferred Stock, the Depositary Shares, the Debt Securities, the Warrants, the Rights and the Units are referred to collectively as the “Securities.”
Unless otherwise specified in the applicable prospectus supplement, (1) the Depositary Shares will be issued under a deposit agreement (a
“Deposit Agreement”) between the company and the depositary to be named therein (the “Depositary”); (2) the Senior Debt Securities will be issued under one or more indentures (each, a “Senior Indenture”) to be
entered into between the Company and a trustee to be named therein (the “Senior Debt Trustee”); (3) the Subordinated Debt Securities will be issued under one or more indentures (each, a “Subordinated Indenture”) to be
entered into between the Company and a trustee to be named therein (the “Subordinated Debt Trustee”); (4) the Warrants will be issued under a warrant agreement (the “Warrant Agreement”) to be entered into between the Company
and a warrant agent to be named therein (the “Warrant Agent”); (5) the Rights will be issued under a rights agent agreement (the “Rights Agent Agreement”) between the Company and the rights agent to be named therein (the
“Rights
|
| Canal Place | 365 Canal Street, Suite 2000 | New Orleans, Louisiana
70130-6534 | 504-566-1311 | 504-568-9130 Fax | phelpsdunbar.com |
Renasant Corporation
Page
2
Agent”); and (6) the Units
will be issued pursuant to a unit agreement (the “Unit Agreement”) between the Company and a unit agent to be named therein (the “Unit Agent”), each of the foregoing agreements to be substantially in the form that has been or
will be filed (if necessary) by amendment to the Registration Statement or as an exhibit to one or more Current Reports on Form 8-K filed by the Company.
In rendering this opinion, we have examined and relied upon originals, or photostatic or certified (or otherwise satisfactorily identified)
copies, of the Registration Statement (including the exhibits attached thereto), the Articles of Incorporation of the Company, as amended through the date hereof (the “Articles”), and the Restated Bylaws of the Company, as amended through
the date hereof, and a form of Common Stock certificate. We have also examined originals, or photostatic or certified (or otherwise satisfactorily identified) copies, of such other records of the Company, certificates of officers of the Company and
other agreements, documents and instruments and have examined such questions of law as we have deemed relevant and necessary as the basis for the opinions set forth below. In such examination, we have assumed the genuineness of all signatures
appearing on all documents, the legal capacity of all natural persons signing such documents, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified,
conformed or photostatic copies, the accuracy and completeness of all corporate records made available to us by the Company, and the truth and accuracy of all facts set forth in all certificates provided to or examined by us.
We have further assumed that (i) a prospectus supplement with respect to the offer and sale of the Securities described therein will have
been filed with the Commission in compliance with the Securities Act and the rules and regulations of the Commission promulgated thereunder, (ii) certificates or instruments evidencing the Securities will have been issued in the form and on the
terms dictated by the definitive purchase agreement, underwriting agreement, Deposit Agreement, Senior Indenture, Subordinated Indenture, Warrant Agreement, Rights Agent Agreement, Unit Agreement or similar agreement applicable to such Securities,
(iii) the specific Securities offered by the Company as well as the definitive purchase agreement, underwriting agreement, Deposit Agreement, Senior Indenture, Subordinated Indenture, Warrant Agreement, Rights Agent Agreement, Unit Agreement or
similar agreement applicable to such Securities will be governed by the laws of the State of Mississippi, (iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws, rules and regulations,
including Rule 415 under the Securities Act, and solely in conformity with the Registration Statement, any amendment thereto, and the applicable prospectus supplement and as contemplated by the applicable corporate action, (v) at the time of
execution, countersignature, issuance and delivery of any Securities, the definitive purchase agreement, underwriting agreement, Deposit Agreement, Senior Indenture, Subordinated Indenture, Warrant Agreement, Rights Agent Agreement, Unit Agreement
or similar agreement applicable to such Securities will have been duly authorized, executed and delivered by the Company, and (vi) the terms of the Securities will not violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and will comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over the Company. We also have assumed that: (i) at the time of execution,
issuance and delivery of the Depositary Shares, the related Deposit Agreement will be the valid and legally binding obligation of the Depositary, enforceable against the Depositary in accordance with its terms; (ii) at the time of execution,
Renasant Corporation
Page
3
issuance and delivery of the Debt
Securities, the related Senior Indenture or Subordinated Indenture, as the case may be, will be the valid and legally binding obligation of the Senior Debt Trustee or the Subordinated Debt Trustee, as the case may be, enforceable against the Senior
Debt Trustee or the Subordinated Debt Trustee, as the case may be, in accordance with its terms; (iii) at the time of execution, countersignature, issuance and delivery of any Warrants, the related Warrant Agreement will be the valid and
legally binding obligation of the Warrant Agent and each other counterparty thereto, enforceable against the Warrant Agent and each counterparty in accordance with its terms; (iv) at the time of execution, issuance and delivery of the Rights,
the related Rights Agent Agreement will be the valid and legally binding obligation of the Rights Agent, enforceable against the Rights Agent in accordance with its terms; and (v) at the time of the execution, issuance and delivery of the
Units, the related Unit Agreement will be the valid and legally binding obligation of the Unit Agent, enforceable against the Unit Agent in accordance with its terms.
Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, and representations made
to us by officers of the Company, we are of the opinion that:
1. With respect to the issuance and sale of any Common Stock, assuming
(i) the taking by the Board of Directors of the Company or a duly constituted and acting committee of the Board of Directors of the Company (such Board of Directors and committee being referred to herein, collectively, as the “Board”)
of all necessary corporate action to authorize and approve the issuance and sale of the Common Stock and (ii) the due issuance and delivery of the shares of Common Stock, upon payment therefor, in accordance with the applicable definitive
purchase, underwriting or similar agreement approved by the Board, the Common Stock will be validly issued, fully paid and nonassessable.
2. With respect to the issuance and sale of any series of Preferred Stock, assuming (i) the taking by the Board of all necessary
corporate action to authorize and approve the issuance and sale of such series of Preferred Stock, including the powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications and restrictions
thereof, with respect to such series of Preferred Stock, (ii) the due filing of an amendment to the Articles with respect to such series of Preferred Stock and the acceptance of such amendment by the Secretary of State of Mississippi, and
(iii) the due issuance and delivery of the shares of such series of Preferred Stock, upon payment therefor, in accordance with the applicable definitive purchase, underwriting or similar agreement approved by the Board, the shares of such
series of Preferred Stock will be validly issued, fully paid and nonassessable.
3. With respect to the Depositary Shares, assuming
(i) the taking of all necessary corporate action by the Board to authorize and approve the issuance of the shares of Preferred Stock represented by such Depositary Shares and the execution and delivery of the Deposit Agreement, (ii) the
due issuance and delivery to the Depositary of the shares of Preferred Stock represented by the Depositary Shares, and (iii) the due execution, issuance and delivery of depositary receipts evidencing the Depositary Shares against deposit of the
shares of Preferred Stock in accordance with the Deposit Agreement, upon payment of the consideration for such Depositary Shares provided for in the applicable definitive purchase, underwriting or similar agreement approved by the Board in
accordance with the provisions of the Deposit Agreement and such agreement,
Renasant Corporation
Page
4
the depositary receipts evidencing
the Depositary Shares will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, and will entitle the holders thereof to the rights specified in the Depositary Shares and the
Deposit Agreement.
4. With respect to the Debt Securities, assuming (i) the qualification of the Senior Indenture or Subordinated
Indenture (including any necessary supplemental indenture), as the case may be, under the Trust Indenture Act of 1939, as amended, (ii) to the extent that the obligations of the Company under the Debt Securities may be dependent upon such
matters, (a) the due organization, valid existence and good standing under the laws of its jurisdiction of organization of the financial institution to be identified as the Senior Debt Trustee or the Subordinated Debt Trustee, as the case may
be, in the Senior Indenture or Subordinated Indenture, as the case may be, governing such Debt Securities, (b) the due qualification of such trustee to engage in the activities contemplated by the applicable indenture, (c) the compliance,
generally and with respect to acting as a trustee under the Senior Indenture or Subordinated Indenture, as the case may be, by such trustee with all applicable laws and regulations, and (d) the possession by such trustee of the requisite
organizational and legal power and authority to execute and deliver and to perform its obligations under the Senior Indenture or Subordinated Indenture, as the case may be, (iii) the taking of all necessary corporate action by the Board to
authorize and approve (a) the issuance and sale of the Debt Securities, including the form, terms, execution, delivery, performance, issuance and sale of such series of Debt Securities as contemplated by the Senior Indenture or the Subordinated
Indenture, as the case may be, and (b) the execution, delivery and performance of a supplemental indenture or officers’ certificate establishing the form and terms of such series of Debt Securities as contemplated by the Senior Indenture
or the Subordinated Indenture, as the case may be, (iv) the execution and delivery of a supplemental indenture or officers’ certificate establishing the form and terms of such series of the Debt Securities by the Company and the Senior
Debt Trustee or the Subordinated Debt Trustee (in the case of such a supplemental indenture), as the case may be, or by duly authorized officers of the Company (in the case of such an officers’ certificate), in each case in accordance with the
provisions of the Articles, the Restated Bylaws of the Company, as amended, and any resolutions of the Board and the provisions of the Senior Indenture or the Subordinated Indenture, as the case may be, (v) the execution by the Company of the
certificates evidencing the Debt Securities, the authentication by the Senior Debt Trustee or the Subordinated Debt Trustee, as the case may be, of such certificates and the Company’s issuance thereof, all in accordance with the Senior
Indenture or the Subordinated Indenture, as the case may be, and the supplemental indenture or officers’ certificate, as the case may be, establishing the form and terms of the Debt Securities, and (vi) the due issuance and delivery of the
Debt Securities, upon payment therefor, in accordance with the definitive purchase, underwriting or similar agreement approved by the Board, the Debt Securities will constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms.
