EXHIBIT 4.2
TRUST AGREEMENT
OF
NEW SOUTH CAPITAL TRUST I
THIS TRUST AGREEMENT is made as of April 2, 1998 (this "Trust Agreement"),
by and among New South Bancshares, Inc, a Delaware corporation, as sponsor (the
"Sponsor"), and Bankers Trust (Delaware), a Delaware banking corporation, as
trustee (the "Trustee"). The Sponsor and the Trustee hereby agree as follows:
1. The trust created hereby shall be known as "New South Capital Trust I"
(the "Trust"), in which name the Trustee or the Sponsor, to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to the
Trustee the sum of $10. The Trustee hereby acknowledges receipt of such amount
in trust from the Sponsor, which amount shall constitute the initial trust
estate. The Trustee hereby declares that it will hold the trust estate in trust
for the Sponsor. It is the intention of the parties hereto that the Trust
created hereby constitute a business trust under Chapter 38 of Title 12 of the
Delaware Code, 12 Del. C. (S) 3801, et seq. (the "Business Trust Act"), and that
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this document constitute the governing instrument of the Trust. The Trustee is
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State substantially in the form attached hereto or in
such other form as the Trustee may approve.
3. The Sponsor and the Trustee will enter into an amended and restated
Trust Agreement or Declaration of Trust satisfactory to each such party to
provide for the contemplated operation of the Trust created hereby and the
issuance of the Preferred Securities and the Common Securities referred to
therein. Prior to the execution and delivery of such amended and restated Trust
Agreement or Declaration of Trust, the Trustee shall not have any duty or
obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law, and the Sponsor shall take any action as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise. However, notwithstanding
the foregoing, the Trustee may take all actions deemed proper as are necessary
to effect the transactions contemplated herein.
4. The Sponsor hereby agrees to (i) reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustee and any of the
officers, directors, employees and agents of the Trustee (the "Indemnified
Persons") from and against any and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
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however, that the Sponsor shall not be required to indemnify any
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Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person. The
obligations of the Sponsor under this Section 4 shall survive the termination of
this Trust Agreement.
5. The Sponsor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, the Registration
Statement on Form S-1 (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such 1933 Act Registration
Statement (including the prospectus and the exhibits contained therein),
relating to the registration under the Securities Act of 1933, as amended, of
the preferred securities of the Trust (the "Preferred Securities") and certain
other securities of the Sponsor; (ii) to file and execute on behalf of the Trust
such applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as the Sponsor on
behalf of the Trust, may deem necessary or desirable to register the Preferred
Securities under the securities or "Blue Sky" laws; and (iii) to execute on
behalf of the Trust such Underwriting Agreements with one or more underwriters
relating to the offering of the Preferred Securities as the Sponsor, on behalf
of the Trust, may deem necessary or desirable.
In the event that any filing referred to in this Section 5 is required by
the rules and regulations of the Commission, or state securities or Blue Sky
laws to be executed on behalf of the Trust by the Trustee, Bankers Trust
(Delaware), in its capacity as Trustee of the Trust, is hereby authorized and
directed to join in any such filing and to execute on behalf of the Trust any
and all of the foregoing, it being understood that Bankers Trust (Delaware), in
its capacity as Trustee of the Trust, shall not be required to join in any such
filing or execute on behalf of the Trust any such document unless required by
the rules and regulations of the Commission, or state securities or Blue Sky
laws.
6. This Trust Agreement may be executed in one or more counterparts.
7. The number of trustees of the Trust initially shall be one (1) and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Sponsor which may
increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law.
Subject to the foregoing, the Sponsor is entitled to appoint or remove without
cause any trustee of the Trust at any time. Any trustee of the Trust may resign
upon thirty days' prior notice to the Sponsor.
8. This Trust Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware (without regard to conflict of laws
principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed as of the day and year first above written.
NEW SOUTH BANCSHARES, INC., as Sponsor
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title:
BANKERS TRUST (DELAWARE), not in its
individual capacity but solely as
Trustee of the Trust
By: /s/ M. Xxxx Xxxxxxx
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Name: M. Xxxx Xxxxxxx
Title: Assistant Secretary
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