5. With respect to the Warrants, assuming (i) the taking of all necessary
corporate action by the Board to authorize and approve (a) the execution and delivery of a related Warrant Agreement and the issuance and sale of the Warrants in conformity with such Warrant Agreement, (b) if the Warrants are exercisable
for shares of Common Stock, the issuance of shares of any Common Stock upon exercise of such Warrants, (c) if the Warrants are exercisable for shares of Preferred Stock, the issuance of shares of any Preferred Stock upon exercise of such
Renasant Corporation
Page
5
Warrants, and (d) if the
Warrants are exercisable for Debt Securities, the execution and delivery of the Senior Indenture or Subordinated Indenture, as the case may be, upon exercise of such Warrants, and (ii) the due execution, countersignature, issuance and delivery
of (A) such Warrants, (b) any such Common Stock, (c) any such Preferred Stock and (d) any such Debt Securities, in each case upon payment of the consideration for such Warrants provided for in the applicable definitive purchase,
underwriting or similar agreement approved by the Board and otherwise in accordance with the provisions of the applicable Warrant Agreement and such agreement, such Warrants will constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms.
6. With respect to the Rights, assuming (i) the taking of all
necessary corporate action by the Board to authorize and approve (a) the issuance and terms of the Rights, (b) the execution and delivery of the Rights Agent Agreement with respect to the Rights, (c) the issuance of any Common Stock
upon exercise of the Rights, (d) the issuance of any series of Preferred Stock upon exercise of the Rights, including the powers, designations, preferences and relative, participating, optional or other special rights, and the qualifications
and restrictions thereof, with respect to such series of Preferred Stock, (ii) the due filing of an amendment to the Articles with respect to such series of Preferred Stock and the acceptance of such amendment by the Secretary of State of
Mississippi and (iii) the due execution, countersignature, issuance and delivery of (a) the Rights, (b) any such Common Stock or (c) any such Preferred Stock, in each case upon the payment of the consideration therefor provided
for in the applicable definitive purchase, underwriting or similar agreement approved by the Board, and in accordance with the provisions of the applicable Rights Agent Agreement and such agreement, such Rights will constitute valid and legally
binding obligations of the Company, enforceable against the Company in accordance with their terms.
7. With respect to the Units,
assuming (i) the taking of all necessary corporate action by the Board to authorize and approve (a) the issuance and terms of the Units, (b) the execution and delivery of the Unit Agreement with respect to the Units, (c) the
issuance of shares of any Common Stock that is a component of the Units, (d) the issuance of shares of any Preferred Stock that is a component of the Units, (e) the execution and delivery of the Senior Indenture or Subordinated Indenture,
as applicable, with respect to any Debt Securities that are a component of the Units, (f) the execution and delivery of the Warrant Agreement with respect to any Warrants that are a component of the Units, (g) the execution and delivery of
the Deposit Agreement with respect to any Depositary Shares that are a component of the Units, (ii) the due filing of an amendment to the Articles with respect to such Preferred Stock and the acceptance of such amendment by the Secretary of
State of Mississippi and (iii) the due execution, countersignature (in the case of any such Warrants), issuance and delivery of (a) the Units, (b) any such Common Stock, (c) any such Preferred Stock, (d) any such Debt
Securities, (e) any such Warrants and (f) the depositary receipts evidencing any such Depositary Shares, in each case upon the payment of the consideration therefor provided for in the applicable definitive purchase, underwriting or
similar agreement approved by the Board, the applicable Senior Indenture or Subordinated Indenture, as the case may be, in the case of such Debt Securities, the applicable Warrant Agreement, in the case of such Warrants, and the applicable
Depositary Agreement, in the case of such Depositary Shares, and in accordance with the provisions of the applicable Unit Agreement, such Units will constitute valid and legally binding obligations of the Company, enforceable against the Company in
accordance with their terms.
Renasant Corporation
Page
6
Our opinions are
subject to: (i) the effect of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of
equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith and fair dealing, and the discretion of the
court before which a proceeding is brought; and (iii) the invalidity under certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with respect to a liability where such
indemnification or contribution is contrary to public policy. We express no opinion as to (i) any provision for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent
such provisions are deemed to constitute a penalty, (ii) consents to, or restrictions upon, governing law, jurisdiction, venue, arbitration, remedies or judicial relief, (iii) advance waivers of claims, defenses, rights or notice,
opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or other procedural rights, (iv) provisions for exclusivity, election or cumulation of rights or remedies, (v) provisions authorizing or validating
conclusive or discretionary determinations, (vi) grants of setoff rights, (vii) proxies, powers of attorney and trusts and (viii) the severability, if invalid, of provisions to the foregoing effect.
The foregoing opinions are limited to the federal laws of the United States and the laws of the State of Mississippi. We express no opinion as
to matters governed by the laws of any other state. Furthermore, no opinion is expressed herein as to the effect of any future acts of the parties or changes in existing law. We undertake no responsibility to advise you of any changes after the date
hereof in the law or the facts presently in effect that would alter the scope or substance of the opinions herein expressed.
This letter
expresses our legal opinion as to the foregoing matters based on our professional judgment at this time; it is not, however, to be construed as a guaranty, nor is it a warranty that a court considering such matters would not rule in a manner
contrary to the opinion set forth above.
We consent to be named in the Registration Statement under the heading “Legal Matters”
as the law firm which passed on the validity of the Securities and to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act and the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ PHELPS DUNBAR, L.L.P.
Exhibit 12
RATIOS OF EARNINGS TO FIXED CHARGES
The
following table sets forth the computation of Renasant Corporation’s consolidated ratio of earnings to fixed charges for each of the years in the five-year period ended December 31, 2014 and for the six-month period ended June 30,
2015.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
|
Six
months
ended
June 30,
2015 |
|
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
| Fixed charges and preferred stock dividends: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest expensed and capitalized on deposits |
|
$ |
6,608 |
|
|
$ |
16,069 |
|
|
$ |
17,050 |
|
|
$ |
19,030 |
|
|
$ |
31,729 |
|
|
$ |
44,487 |
|
| Interest expensed and capitalized on other debt |
|
|
3,815 |
|
|
|
7,711 |
|
|
|
6,353 |
|
|
|
6,945 |
|
|
|
9,672 |
|
|
|
15,790 |
|
| Amortized premiums and discounts related to indebtedness |
|
|
(247 |
) |
|
|
(387 |
) |
|
|
(21 |
) |
|
|
161 |
|
|
|
161 |
|
|
|
(33 |
) |
| Implicit interest expense in annual rent |
|
|
471 |
|
|
|
970 |
|
|
|
907 |
|
|
|
856 |
|
|
|
830 |
|
|
|
762 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges |
|
|
10,647 |
|
|
|
24,363 |
|
|
|
24,289 |
|
|
|
26,992 |
|
|
|
42,392 |
|
|
|
61,006 |
|
| Preferred dividends for purpose of ratios |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges and preferred dividends for purpose of ratios |
|
$ |
10,647 |
|
|
$ |
24,363 |
|
|
$ |
24,289 |
|
|
$ |
26,992 |
|
|
$ |
42,392 |
|
|
$ |
61,006 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Earnings: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Income before income taxes |
|
$ |
44,493 |
|
|
$ |
85,887 |
|
|
$ |
45,746 |
|
|
$ |
33,465 |
|
|
$ |
34,675 |
|
|
$ |
46,693 |
|
| Add: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total fixed charges (from above) |
|
|
10,647 |
|
|
|
24,363 |
|
|
|
24,289 |
|
|
|
26,992 |
|
|
|
42,392 |
|
|
|
61,006 |
|
| Less: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Interest capitalized |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Preferred dividends of subsidiaries |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Total earnings for purpose of ratios |
|
$ |
55,140 |
|
|
$ |
110,250 |
|
|
$ |
70,035 |
|
|
$ |
60,457 |
|
|
$ |
77,067 |
|
|
$ |
107,699 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ratios of earnings to fixed charges: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Excluding interest on deposits |
|
|
12.01 |
% |
|
|
11.36 |
% |
|
|
7.32 |
% |
|
|
5.20 |
% |
|
|
4.25 |
% |
|
|
3.83 |
% |
| Including interest on deposits |
|
|
5.18 |
|
|
|
4.53 |
|
|
|
2.88 |
|
|
|
2.24 |
|
|
|
1.82 |
|
|
|
1.77 |
|
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement (No.
) on Form S-3 of Renasant Corporation and any related Prospectus of our report dated March 2, 2015, related to our audits of the consolidated
financial statements and internal control over financial reporting which are included in the Annual Report on Form 10-K of Renasant Corporation for the year ended December 31, 2014.
We also consent to the reference to our firm under the caption “Experts” in the Prospectus, which is part of this Registration Statement.
/s/HORNE LLP
Memphis, Tennessee
September 15, 2015
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